Delhi District Court
Fir No. 199/2014 : State vs Tanvir Ps Keshav Puram on 24 March, 2018
FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 101/14)
State Vs. Mohd. Tanvir
FIR No. : 199/14
U/s : 376D/342/363 IPC
& u/s 6 POCSO Act
P.S. : Keshav Puram
State Vs. Mohd. Tanvir
S/o Mohd. Akbar
R/o House no. 234, First floor,
Chaudhary Hotel, Ram Pura,
Delhi.
Permanent Address :
Village Rampur, PS Raniganj,
Distt. Arariya, Bihar
Date of institution of case : 06.05.2014
Date of arguments : 23.03.2018
Date of pronouncement of judgment : 24.03.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 24.03.2014, DD No.45 Page 1 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram B, was recorded on PCR call in respect of rape with a girl child aged about 7/8 years. The IO reached BJRM Hospital where victim was already shifted by a private hospital vehicle. The IO obtained the MLC of the victim with alleged history of sexual assault on 24.03.2014 at 9:30 am. The mother of victim girl was counseled since victim was declared unfit for statement by the doctor. The statement of her mother was recorded to the effect that she is residing with her family as tenant on the second floor at Ram Pura and today she sent her victim daughter F along with her son D to get biscuits from the market. Her son purchased the biscuits and left the victim child at ground floor near stairs and asked her to go up stairs. After some time the victim girl came to her weeping and blood was coming from her private part. She asked her whether the victim has fallen down. On that the victim answered Hotel Wala. On checking she found that victim was bleeding from her vagina. She brought the victim child on the first floor and there the child pointed out towards accused Tanvir and JCL Rohit. She also noticed the blood stains on the floor of that room. She apprehended Rohit and in the meantime the other neighbours who gathered there apprehended accused Page 2 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram Tanvir. In the meantime her landlord who was running an eatery (Dhaba) at ground floor also reached there. She took her daughter to private hospital where she was advised to take her to some big hospital. In the meantime the landlord called the police who took them to BJRM hospital. The victim child was not in a condition to speak. On her statement the present FIR was registered. The accused before this court and JCL Rohit were apprehended by police and medically examined and the doctor seized their samples and handed over to the IO. The crime team also reached at the place of incident and collected the blood sample from the floor of the room which were also handed over to the IO. Later on, the victim was examined and her statement u/s 164 Cr. PC was got recorded. After completion of the investigation, the present charge sheet was filed in this court against accused Tanvir whereas JCL Rohit was produced from Juvenile Board.
2. Copies were supplied to the accused and charges for offence punishable u/s 363/366/342 IPC and offence u/s 6 of the POCSO Act read with Section 5 (m) and (g) of the POCSO and in the alternate for the offence Page 3 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram punishable u/s 3762(i) and 376D IPC were framed against the accused on 23.05.2014 to which he pleaded not guilty and claimed trial.
3. Prosecution, to prove its case, has examined as many as 18 witnesses.
PW1 is the Ld. MM who recorded the statement of mother of the victim u/s 164 Cr. PC Ex. PW1/B and gave her certificate PW1/C. There is no cross examination to this witness. PW2 is the Welfare Office who counseled the child victim on 24.03.2014. there is no cross examination.
PW3 is the child victim and her testimony is produced herein for the sake of brevity: Q: Beta Kya hua tha?
A. jab main bhai ke saath biscuit lene gayi thi, hotel wala mujhe pakad liya.
Q: Beta phir kya hua tha?
A. Phir khoon baha.
Q: Beta kaha se khoon baha tha?
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FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram
Court Observation : The witness has pointed towards her private part by pointing her finger.
Q: Beta khoon kyo baha tha?
A. Usne haath se bahaya tha.
Court observation : The child has pointed out finger towards her private part again to suggest as if the hotelwala had inserted his finger into her private part.
Q: Beta hotelwala kaha par rehta tha?
A. Hamare ghar ke niche rehta tha.
Q: Beta hotelwala ke saath or bhi koi tha?
A. Ek or tha.
Q: Beta phir kya hua ?
A. Hotelwala mujhe room me le gaya or khoon baha
diya.
Q: Beta phir kya hua tha?
