Delhi District Court
State vs Gopi Nisha Mallah on 24 April, 2018
: 1 :
IN THE COURT OF MS KAVERI BAWEJA
ADDITIONAL SESSION JUDGE05 (CENTRAL)
TIS HAZARI, DELHI
Sessions Case No.: 28195/2016
State versus Gopi Nisha Mallah
S/o Sh. Jairam Mallah
Current Address: H. No. 10324,
Tokriwalan, Azad Market, Delhi
Permanent Address: A23, Gur Mandi,
Rajpura, Delhi and
A3, Gur Mandi Rajpura, Delhi
Case arising out of:
FIR No. : 15/2014
Police Station : Bara Hindu Rao
Under Section : 363/376(2)(m)/377 IPC &
Sections 3/4/6 POCSO Act
Date of Institution : 05.03.2014
Judgment reserved on : 13.04.2018
Judgment pronounced on : 24.04.2018
JUDGMENT
CASE OF THE PROSECUTION
1. The case in hand was registered on the basis of complaint Ex. PW1/A made by Smt.'R' to the effect that she is residing at Tokri Walan, SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 2 : Azad Market, Delhi and that on 02.02.2014 at 6:30 PM, her three daughters including the victim 'K' [name withheld in order to protect the identity of the victim] aged about 8 years were playing in the gali. Thereafter, at about 7:30 PM, her daughter 'A' aged about 7 years came to her and told her that one uncle had lifted 'K' in his lap on the pretext of giving her some eatables. The Complainant 'R' immediately made a call to her husband and her family members viz., Jeth, Jaithani and sisterinlaw and they all left from the house in search of 'K'.
2. The Complainant 'R' further stated in her complaint that when by 9 PM, 'K' could not be traced out and they were going to PS Bara Hindu Rao to lodge a complaint and reached near gali Zameer Wali, Barat Ghar, they saw one person aged about 2025 years along with 'K', who was holding the hand of her daughter 'K'. Upon seeing the Complainant 'R', her daughter 'K' started weeping. The husband identified that person to be Gopi and upon his asking as to where he found his daughter 'K', Accused Gopi tried to escape but husband of Complainant 'R' apprehended him. Threafter, upon lifting 'K', the Complainant noticed that the underwear of her daughter were wet and that human excreta was also there in her underwear. Upon inquiry, 'K' told that Accused Gopi had taken her on the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 3 : pretext of giving eatable items and had taken her to somewhere and had inserted his finger in her 'Latrine' and then inserted his 'shushu' in her 'shushu'. In the meantime, the husband of the Complainant had called his brother and handed over Accused Gopi to him. Her husband also told the Complainant that Accused Gopi is the brotherinlaw of Dharmender and is the brother of Geeta, who is wife if Dharmender and are residing nearby their house in H. No.10324. Thereafter, both Complainant and her husband took their daughter 'K' to the Hindu Rao Hospital and upon seeing the condition of their daughter 'K', the examining doctor called the police, who recorded the statement of the Complainant in this regard.
3. On the basis of the aforesaid complaint, the present case was registered under Sections 363/376/377 IPC & Section 3 & 4 POCSO Act against the Accused. During the course of investigation, Accused Gopi was apprehended at the instance of family members of the victim and the disclosure statement of the Accused was also recorded. Lateron Accused Gopi was arrested and his medical was got conducted vide MLC No.676/2014. Thereafter, the exhibits with respect to Accused and victim were collected from the examining doctor and were sent to the FSL, Rohini, Delhi for expert opinion. During the course of further SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 4 : investigation, the statements under Section 164 Cr.PC of the victim, her sister 'A' and her mother were also got recorded before the Learned MM. Further, upon revealing that during investigation the victim child had sustained grievous injuries during the alleged incident of rape committed by Accused, Section 376(2)(m) IPC and Section 6 POCSO were added. Thereafter, after completion of investigation, charge sheet was filed in the court.
CHARGE
4. On the basis of material on record, prima facie charges under Sections 363/376(2)(i)(m)/326 IPC and Section 6 of POCSO Act were framed against the Accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. The Prosecution examined 21 witnesses in order to bring home the guilt of the Accused.
Public Witnesses
6. The victim 'K' was examined as PW4. For the sake of brevity and in order to avoid repetition, the deposition of PW4 Victim SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 5 : 'K' as well as her mother 'R' who is the Complainant, shall be discussed in detail later on in the course of the judgment.
7. PW2 'K.K.' is father of the victim. He deposed that on 02.02.2014 at about 7:30 PM, he had received a call from his wife that her daughter 'K' was missing and she asked him to come home. At that time, he was as his shop. He, accordingly, rushed to home. PW2, his wife and his brother made a search of Prosecutrix 'K', but no clue was found till 9 PM.
8. PW2 further deposed that at 9 PM, while they were going to PS Bara Hindu Rao to lodge an FIR via Zameer Wali Gali and they reached near Barat Ghar, they saw that one person was coming towards them along with her daughter 'K'. When that person came closer to them, he identify the said person to be Accused Gopi. PW2 also deposed that he knew the Accused as he is brotherinlaw of one Dharmender from whom, he had taken the godown on rent. When he made an inquiry from Accused Gopi about his daughter, he tried to escape. Consequently, he apprehended him and made a call to his brother named Sanjay and called him at Barat Ghar. After handing Gopi to Sanjay, PW2 and his wife took Prosecutrix 'K' to Bara Hindu Rao Hospital as her condition was SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 6 : bad.
9. PW2 further deposed that on the way to hospital, his wife made inquiry from Kanan, who told to his wife that Accused had inserted his finger in her 'shushu' and thereafter inserted his penis in her 'shushu' (vagina). When they checked the underwear the pajami of the Prosecutrix 'K', his wife found that the same were wet with blood. In the hospital, doctors examined the Prosecutrix 'K' and they informed the police and police recorded their complaint after making inquiry from them. PW2 also correctly identified Accused in the court.
