Delhi District Court
Sc No: 45/15 State vs . Sunil Kumar on 30 January, 2016
SC No: 45/15 State Vs. Sunil Kumar
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 45/15
FIR No. 75/15
Police Station Model Town
Under Section 354/354A/354D/506
IPC & 8 POCSO
ID No. 02404R0-109012015
State
Versus
Sunil Kumar
S/o Sh. Tara Chand,
R/o Village Rajwapur, PS Bargayan,
District Sitapur, U.P. ......Accused
Date of institution 23.03.2015
Judgment reserved on 13.01.2016
Judgment Pronounced on 28.01.2016
Decision Convicted
Judgment 1 of 21
SC No: 45/15 State Vs. Sunil Kumar
JUDGMENT
1. Accused is facing trial on allegations of harassing, sexually assaulting and stalking victims N & K, School going girls aged about 15 & 16 years.
2. FIR in question was registered on the written complaint lodged by victim N, wherein she alleged that on 22.01.2015 at about 1:15 PM, she along with her friend (victim K) were returning home from School. As they reached at Bus Stand, Gurmandi accused was standing there. Accused passed smiles on them. They ignored but accused started following them and started passing obscene comments on them. Near Tripulia Chowk accused caught hold hands of both the victims and started talking to them with obscenity. Victim got released their hands and after crossing the road went towards Kabir Nagar, accused followed them and again started abusing them and tried to catch them. A couple saved victims. Then both the victims went back to their home and narrated the incident to their parents. Parents of the victims along-with them Judgment 2 of 21 SC No: 45/15 State Vs. Sunil Kumar reached at Tripulia Gate where accused was found sleeping. When parents of the victims reasoned him as to why he misbehaved with the victims, accused started threatening them and then the matter was reported to the police.
3. Accused was arrested from the spot and charge- sheeted. Charge for the offence punishable u/s 354/354D IPC & 8 POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution in all has examined 10 witnesses.
5. PW1 is victim. She supported the allegations made by her in her complaint. She testified that on date of incident, she was returning to her home with her friend K. While she was crossing the road from Gurmandi Bus Stand, accused was standing there. After seeing us them, he started passing smiles and made comments and caught hold of her friend K. They tried to ignore him but accused Judgment 3 of 21 SC No: 45/15 State Vs. Sunil Kumar started following them. Some public persons were telling accused not to misbehave with the them but accused continued to do so. They could make out that accused was drunk and passed the comment that "ye de de tu meri hai". Meanwhile, uncle of victim K who is an Auto driver came there and rescued them. Accused even pelted stones on his auto. After reaching house, she narrated the entire incident to her mother who called her father. Thereafter, she along with victim K and their parents went spot where accused was found sleeping there. When her parents tried to reason out from accused, accused started fighting with them. Then her mother called at 100. Police reached at the spot and brought the accused to the police station. She gave a written complaint in the PS which is proved as Ex. PW1/A. She proved arrest & personal search of accused vide memo Ex. PW1/B & C. Her statement was recorded before Ld. MM as Ex. PW1/D. She also showed the place of occurrence to the police. She duly identified the accused.
Judgment 4 of 21
SC No: 45/15 State Vs. Sunil Kumar
6. PW2 is mother of victim N. She deposed that after coming back from School her daughter disclosed her that a boy had misbehaved with her and her friend K while they were coming back from the School. Then she called her husband. They went to Tirpulia Gate where accused was found sleeping on the road and was drunk. When her husband asked accused as to why he misbehaved with her daughter, accused started threatening him. Then she called at 100. Police reached the spot and apprehended the accused. She also duly identified the accused.
7. PW3 father of victim N deposed that on 22.01.2015, on receipt a call from his wife at about 01:45 pm that somebody misbehaved with his daughter he immediately reached home and along with his daughter and parents of victim K went to Tirpulia Gate where they found accused sleeping on the road, he was drunk When he asked accused as to why he misbehaved with his daughter the accused started threatening them. Then his wife called at 100.
Judgment 5 of 21
SC No: 45/15 State Vs. Sunil Kumar
The police reached the spot and apprehended the accused. He deposed that accused was arrested by the police in his presence and he duly identified the accused.