Court observation : At this stage the child has started feeling destructed and is not responding to the Page 5 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram questions anymore. She has been offered another pack of Frooti. She has consumed the drink and has given indication as if she is returning to comfort zone.
Q. Beta kya tum hotelwale ko pehchan sakti ho.
Ans. Haan.
At this stage, the child has correctly identified the accused Mohd. Tanvir from the design of wooden partition XXX by Sh. B.N. Tiwari, Ld. counsel for accused.
Q. Beta mera ye kehna hai ke jo pichhe baithe hai ye vo uncle nahi hai jinhone aapka haath se khoon nikala tha ?
A. Ye kehna galta hai.
PW4 is the complainant I.e mother of the child victim who has supported her complaint in the court and stated that on 24.03.2014, she sent her daughter F alongwith her son D to get biscuits from the market and Page 6 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram her son after getting the biscuits left the victim near the stairs of the ground floor. After some time, the victim child came to her while weeping and she was bleeding from her private part. She asked her as to what happened and the victim kept her saying hotelwala. She got suspicious after hearing the word hotelwala and brought her daughter on the first floor where the victim pointed out towards the room where JCL Rohit was present. On seeing them, Rohit and the accused before this court became perplexed. She also found blood stains on the floor of the room. She shouted very loudly and the neigbhours gathered and JCL Rohit and accused herein were apprehended. She took her daughter to hospital who refused to admit her seeing the condition. She then took her to BJRM hospital. Police was called by her landlord who was also the owner of the eatery where accused Tanvir was working. The daughter was admitted to hospital and her statement Ex. PW4/A was recorded. Police arrested accused Tanvir and JCL Rohit in her presence. Later on , her statement and statement of the victim was also recorded by lady Judge. She correctly identified the accused in the court. In her brief cross examination she denied the suggestions that accused was Page 7 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram not present in the room or that she has falsely implicated the accused in connivance with landlord in order to get rid of accused. PW5 is ld. MM who record the statement of victim u/s 164 Cr. PC Ex PW5/B and gave her certificate Ex. PW5/C. There is no cross examination.
PW6 is duty officer who recorded FIR Ex. PW6/A on 24.03.2014 and made endorsement on the rukka Ex. PW6/B. There is no material cross examination.
PW7 is the landlord and the owner of the dhaba where accused was working . He stated that accused Tanvir was working in his dhaba and one day prior to the incident JCL Rohit came to him in search of work. He refused to keep him but since it was raining heavily on that day, he offered him food. Though he asked for one night shelter but the witness refused it. But he some how managed to stay with Tanvir on the mezzanine floor. On 24.03.2014, at about 10 :10 am, the complainant came to her and informed that her daughter has been sexually assaulted by accused Tanvir and Rohit. He apprehended both of them with the help of other members of the dhaba.
He accompanied the complainant and daughter to Garg hospital where
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FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram
doctor advised them to take the victim to some big hospital. He called the police who reached the Garg hospital and took the victim and her mother to some other hospital. The local police also reached there and arrested both the accused. There is no cross examination to this witness.
PW8 is Ct who took 13 sealed pullandas, 3 sample seal and one FSL form from MHC(M) and deposited the same with FSL on 01.04.2014. There is no cross examination of him. PW9 is the lady Ct. who was at that time posted with PCR HQ as Channel operator. She received information at about 11:15 am about rape with a 7/8 years girl child victim who was taken to Garg hospital. She filled the PCR form Ex. PW9/A and dispatched the same on NET. There is no cross examinatin.
PW10 is the police officer who apprehended the JCL Rohit and who was subsequently sent to observation home. There is no cross examination.
PW11 is father of the victim who has supported the prosecution case and handed over the birth certificate of the victim child Ex. PW11/A to the IO vide seizure memo Ex. PW11/B. There is no material cross examination of this witness.
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FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram PW12 is an employee of the dhaba where accused was working and stated that on 24.03.2014, he was working in the dhaba and accused alongwith Rohit had committed wrong act with minor girl. He admitted in his cross examination that he did not see the sexual assault committed upon the victim child.