10. PW3 'A' is the sister of the Prosecutrix. She deposed that between 5 PM to 6 PM, she and her brother and sisters were playing in the gali and one uncle came there and asked all of them that he would give some eatables. Thereafter, PW3 and her younger sister 'T' went upstairs 'K' remained behind us. PW3 further deposed that on reaching home, her mother met her in the house and she told her mother that one uncle came there and asked that he would give some eatables items. PW 3 also correctly identified her signatures on the statement which was recorded by the Learned MM under Section 164 Cr.PC and proved that same as Ex. PW3/A. SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 7 :
11. PW5 is Ms. Shashi Gupta, Principal, Laxmi Devi Girls Sr. Secondary School, Pahari Dheeraj, Delhi. She had brought the record of student i.e. Prosecutrix 'K', as per which, 'K' was admitted in their school on 27.03.2010 in Ist Standard vide Admission No.11307. She further deposed that at the time of admission, parents of Prosecutrix 'K' had submitted the original coy of birth certificate, wherein her date of birth is mentioned as 31.01.2005. This witness proved the copy of the certificate as Ex. PW5/A, copy of admission form as Ex.PW5/B and attested copy of birth certificate as Ex. PW5/C.
12. PW9 is Sh. Sunil, brother of PW2. He deposed that on 02.02.2014, at around 8-8:15 PM, he received an information through his brother 'K.K.' that her daughter 'K' is missing. Thereafter, they searched for 'K'. At around 9:059:10 PM, he received the information through phone from his brother 'KK' that 'K' has been found near Barat Ghar, Gali Jameer Wali and his brother advised her to reach at the spot. Accordingly, PW9 reached there and there he met his brother 'KK' and his wife 'R' along with Prosecutrix 'K'. At that time, one person who was already apprehended by his brother, who informed PW9 that the said person is the brotherinlaw of his neighbour Dharmender and that the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 8 : name of the said person is Gopi.
13. PW9 further deposed that at that time Prosecutrix 'K' was weeping. Accused Gopi was handed over to him and his brother and his wife was gone to the hospital for treatment of Proescutrix 'K'. PW9 waited at the spot for a long time for the arrival of 'KK' and other family members. When none turned up, PW9 took Accused Gopi to PS Bara Hindu Rao and produced him before the police. PW9 also deposed that he was informed by the police that they had the information about the incident and the proceedings would be conducted after arrival of the IO. Thereafter, PW9 and Accused Gopi were made to sit in the PS. At about 6 AM on 03.02.2014, IO came at PS and formally arrested the Accused vide memo Ex. PW9/A bearing signatures of PW9 at point A. PW9 also correctly identified the Accused in the court and further deposed that the personal search of the Accused was also conducted vide memo Ex. PW9/B. Doctors
14. PW6 Dr. Kritya Dubey, Casualty Medical Officer, Hindu Rao Hospital, Delhi deposed that on 03.02.2014 at around 6:30 AM, she medically examined Accused Gopi, who was brought by Ct. Harish for SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 9 : his medical examination with the history of assault by public. She examined the patient vide MLC Ex. PW6/A bearing her signatures at point A. PW6 further deposed that on local examination, she found that the patient had multiple small bruises present on upper back on right side and middle back on right side. She also deposed that the patient was give primary treatment and was advised medicines and referred to surgery Emergency Medical Officer and Forensic Medical officer.
15. PW6 further deposed that she had also taken the blood sample on gauze piece of patient and after obtaining the blood sample, she kept the same in a parcel and it was duly sealed with the seal of HRH and she also put her signatures on parcel and handed over the same to Ct. Harish.
16. PW17 Dr. Deepanjali Gupta, GDMO1, Bara Hindu Rao Hospital, Delhi deposed in place of Dr. Ratika, who prepared the MLC No.670/14, but now left the services of the hospital and her present whereabouts are not known. PW17 deposed that she have been working in the Bara Hindu Rao Hospital since 2009 and she had seen Dr. Ratika, writing and signing during ordinary discharge of her duties in the Bara Hindu Rao Hospital. PW17 upon seeing the medical examination dated SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 10 : 02.02.2014 of victim 'K' on the back of MLC No.670/14, deposed that it is in the handwriting of Dr. Ratika and proved the same as Ex. PW17/A. PW17 further deposed that Dr. Ratika has also opined the nature of injuries as grievous on the above said MLC vide her opinion Ex. PW17/B. PW17 further deposed that she has also seen the continuation sheet of the victim, which is also in the handwriting of Dr. Ratika and the same is Ex. PW17/C. She also deposed that as per the continuation sheet, after obtaining the permission from the mother of the victim, the victim was given GA (General Anesthesia) for repairing vaginal tear and thereafter, perennial/vaginal tear was repaired by the Gynae Doctor as well as by the General Surgeon vide report Ex. PW 17/D.
17. PW18 Dr. Jagmohan, CMO, Hindu Rao Hospital, Delhi deposed in place of Dr. Atul, who prepared the MLC No.676/14, but now left the services of the hospital and his present whereabouts are not known. PW18 deposed that he have been working in the Hindu Rao Hospital since 1999 and he had seen Dr. Atul, writing and signing during ordinary discharge of his duties in the said hospital. PW18 upon seeing the medical examination dated 03.02.2014 of Accused Gopi on SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 11 : the back of MLC No.676/14 which is already Ex. PW6/A, deposed that it is in the handwriting of Dr. Atul and proved the same as Ex. PW18/A bearing his signatures at point A. PW18 further deposed that as per the said medical examination, there was multiple small bruises present over the back on right side. PW18 further deposed that Dr.Atul has opined that there was nothing to suggest that the patient was not able to perform sexual intercourse, in his said report.