8. PW4 Victim K deposed that on 22.01.2015, she was studying in class 10th. After her School got over, she was returning with her friend N. While they were crossing the road from Gurmandi Bus Stand, a boy was standing there. After seeing them he started passing smiles at them and made comments like "tu meri hai", "ye de de tu meri hai". That boy also caught hold of their hands. They tried to ignore the boy but he started following them. Some public persons intervened about his conduct but the boy continued to do so. Meanwhile, one of her uncle who is an Auto driver came there and rescued them. He even pelted stones on auto of her Uncle. After reaching house, she narrated the entire incident to her parents. Thereafter, she along with her friend and their parents went to Tirpulia Gate. They found the said boy sleeping there and he was drunk. When her parents try to reason out from Judgment 6 of 21 SC No: 45/15 State Vs. Sunil Kumar him, he started fighting with them and threatened them. Mother of her friend reported the matter to police. Police took him to police station and arrested him. Her statement was recorded by Ld MM proved on record as Ex PW4/A. However, she failed to identify the accused.
9. PW5 father of Victim K deposed that on date of incident, his wife called him that his daughter came to home crying and in frightened condition. He immediately rushed to home and he along with his daughter and parents of her friend 'N' went to Tirpulia Gate where they found accused sleeping on the road, he was drunk. When they woke him up and inquired from him as to why he misbehaved with their daughters, the accused started misbehaving with them. Then mother of victim N called at 100. He deposed that accused was arrested by the police in his presence and he also identified the accused.
Judgment 7 of 21
SC No: 45/15 State Vs. Sunil Kumar
10. PW-6 mother of victim K also deposed on the similar lines that of her husband and other witnesses.
11. PW-7 Raman Vij, Sub-Registrar proved the date of birth of the victim 'K' as 06.10.1998 as per birth certificate Ex. PW7/A, he also proved the date of birth of the victim 'N' as 31.01.2000 as per birth certificate Ex. PW7/B of the victims issued by the Sub-Registrar of Birth and Death, MCD.
12. PW8 HC Vijay Kumar was posted at PCR unit and he reached the spot after receiving the information regarding misbehavior with victims. At spot, he met victims and her parents and found that accused who was drunk was apprehended by the public persons. He took the accused to PS Model Town.
Judgment 8 of 21
SC No: 45/15 State Vs. Sunil Kumar
13. PW9 HC Jai Bhagwan proved the FIR in question as Ex PW9/A, his endorsement on the rukka as Ex PW9/B and certificate u/s 65(B) Indian Evidence Act as Ex PW9/C.
14. PW10 SI Manmohan Ahuja recorded the statement of complainant and prepared rukka as Ex. PW10/A and got registered the FIR. He prepared site plan at the instance of complainant as Ex. PW10/B. He arrested the accused and recorded the disclosure statement of accused as Ex. PW10/C. He got recorded the statements of the victims u/s 164 Cr.P.C and obtained birth certificates of victims.
15. On conclusion of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. wherein the accused stated that on the date of incident, he was drunk and was crossing the road and at that time, a person who was with the victims, started quarreling with him. There was a minor scuffle between him and the victims. He did not pass any comments on them. At about 4 Judgment 9 of 21 SC No: 45/15 State Vs. Sunil Kumar PM police arrested him from the place where he was sleeping. He claimed his innocence.
16. Ld. Amicus Curiae has argued that the prosecution has miserably failed to prove its case. It is submitted that PW4/ Victim K failed to identify the accused and PW1/Victim N testified that accused was in drunken state and in that state he passed remarks on them and he had no intention to sexually assault them. It is thus, submitted that in these facts accused cannot be held guilty of sexually assaulting or harassing the victims.
17. Per contra, it has been submitted on behalf of the State that PWs 1 to 6 all have supported prosecution version. Their testimonies are trustworthy and reliable and the same clearly establishes the guilt of the accused. It is submitted that the accused has been duly identified by the Victim 'N' and parents of the victim. Hence, the prosecution case has been proved against the accused beyond any reasonable doubt.
Judgment 10 of 21
SC No: 45/15 State Vs. Sunil Kumar
18. I have heard the Ld. Amicus Curiae as well as the Ld. Addl. PP and perused the record.
19. Age of victim:- Prosecution has proved the date of birth of the victims as 06.10.1998 & 31.01.2000 as per their birth certificates Ex. PW7/A & B issued by the Sub-Registrar of Birth and Death, MCD. That goes to show that the victims were 17 & 15 years old at the time of incident and thus, both are "child" within the meaning of POCSO Act.