PW13 is the Incharge Mobile Crime Team who collected the blood stains from the spot and also got clicked the photographs through one constable. He filed his detailed report Ex. PW12/A and also identifed the photographs Ex. PW12/B1 to B9. There is no cross examination.
PW14 is the first IO who got DD NO.45B Ex. PW14/A for investigation. She reached to BJRM hospital and found the victim child under treatment. She called the counselor and got the mother of the victim counseled. The child was not fit for statement. She recorded the statement of complainant and also seized the sealed exhibits of the victim child vide memo Ex. PW14/B. Thereafter, she visited the spot and ASI Devender handed over 4 sealed pullandas to her vide seizure memo Ex. PW14/C which were containing the exhibits found by the crime team at the spot. She Page 10 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram prepared the site plan at the instance of witness Bharat Ex. PW14/D. She arrested accused Tanvir and JCL Rohit was apprehended. Both were got medically examined and their samples were seized vide seizure memo Ex. PW14/H and Ex. PW14/J. Later on , the staetment of the complainant and the statement of the victim child were got recorded u/s 164 Cr.P.C and preesnt charge sheet was filed. She was briefly cross examined and there is nothing relevant to disbelieve her evidence.
PW15 is the police officer who reached the spot while he was on patrolling duty and found both the accused already apprehended by public persons. In the meantime, crime team reached there and handed over the exhibits to the IO. There is no cross examination.
PW16 is the principle of the first attended school of the child victim where the date of birth of the victim was recorded as 17.05.2010 on the basis of her birth certificate submitted by her father. There is nothing in the cross examination to disbelieve the date of birth of the victim.
PW17 is CMO BJRM Hospital who was deputed by MS BJRM Hospital to deposed on behalf of doctor Latika, Dr. Mohit Tiwari and Dr. Page 11 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram Devender. She identified the signatures of doctor Pankaj who medically examined accused Tanvir vide MLC No.14/F. She also identified the signatures of Dr. Bheem who conducted the potency test of the accused and gave his report Ex. PW17/A. She also identified the signatures of Dr. KhaleeluUllah the then JR who initially examined the victim and gave his report on the MLC Ex. PW4/B. There is no material cross examination.
PW18 is the Senior Scientific Officer from FSL Laboratories who gave the DNA report Ex. PW18/A and also prepared the data allelic chart Ex. PW18/B. In the DNA profiling, the DNA profile generated from the blood of the accused was found in the DNA profile generated from the pajami of the victim, which she was wearing at the time of sexual assault. The witness in the cross examination denied the suggestion that samples were not duly sealed or that the same were tampered.
4. It has been argued for the accused that there is delay in lodging the FIR and the alleged incident occurred about 9.30 am, but the PCR call was made at 11.20 am. There is variations in the statements of the parents of Page 12 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram the victim. The mother of the victim has stated that the victim pointed out towards both the accused, whereas she further states that accused Tanvir hide himself in the toilet and later on, was apprehended by the public. It is stated that blood samples of the accused was taken again and apprehension of tampering with the sample cannot be ruled out. It is argued that how a five year girl can identify the accused in the court after such a long gap and the entire story seems to be cooked up. It is stated that accused did not commit any wrong act with the victim and it might be that JCL Rohit has done it, but accused has been wrongly implicated at the instance of the landlord of the complainant.
5. Ld. Addl. PP on the other hand has argued that the statement of victim, her MLC, the FSL result all shows that the crime has been committed by the accused and there is no force in the arguments of the defence counsel that a five year old child cannot identify a person after a long gap and as such, prosecution has proved commission of all the offences beyond reasonable doubt.
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FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram 6. I have heard the submissions. As far as the age of the victim is
concerned, same was never in dispute, which otherwise, has been duly proved through her birth certificate Ex. PW11/A produced by her father before the IO. On the basis of this birth certificate, the date of birth of victim was recorded in her first attended school, which has been duly proved by the Principal of her school i.e. PW16. There are no reasons to disbelieve the birth certificate of the victim as well as the record of her first attended school. The prosecution has proved the date of birth of the victim as 17.05.2010 and she was less than 4 years on the date of commission of offence i.e. 24.03.2014.