18. PW19 Dr. Bhawna, SR (Obs. & Gynae), Hindu Rao Hospital, Delhi deposed in place of Dr. Amisha Kurl Sharma, who prepared the MLC No.670/14, but now left the services of the hospital and his present whereabouts are not known. PW19 deposed that she have been working in the Hindu Rao Hospital since 2012 and she had seen Dr. Amisha, writing and signing during ordinary discharge of his duties in the said hospital. She had identified the signatures as well as handwritings of Dr. Amisha on the MLC No.670/14 of the minor victim, which is in the handwriting of Dr. Amisha except the opinion regarding nature of injuries mentioned on the same. PW19 proved the said MLC as Ex. PW19/A and the signatures of Dr. Amisha at point A. SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 12 :
19. PW21 Dr. Neha Talwar, Sr. Medical Officer, Department of Obs. & Gynae, Hindu Rao Hospital, Delhi deposed in place of Dr. Himani, who prepared the discharge slip of the victim 'K', but now left the services of the hospital and her present whereabouts are not known. PW21 identified the signatures and handwriting of Dr. Himani on the discharge slip of the victim 'K' (Ex. PW20/A) on the front/outer page and on back page i.e. Ex. PW17/D and deposed that the said discharge slip is in the handwriting of Dr. Himani and the same bears her signatures at point A. Police Witnesses
20. PW7 HC Naresh Kumar deposed that on 02.02.2014, on receipt of information from Hindu Rao Hospital, Delhi from Duty Constable Sunny, he recorded DD No.26A dated 02.02.2014. He proved the correct copy of the same on the judicial record as Ex. PW7/A.
21. PW14 SI Mahender Singh deposed that on 02.02.2014 while he was posted at PS Bara Hindu Rao on Emergency Duty, on receiving DD No.26A from the Duty Officer, he along with Ct. Harish reached Hindu Rao Hospital where the MLC of the victim 'K' was received. He informed the duty officer and the SHO regarding the victim SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 13 : and made a request to send some lady police officer as the victim was a girl. HC Santosh reached in the hospital and the victim girl was referred to the gyne ward. Thereafter, SI Tirath reached there. Parents of the victim girl were also present in the hospital.
22. PW14 further deposed that the sealed exhibits regarding the victim were received from the hospital and the seizure memo Ex. PW12/B bears his signatures at point C was prepared by the IO. PW14 correctly identified the Accused in the court and further deposed that when he reached the PS, two persons were found present along with the duty officer. Upon inquiry, he came to know that one person was Tau of the victim and the other was Accused Gopi, who had committed wrong act with the victim. Thereafter, SI prepared a rukka and produced before the duty officer for registration of the FIR. Accused Gopi was taken to the hospital for his medical examination and after his medical examination, sealed exhibits were received which were seized vide memo Ex. PW11/A bearing his signatures at point A.
23. PW11 Ct. Harish Kumar deposed that on 02.02.2014 on receipt of a call from ASI Mahender Singh, he along with ASI Mahender Singh reached Hindu Rao Hospital, where they met victim and her SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 14 : parents. The information that the matter pertains to the sexual assault with a minor girl child was given to the SHO. SI Tirath Devi reached the hospital and at that time W/HC Santosh was also there and the victim was got medically examined in the hospital.
24. PW11 further correctly identified the Accused in the court and further deposed that in the PS, the Tau of the victim produced one person before the IO, whose name was later revealed as Gopi. PW11 also deposed regarding the arrest of the Accused vide memo Ex.PW9/A and that of his personal search memo vide memo Ex.PW11/B, both bearing his signatures at point A. PW11 also deposed that the Accused was thereafter taken to the Hindu Rao Hospital and was got medically examined there and after his examination, the pulandas which were given by the doctor to him were handed over to the IO, who seized the same vide memo Ex. PW11/A bearing his signatures at point A.
25. PW10 HC Sukhbir Singh, who deposed regarding registration of the case FIR on receipt of rukka from SI Tirath Devi while he was working as Duty Officer at PS Bara Hindu Rao on 03.02.2014. He proved the copy of the FIR as Ex. PW10/A, his endorsement on the same as Ex. PW10/B and certificate issued under SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 15 : Section 65B of Evidence Act in this regard as Ex. PW10/C.
26. PW13 W/HC Santosh deposed that upon receipt of information from the IO, she reached at Hindu Rao Hospital and got the victim girl child medically examined. Thereafter, the sealed parcels regarding the examination of the victim which were received from the hospital were handed over to the IO, who seized the same vide memo Ex. PW12/B, bearing her signatures at point B.
27. PW8 HC Sunil Kumar (MHCM) deposed that on 03.02.2014 while he was posted as MHCM at PS Bara Hindu Rao Hospital SI Tirath Devi deposited with him three sealed parcels and give sample seals duly sealed with the seal of HRH and he made entry in this regard at Serial No. 1322/14. He further deposed that the personal search articles were also deposited with him by the IO and he also made entry in this regard in Register No.19 and he proved the relevant entry in this regard as Ex. PW8/A.
28. PW8 further deposed that on 04.02.2014, he had sent three sealed parcels and five sample seals duly sealed with the seal of HRH to FSL, Rohini for analysis through Ct. Harish vide RC No.38/21/14 and made entry in this regard in the Register No.21. PW8 also filed the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 16 : photocopy of Register No.21 in the court and proved the photocopy of the same as Ex. PW8/B bearing his signatures as point A and that of Ct. Harish at point B.