20. Identification of accused : First line of argument of the defense is that Victim K has failed to identify the accused and therefore, the testimony of her friend who was with her at the time of incident cannot be believed to establish the identity of the accused. This argument is not convincing for the simple reason that not only Victim 'N' but her parents as well as parents of victim 'K' have duly identified the accused. Accused in his statement Judgment 11 of 21 SC No: 45/15 State Vs. Sunil Kumar recorded u/s 313 Cr.P.C also admits that he had a minor scuffle with the victims on the date of incident. Hence, it is not a case of mistaken identity.
21. Sexual Assault: It is argued that PW1 herself testified that that accused was in drunken state and in that state he passed remarks on them and accused had no intention to sexually assault them. Therefore, the charge for sexually assaulting the victims against the accused stands not proved.
22. Victims (PWs 1 & 4) are School going girls and both of them in unison have deposed that after their School got over, they were returning and while they were crossing the road from Gurmandi Bus Stand, accused was standing there. After seeing them he started passing smiles and made comments like "tu meri hai", "ye de de tu meri hai". That boy also caught hold of their hands. They tried to ignore the boy but he started following them.
Judgment 12 of 21
SC No: 45/15 State Vs. Sunil Kumar
23. No material contradiction has come in cross- examination of PWs 1 & 4 to disbelieve their deposition. Both of them are strangers to accused and no motive has been attributed to them for making such allegations against the accused. More so, accused in his statement recorded u/s 313 Cr.P.C also admits that a scuffle took place between him and the victims. But the reason given by the accused for the scuffle is unconvincing because as per the testimony of the victims no person was accompanying them when they were returning from School.
24. Thus, there is convincing evidence on record that the accused not only passed comments on the victims but he followed them as well when both of them went across the road.
25. However, the case of sexual assault against the accused stands not proved in view of the fact that there is contradiction in the testimony of victims N and K as to the mode of assault. victim 'N' testified that accused held hand of her friend but Judgment 13 of 21 SC No: 45/15 State Vs. Sunil Kumar victim 'K' has testified that accused held hands of both of them. Thus, it is not established as to whose hands the accused held. More so, in her testimony, PW1 admits that accused was in drunken state and in that state he passed remarks on them. She further testifies that accused had no intention to sexually assault them. Thus, it become evident that it is not a case of sexual assault.
26. Conclusion: From discussions herein above, it emerges that:
i) Testimonies of PW1 & 4 establishes that accused passed comments on victims and followed them.
ii ) Evidence of sexual assault on the victims is lacking.
iii) Accused has been duly identified by the witnesses.
iii) Parents of victims corroborated chain of events.
iv) Accused failed to establish any defence.
Judgment 14 of 21
SC No: 45/15 State Vs. Sunil Kumar
27. Accordingly, it is held that the testimonies of the eye witnesses are trustworthy and reliable in respect of the incident of sexual harassment on the victims by the accused. Allegations also found corroboration from the deposition of the parents of the victims. Allegations against the accused of sexually harassing and stalking stands proved. Thus, the accused stands convicted for the offence punishable U/s 354D IPC and 12 POCSO Act. Matter be listed for hearing arguments on quantum of sentence on 30.01.2016.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
Judgment 15 of 21
SC No: 45/15 State Vs. Sunil Kumar
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 45/15
FIR No. 75/15
Police Station Model Town
Under Section 354/354A/354D/506
IPC & 8 POCSO
ID No. 02404R0-109012015
State
Versus
Sunil Kumar
S/o Sh. Tara Chand,
R/o Village Rajwapur, PS Bargayan,
District Sitapur, U.P. ......Convict
ORDER ON SENTENCE
1. Accused Sunil Kumar has been convicted 354D IPC & 12 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 16 of 21
SC No: 45/15 State Vs. Sunil Kumar
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 12 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 24 years. He has already undergone about 12 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 Judgment 17 of 21 SC No: 45/15 State Vs. Sunil Kumar first time offender as such benefit of Probation of Offender's Act be granted to the convict.
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 simple imprisonment for the period already under- gone by him in the Judicial Custody that is of 1 year and 7 days for the offence punishable u/s 354 D & u/s 12 POCSO Act.
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 Judgment 18 of 21 SC No: 45/15 State Vs. Sunil Kumar 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 19 of 21
SC No: 45/15 State Vs. Sunil Kumar
8. Therefore, in order to provide Restorative and Compensatory Justice to the victims, Rs. 25,000/- (Rs. Twenty Five Thousand only) is granted to the each of the Victims 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 Judgment 20 of 21 SC No: 45/15 State Vs. Sunil Kumar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 34-37, Lawyer Chamber Block, High Court of Delhi.
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
30.01.2016
Judgment 21 of 21