7. Coming to the main incident, I do not find any delay in calling the PCR as argued by ld. Defence counsel. The PCR call was received at 11.15 am and thereafter, DD no. 45B was registered. The alleged incident of sexual assault happened around 10.00 am. PW4 the complainant in her statement has stated that she sent the victim and her brother for getting Page 14 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram biscuits at about 9.30 am, which means that the incident happened sometime thereafter. It cannot be said that there was inordinate delay in calling the PCR as the complainant has stated that she initially came to first floor along with the victim to identify the person, who committed wrong act with the victim and thereafter, she shouted loudly and public persons gathered there and apprehended the accused and the JCL. Some time must have been spent in fetching the biscuits after 9.30 am and in the accused committing this act, then the victim reporting the same to her mother and mother coming down stairs and apprehending the accused and as such, there is no delay as alleged.
8. As far as the veracity of the testimony of the victim and her parents is concerned, I do not find any contradictions or improvements in their testimonies. The victim in the statement given to ld. M.M under 164 Cr.P.C stated that "hotel wala ladka inserted something in her susu wali jagah". The victim could not explain as to what was inserted into her susu wali jagah and at that stage, ld. M.M closed the statement. It cannot be ignored Page 15 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram that the victim is only a five year old child and may not be in a position to explain as to what was inserted in her private part before ld. M.M.
9. In the court, she has categorically stated that she bleed from her private part and accused used his hand to do that. The act of the accused can be clearly understood from the testimony of the victim child. Further, FSL result shows that the DNA profile generated from the blood sample of the accused was found in the payjami of the victim seized by the IO. This shows that accused sexually assaulted the victim, which resulted in positive FSL result. Further, the MLC of the victim also shows that she was sexually assaulted and the doctor found bleeding per vaginum and hymen was also found torn and there was a tear in 6 O'clock position of size 1.5 x 1 cm and bleeding. The sexual assault was to the extent that victim was found to be not fit for statement by the doctors. The doctor also seized the blood soaked payjami of the victim, which was sent to FSL, wherein the DNA profile of the accused was found. Further the fact that the accused was an employee of the eatery (dhaba) on the ground floor and that he was Page 16 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram residing on the first floor and the victim with her family were living on the second floor was not disputed by the accused. Accused also did not dispute that he was apprehended on the spot by the public and has failed to discharge the presumption u/s 29 of the POCSO Act.
10. The prosecution has proved beyond reasonable doubt the commission of offence u/s 363 IPC as victim was taken to his first floor room by the accused. As far as the offence u/s 366 IPC is concerned, the prosecution has failed to prove that accused kidnapped her with intention of illicit intercourse or with intention to compel her to marry against her will. She was only five year old girl and the intention of the accused was to sexually assault her and not to have illicit intercourse. There is difference between sexual assault and illicit intercourse and from the record, it appears that the intention of the accused was to sexually assault the five year old victim. The prosecution has not proved the ingredients of the offence punishable Section 366. The prosecution however, has proved the commission of offence punishable u/s 342 IPC as victim was wrongfully Page 17 of 19 FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram confined by the accused in his room on the first floor during the period of sexual assault. The accused as such, is convicted for the offence punishable u/s 342 IPC. The prosecution has, further proved the commission of offence punishable u/s 6 of POCSO Act read with Section 5
(m) of the POCSO Act. The prosecution however, has failed to prove the commission of offence punishable u/s 6 r/w 5 (g) of POCSO Act i.e. offence of gang penetrative sexual assault. The victim in the court stated that hotelwala committed wrong act with her. She did not say that there were two persons, who committed wrong act with her. Accused admittedly was working in the hotel of PW7 and not JCL Rohit. The prosecution has failed to prove the commission of gang penetrative sexual assault on the victim. Accused, as such is convicted for the offence u/s 363/342 IPC and u/s 6 of POCSO Act read with Section 5 (m) of the POCSO Act. As the accused has already been convicted u/s 6 of POCSO Act, there is no need to convict him in alternate Section 376 (2) (i) IPC. The accused is however, acquitted for the offences punishable u/s 366 IPC.
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FIR No. 199/2014 : State V/s Tanvir PS Keshav Puram
11. Let the convict be heard on the point of sentence on 27.03.2018.
(Announced in the open (Amit Kumar)
Court on 24.03.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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