29. PW12 IO/Insp. Tirath Devi deposed regarding having conducted the investigation of the case till the investigation of the case was assigned to her. Her investigation included recording of the statement of mother of the victim (Ex. PW1/A) on the basis of which the case was registered, making endorsement on the same (Ex.PW 12/A), seizure of sealed exhibits received from the Gyne Department of Bara Hindu Rao Hospital vide seizure memo Ex. PW12/B and depositing the same with the malkhana in intact condition, conducting interrogation of the Accused at the PS and arresting him vide arrest memo Ex. PW9/A, conducting his personal search vide memo Ex. PW 9/B, recording of his disclosure statement vide Ex. PW12/C, getting the Accused medically examined and thereafter the seizing the sealed exhibits received from the hospital pertaining to the Accused vide seizure memo Ex. PW11/A, recording the statement of father as well as Tau of the victim under Section 161 Cr.PC, producing the mother of the victim and younger sister namely 'A' of the victim before the Learned SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 17 : MM and getting their statements under Section 164 Cr.PC recorded vide application Ex. PW12/D and obtaining the copies thereof after approval of the Learned MM vide Ex. PW12/E, getting the inquiry proceedings conducted at the house of the victim recorded through videography, preparation of site plan Ex. PW1/C, getting the statement of the victim recorded under Section 164 Cr.PC before the Learned MM vide application Ex. PW12/F, sending the sealed exhibits to FSL, Rohini for analysis, seizure of the CD of the video recording of the statement of the victim vide seizure memo Ex.12/G, collecting the birth record of the victim 'K' from her school, getting the victim counselled though Counsellor and preparation of a special report in this regard as Ex. PW 12/I.
30. PW12 correctly identified the victim 'K' and her mother in both the CDs, which were played in the court at the time of her examination. The said CDs were exhibited as Ex. PX and Ex. PX1 respectively. Thereafter, further investigation was handed over to SI Sanjeev.
31. PW20 SI Sanjeev Kumar deposed that on 25.02.2014 further investigation was assigned to him. Upon receipt of the same, he SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 18 : checked the CCTV systems regarding the movement of Accused in the area of Nawab Ganj and Barafkhana, but no movement of Accused Gopi Nisha Mallah was found as the said CCTV footage was checked after two weeks from the date of incidents as the old footages were automatically deleted from the system. He further deposed that thereafter, he seized the discharge slip of the victim 'K', which is Ex. PW20/A from the father of the victim vide seizure memo Ex. PW20/B. Thereafter, after conclusion of the investigation, he prepared the charge sheet and filed the same in the court. He also deposed that on 19.06.2014, he had filed the FSL result (Ex. PW16/A) and Ex. PW 16/B in the court along with his written request/application which is Ex. PW20/C. Other Witnesses:
32. PW15 Sh. Ashwani Kumar Malhotra is the video photographer who deposed regarding the videography carried out by him of the inquiry proceedings of the child victim being conducted by the IO on 18.02.2014. He further deposed that on the very next day, he prepared the DVD and mini cassette of the above said videography in two sets and handed over the same to the IO, who seized the same vide SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 19 : seizure memo Ex. PW12/G, bearing his signatures at point B. This witness also identified the DVDs containing the above videography to be the same which he had prepared at the house of the victim as per the instructions of the IO, when played before him in the court. The DVD containing the said videography is Ex. P15/1. PW15 also correctly identified the contents of mini cassette/memory card as well as the digital cassette playing instrument (video camera) when shown to him in the court in the course of his examination. The said mini cassette is Ex.
PW15/2.
33. PW16 Ms Anita Chhari, Senior Scientific Officer (Biology), FSL, Rohini, Delhi deposed regarding having received the 05 sealed parcels in connection with case FIR No.15/2014 PS Bara Hindu Rao in their office on 04.02.2014, which were assigned to her for biological examination (DNA examination). She examined the exhibits of the above said parcels and prepared her report which has been exhibited as Ex. PW16/A, bearing her signatures at point A and the AnnexureA of the report is Ex. PW16/B bearing her signatures with seal. The further deposed that the remnants of the exhibits were sealed with the seal of AC, FSL, Delhi and the same were sent back to the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 20 : concerned PS. STATEMENT OF ACCUSED UNDER SECTION 313 CrPC
34. In his statement recorded under Section 313 Cr.PC, Accused Gopi Nisha Mallah denied all the incriminating evidence put to him. He pleaded that he is innocent and have been falsely implicated in the present case. He further stated that he had not done anything wrong with the victim and that he was only taking the victim as the victim requested him to drop her at Azad Market as she lost the way of her house.
DEFENCE EVIDENCE
35. Accused examined DW1 Sh. Lal Chand in his defence, who deposed that on 02.02.2013 Accused Gopi came to his house at about 10 AM. Thereafter, they had tea and they started playing caromboard. DW1 further deposed that the Accused Gopi remained at his house till 8:30 PM. Thereafter, Accused Gopi left from his house stating that he is going to the house of his sister.
36. DW1 further deposed that on the next day, sister of Accused Gopi called him and informed him that Gopi has been arrested. DW1 went to PS Bara Hindu Rao and told the police that Accused was with him on the previous day. DW1 also informed the police that they can check the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 21 : CCTV footage of CCTV camera which was installed in his house, but the Police had threatened him that even he would be put behind the bars. ARGUMENTS, ANALYSIS AND FINDINGS
37. I have heard arguments of Ld. Counsel for the Accused as well as Ld. Public Prosecutor and gone through the evidence on record.
38. The evidence on record may be discussed under the following categories for the sake of convenience and brevity: Age of the Victim
39. As aforesaid, the Accused was charged for offences punishable under Section 363 IPC, 376(2) r/w clause (i) and (m) of Section 376 (2) IPC, 326 IPC and Section 6 POCSO Act. In order to prove the age of the victim, Prosecution examined PW5, Principal, Laxmi Devi Girls Sr. Sec. School, Pahari Dheeraj, Delhi, where Prosecutrix 'K' was studying, who produced copy of birth certificate which was submitted at the time of her admission in the said school in Ist Standard, as per which, the date of birth of Prosecutrix is 31.01.2005. PW5 was not cross examined on behalf of Accused and thus, in the light of unrebutted testimony of PW5 and the birth certificate of victim proved by SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 22 : the said witness, it stands established that date of birth of Prosecutrix is 31.01.2005 and on the date of incident i.e. 02.02.2014, she was about 09 years of age.
Testimony of Prosecutrix and her mother i.e. Complainant
40. PW4 Prosecutrix 'K' deposed that on 02.02.2014 while she was playing badminton with her sister and 'T' in the gali in the evening, one uncle came there and told them that he would give them eatables. Her sister 'A' and 'T' ran to the house upstairs and the said uncle caught hold of her by arm. He lifted her in his lap and took her from there in a park. PW4 deposed that after reaching in the park, the said uncle had taken out his shushu (penis) from his pant and thereafter inserted in her shushu (vagina). He had also inserted his finger in her potty (anus). Before that he had put down her pajami and underwear. Thereafter, he brought her to her house. Her parents met her on the way. She deposed that her underwear and pajami became wet. The said uncle was apprehended by her father. She deposed that she was taken to Hindu Rao Hospital by her parents where she was medically examined and she remained in the hospital. She deposed that police aunty met her in the hospital as well as in the house SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 23 : and she told all the facts to police aunty. She deposed that her statement was also recorded by female officer (aunty) and she signed the said statement. The same is Ex. PW4/A. She deposed that said uncle was tall having dark complexion. She correctly identified Accused present in court.
41. PW1 is mother of the Prosecutrix. She deposed she has one son and three daughters. On 02.02.2014 at about 6:30 PM, her all three daughters were playing in the gali near house. AT about 7:30 PM, her daughter 'A' came upstairs, she was perplexed and scared. One being asked, she told her that aone uncle came and asked 'A' whether she would accompany with him to buy something, but 'A' and 'T' came upstairs due to fear whereas the said uncle had taken their sister 'K' forcibly by lifting in his lap. She made a call to her husband immediately and told him the entire incident. Her husband came to the house from his house in search of 'K'. She deposed that she also made a call to her family members i.e. Jaith, Jaithani and sisterinlaw and they also started to search Prosecutrix 'K'.
42. PW1 Mother of the Prosecutrix further deposed that by 9 PM, Prosecutrix 'K' could not be traced out and they were going to PS Bara Hindu Rao to lodge a complaint via Gali Zameer Wali. When they reached SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 24 : near Barat Ghar, they saw that one person coming along with Prosecutrix 'K'. PW1 deposed that she saw her daughter, who rushed to her. She deposed that her daughter was weeping at that time. She deposed that her husband had apprehended the said Gopi, who was coming with her daughter. When her husband asked Gopi, what Prosecutrix 'K' was doing with him, Gopi tried to escape, but her husband apprehended him. She deposed that her husband knew Gopi previously as her husband had taken godown belonging to Jija of Gopoi on rent. Her husband also told her that Gopi is the brotherinlaw of Dharmender.
43. PW1 Mother of the Prosecutrix further deposed that one being asked, her daughter told her that Gopi had inserted his penis in her shushu (vagina) and he had also inserted his finger in her anus. Prosecutrix further told her mother that Gopi had taken her forcibly on the pretext of giving eatable items. She deposed that none else was present at that time when they apprehended the Accused. She saw that the underwear and pajami of her daughter were wet with blood and bleeding was going on from her vagina. She deposed that she checked the anus and found that human excreta was in her underwear. Her husband called his brother Sanjay Kumar at the Barat Ghar by making a call to him and handed over Gopi to SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 25 : Sanjay Kumar and took Prosecutrix to Bara Hindu Rao Hospital. After examination, doctor told them that their daughter had been raped. Doctor also made a call to the police. Police reached the hospital. Police got recorded a complaint from her which is Mark PW1/A. She deposed that on 13.02.2014, she brought her daughter to court and her statement as well as statement of Prosecutrix was recorded under Section 164 CrPC. Her statement under Section 164 CrPC is Mark PW1/B.
44. PW1 Mother of the Prosecutrix further deposed that her daughter i.e. Prosecutrix was discharged from the hospital on 11.02.2014. On 05.02.2014, SI Tirath came to the hospital to make enquiry from her daughter, but at that time, her daughter was in ICU. Thereafter, on 18.02.2014, SI Tirath came to her house to record the statement of her daughter. She had recorded the statement of her daughter in her presence.
45. Mother of the Prosecutrix deposed that on 13.02.2014, she along with her husband and daughter went to Bonta Park along with SI Tirath. She again said that they went to Bonta Park on 14.02.2014. After reaching Bonta Park, she had pointed out towards fences which were broken and at that time, her daughter told that Accused had taken her inside the Bonta Park from the said fences and also pointed out the bushes SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 26 : where Accused had committed 'galat kaam' with her. Police had prepared site plan which is Mark PW1/C. PW1 identified the clothes which were worn by her daughter at the time of incident. PW1 also identified Accused present in court.
46. From the deposition of the Prosecutrix PW4, it is apparent that she identified Accused Gopi as the person, who took her to the park on 02.02.2014 and committed alleged offence with her. It is noteworthy that she was crossexamined, she was questioned as under: "Did the same uncle bring back you to your home when your parents met you on the way or the another uncle was bringing back to you?"
To this she responded that same uncle was bringing her back n her parents met her.
47. Thus, the witness categorically testified before the court that it is Accused Gopi, who had taken her to the park with him and same person was also bringing her back when she met her parents on the way. She denied the suggestion put to her that Accused did not commit alleged offence with her or that he was not the same person who was bringing her back from the place of incident.
SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 27 :
48. The mother of the victim ie. Complainant 'R' PW1 also deposed that she and her husband PW2 saw Accused coming with Prosecutrix at about 9 PM when she reached near Barat Ghar on 02.02.2014. She deposed that Prosecutrix rushed to her while she was weeping and the Accused was apprehended at the spot. The testimony of PW2 father of the victim also corroborates deposition of victim as well as her mother. He also deposed that it is the Accused who was seen coming with her daughter 'K' and that he was subsequently apprehended when he tried to escape from the spot where he met them.
Medical Evidence
49. As per record, PW19 Dr. Bhawna deposed in place of Dr. Amisha Puri, who had examined the victim and prepared her MLC Ex. PW19/A.
50. PW1, Mother of the victim and PW2, father of the victim, had deposed that when they found the victim along with Accused on 02.02.2014, they found that her underwear and pyjami were wet with blood and that she was bleeding from her vagina.
51. PW1 also found on checking from anus that there was human SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 28 : excreta in her underwear. Victim was taken to hospital by her parents and she was examined vide MLC Ex. PW19/A. As per the said MLC, victim was brought to the hospital at 10:30 PM with alleged history of sexual assault. Upon her medical examination, the nature of injuries found upon the person of minor victim 'K' were opined to be grievous and she was found to have a vaginal tear of about 3 cm inside the vaginal cavity, which required surgical intervention under general anesthesia. As per the discharge slip of the victim Ex. PW20/A, she underwent said surgery for repair of the said vaginal tear and in the process was also given two units of blood transfusion and subsequently shifted to ICU for intensive care. The victim was subsequently discharged from hospital after receiving the said treatment on 11.02.2014. The mother of the victim PW1 also deposed that she remained in the hospital along with her daughter till 11.02.2014.
52. As per her medical report, the victim suffered grievous injuries in her private parts requiring surgery and blood transfusion and she remained hospitalized till 11.02.2014 due to the same.
53. The Accused was also got medically examined by PW6 Dr. Kritya Dubey vide MLC Ex. PW6/A. He was found to have multiple bruises present on upper back on right side and middle back on right side, SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 29 : for which he was given primary treatment. Ld. Defence Counsel vehemently argued that as per the MLC of the Accused, he had been given beatings by public persons, who were present at the spot, which resulted bruises on his back. However, PW6 Dr. Kritya Dubey denied the same in her crossexamination and stated that Accused did not disclose to her that he has been beaten by the family members of the Prosecutrix. Scientific Evidence
54. In the course of his arguments, Ld. Addl. PP for the State placed strong reliance on the DNA report Ex. PW16/A. As per the said report, DNA profiling performed on the pyjami of the victim and blood gauze of the Accused established that the source of DNA fingerprinting profile found on the blood gauze of the Accused is similar with the DNA fingerprinting profile of pyjami of the victim. In other words, DNA of Accused was found present on the pyjami of the victim.
55. PW16 Anita Chhari, Senior Scientific Officer (Biology), FSL, Rohini proved the said report Ex. PW16/A. She was questioned by Ld. Defence Counsel as to why parcel No. 4, which contain undergarment of the Accused was not examined by the FSL. PW16 responded that since purpose/sufficient conclusion had already been reached by examination of SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 30 : other exhibits, hence, there was no need to examine PW4. From her testimony, it is thus apparent that since the DNA source from the blood gauze was found matching with the DNA found on pyjami of the victim. Underwear of the Accused was not examined.
56. Ld. Defence Counsel pointed out in the course of arguments that underwear of the victim was also seized during the course of investigation and also sent to FSL, which is apparent from the FSL report, the underwear of the victim being Mark Ex. 1A in the FSL report Ex. PW16/A. It is submitted that although the parents of the Prosecutrix examined as PW1 and PW2 testified that when they found the child, her underwear and pyjami was found wet with blood. However, said underwear was not subjected to DNA examination and the report Ex. PW16/A is totally silent with regard to said underwear and only pyjami of the victim was reported to have DNA of the Accused.
57. It was thus submitted that for reasons best known, the underwear of the victim Mark Ex. 1A was completely ignored by the expert witness i.e. PW16.
58. I have considered the said submissions and gone through the said report Ex. PW16/A. A careful perusal of the said report would reveal SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 31 : that under the heading 'Biology Examination', it has been mentioned at Serial No. 1 itself that blood was detected on Ex. 1a, besides other exhibits, though semen could not be detected on the said Ex. 1a i.e. underwear of the victim.
59. Thus, apparently since no semen was detected on the underwear of the child and semen was detected on Ex. 1b i.e. pyjami of the child. The conclusion regarding presence of DNA of the Accused on the said pyjami was proved on the basis of said pyjami Ex. 1b.
60. Moreover, PW16 Ms Anita Chhari was not crossexamined in this regard and thus, no question can be raised at this stage with regard to veracity of report Ex. PW16/A. I also find myself in disagreement with the arguments of Ld. Defecne Counsel that said report Ex. PW16/A has been manipulated by Investigating Agency, as the said argument is baseless and there is no reason whatsoever, to disbelieve the FSL report.
61. In the course of his arguments, Ld. Defence Counsel also drew my attention to the MLC of the Accused Ex. PW6/A and submitted that as per the said MLC, no blood sample of the Accused was taken at the time of his medical examination and thus there is nothing to suggest on record that the blood sample of the Accused was in fact sent for DNA analysis to FSL, SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 32 : Rohini. However, a careful perusal of deposition of PW6 Dr. Kritya Dubey, who medically examined the Accused, would reveal that she clarified upon stepping into the witness box and after seeing the sealed parcel which was found duly sealed with the seal of 'FSL Delhi' produced by MHC(M) that said cloth parcel bears not only seal of 'HRH', but also bears signatures of PW6 on parcel. She also testified as under: "I had also taken the blood sample on gauze piece of patient and after obtaining the blood sample, I kept the same in a parcel and it was duly sealed with the seal of 'HRH' and also I put my signatures on parcel and handed over the same to Ct. Harish."
62. In her crossexamination, she admitted that she had not mentioned in the MLC that she had taken the blood sample of the Accused on gauze piece and sealed in a parcel. However, she reiterated that all the particulars on the parcel are in her handwriting. She had taken the blood sample on the day when MLC was prepared by her and sealed the blood sample on the same day. She further deposed that inadvertently she could not mention the said fact of taking blood sample and sealing the same, in the MLC.
SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 33 :
63. In view of the said explanation furnished by PW6 Dr. Kritya Dubey, I am of the view that there is no room for doubt that blood sample of the Accused was taken at the time of his medical examination by PW6 and duly sealed with the seal of 'HRH' and she also put her signatures on the parcel and handed over the same to Ct. Harish and subsequently sent for DNA analysis by the Investigating Agency. Thus, I find no merit in the arguments of Defence that FSL report has been manipulated or that blood sample of the Accused was prepared later on and planted. CCTV Footage
64. Learned Defence Counsel submitted that despite the directions of the court, no steps were taken by the Investigating Agency to obtain the CCTV footage from the CCTV cameras installed in the area. It is stated that the Investigating Agency has withheld the best evidence that was available i.e. CCTV footage with a view to shield the guilt of the actual culprit and to falsely implicate the Accused in this case.
65. On the other hand, Ld. Addl. PP for the Stat argued that Accused deliberately moved the application for retrieval of the CCTV footage only on 18.02.2014 before this court i.e. after lapse of sixteen days from the date of offence i.e. 02.02.2014. It is submitted that this was done SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 34 : with malafide intention to put blame on Investigating Agency knowing the fact that DVR storage capacity of most of the CCTVs is not more than fifteen days. It is submitted that this plea has been taken by Accused just to mislead and misguide the court and with ulterior motive during trial of this case.
66. Be that as it may, it is an admitted fact that no CCTV footage was collected by the Investigating Agency from the cameras installed in the area near the place from where the victim was allegedly kidnapped by the Accused. PW20 SI Sanjeev Kumar deposed that he was assigned the case on 25.02.2014 and when he checked the CCTV system, no movement of the Accused was found as the said CCTV footage was checked after two weeks from the date of incidents as the old footages was automatically deleted from the system by then. Though it cannot be said whether the said omission in collecting CCTV footage on part of Investigating Agency is deliberate or not, however, at the same time, it cannot be ignored that by the time court ordered collection of CCTV footage vide order dated 01.03.2014, the same had already been deleted and could not be procured. SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 35 : Other Arguments of Defence
67. Learned Defence Counsel pointed out that as per the deposition of mother of the victim PW1, the victim could not be traced by 9 PM, whereas, in the MLC of the victim Ex.PW17/C, it has been mentioned by the examining doctor that according to the mother of the victim, the child was found at 7:45 PM in Navab Ganj.
68. It is further submitted that as per PW1, the victim was found when her parents were going to PS Bara Hindu Rao via Gali Zameer Wali and when they reached near Barat Ghar, they saw Accused coming with the victim.
69. I have considered the said submissions. However, the fact that it is mentioned in the MLC Ex. PW17/C that victim was found at 7:45 PM in Nawab Ganj cannot be said to be fatal to the case of the Prosecution in as much as, the mother of the victim PW1 categorically deposed that she found the victim when she along with her husband reached near Barat Ghar at about 9 PM. It is noteworthy that contents of the MLC were not put to PW1 in her crossexamination and she was not confronted with the same and in these circumstances, the benefit of the same cannot be given to the Accused. SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 36 :
70. Learned Defence Counsel further contended that admittedly the parents of the victim did not make any call to the police from 6:30 PM and when they came to know that the victim was missing till 9 PM, she was found.
71. The mere fact that no police call was made till 9 PM by the parents of the victim can also not said to be something out of the ordinary in the given facts and circumstances of the case. As deposed by parents of the victim, they were searching for 'K' till 9 PM and when they did not find her, they were proceeding towards the police station when they found the Accused coming along with victim . In these circumstances the fact that they did not make any call to the police during this period while they were searching for their minor child has been sufficiently explained by the parents of the victim.
72. My attention is also drawn to the statement of the victim recorded under Section 164 Cr.PC Ex.PW4/A, wherein she stated before the Learned MM that after committing the alleged offence, the Accused left her and that she stated before the Learned MM that "Thori der baad unhone chor diya".
SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 37 :
73. It is argued that apparently, the offender was some other person who left the victim after committing the offence in question with her and the Accused in fact found the child and was bringing her back with him when he was caught and falsely implicated in this case.
74. Learned Defence Counsel also relied upon the deposition of DW1 in this regard, who deposed before the court that on the day of the alleged incident i.e. 02.02.2013, Accused Gopi came to his house at about 10 AM and remained there till 8:30 PM.
75. In this regard, it is pertinent to note that not only the minor victim, but her parents consistently deposed before the court that it is Accused Gopi, who was seen along with the victim when she was found coming with him as per parents were going to the PS to report that the girl is missing. The medical evidence on record also establishes the extent of injuries suffered by the victim on account of sexual assault committed upon her. The victim testified that she was raped by the Accused and reiterated that he is the one, who had taken her along with him to the park where he committed said offence and he is also the same person with whom she was returning when her parents met her on the way. The testimony of the child remained unimpeached despite her crossexamination. SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 38 :
76. The same also finds corroboration with the report of FSL, as per which the DNA of the Accused was found matching with the DNA found on the pyjami of the victim. The said overwhelming evidence on record establishes beyond reasonable doubt that it is Accused Gopi, who committed the aforesaid offence upon the minor victim and merely because in her statement under Section 164 CrPC Ex. PW4/A, victim stated before Ld. MM that "Thori der baad unhone chor diya" cannot be said to imply that Accused let go off her or that Accused met her thereafter.
77. Though DW1 deposed that Accused was with him on 02.02.2014 i.e. date of incident since morning and left his house only at 8:30 PM. However, Accused himself in his statement under Section 313 CrPC did not even whisper that on the date of the alleged incident, he had visited the house of DW1 or that he had left his house at about 8:30 PM. Moreover, as per DW1, a CCTV camera was installed in his house, whose footage was not produced by him to show the presence of the Accused at his house since morning on the day of the alleged incident.
78. It may also be relevant to mention at this juncture that at the time of crossexamination of PW2 father of the victim, a totally different line of Defence was taken. It was suggested to PW2 that he is falsely SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 39 : implicated in this case due to some previous enmity with him. Accused did not take the plea of previous enmity in his statement under Section 313 CrPC, nor did he produce any witness in support of his plea.
79. Pertinently, PW2 was also given suggestion in the course of crossexamination that the mobile phone of Accused was seized by the police and his photographs was shown repeatedly to the victim so that she can identify him in court during trial. However, it is not the case of the Accused that he lodged any complaint against any police official in this regard nor any such suggestion was given to the Investigating Officers during their crossexamination. It is thus apparent that Defence sought to be raised by the Accused was not only different at different stages during trial, but also that none of the pleas raised by him in his Defence inspire any confidence.
80. On the basis of the evidence on record including the testimonies of the Prosecutrix and her parents, which remained unimpeached despite they being crossexamined at length, coupled with the DNA analysis report Ex. PW16/A, which clearly establishes that the semen of the Accused was found on the pyjami of the child victim, I am convinced that the Prosecution has been able to bring home the guilt of Accused beyond the SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 40 : realm of reasonable doubt.
81. It has been proved on record that Accused Gopi Nisha Mallah kidnapped the minor victim 'K' while she was playing with her sisters and took her along with him and committed rape upon her, as defined under Section 376 (2) (i) and 376 (2) (m) IPC. From the evidence on record, it stands proved on record that at the time of alleged offence, the victim was 09 years of age and was thus incapable of giving consent. The nature of injuries sustained by the minor victim 'K' due to commission of the said offence by the Accused have been opined to be 'grievous' as per her MLC Ex. 17/B thus, establishing that the Accused committed the offences punishable under Section 363 IPC and 376 (2) (m) IPC.
82. From the deposition of victim 'K', it stands proved that Accused committed aggravated penetrative sexual assault by inserting his finger in her anus and also committed penetrative vaginal intercourse with her with his penis and accordingly, the Accused is also liable to be punished for offence punishable under Section 6 POCSO Act.
83. In so far as the charge for offence under Section 326 IPC is concerned, I find that it is not the case of the Prosecution that grievous injury was caused to victim 'K' by means of any instrument or weapon or SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 41 : any corrosive and explosive substance and accordingly, there is no ground whatsoever for convicting the Accused for offence punishable under Section 326 IPC. However, in view of the fact that it has been proved that Accused caused 'grievous' injury to the victim 'K', the Accused is also convicted for offence punishable under Section 325 IPC. Conclusion
84. In the light of the above discussion and on the basis of evidence on record, it stands proved beyond reasonable doubt that Accused committed offences punishable under Section 325 IPC, 363 IPC, 376 (2) (i) and (m) IPC and Section 6 POCSO Act.
85. Accused Gopi Nisha Mallah S/o Sh. Jai Ram Mallah is accordingly convicted for the offences punishable under Section 325 IPC, 363 IPC, 376 (2) (i) and (m) IPC and Section 6 POCSO Act, while he is acquitted for offence punishable under Section 326 IPC.
86. Let Accused be heard on the point of sentence.
Announced in the open Court on 24.04.2018 (Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 42 : IN THE COURT OF MS KAVERI BAWEJA ADDITIONAL SESSION JUDGE05 (CENTRAL) TIS HAZARI, DELHI Sessions Case No.: 28195/2016 State versus Gopi Nisha Mallah S/o Sh. Jairam Mallah Current Address: H. No. 10324, Tokriwalan, Azad Market, Delhi Permanent Address: A23, Gur Mandi, Rajpura, Delhi and A3, Gur Mandi Rajpura, Delhi Case arising out of:
FIR No. : 15/2014
Police Station : Bara Hindu Rao Under Section : 363/376(2)(m)/377 IPC & Sections 3/4/6 POCSO Act Judgment pronounced on : 24.04.2018 ORDER ON SENTENCE
1. The Convict Gopi Nisha Mallah S/o Sh. Jai Ram Mallah has been convicted for the offences punishable under Section 325 IPC, 363 IPC, 376 (2) (i) and (m) IPC and Section 6 POCSO Act vide judgment dated 24.04.2018.
SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 43 :
2. I have heard the submissions at length made by learned counsel for the Convict as well as learned Addl. PP representing the State, on the point of sentence.
3. It is contended on behalf of Convict that he has clean antecedents and is about 30 years of age. It is further submitted that he has already remained in custody for more than 04 years during the investigation, inquiry and trial of this case.
4. On the other hand, learned Public Prosecutor strongly opposed the submissions made by the counsel for the Convict. It was submitted by the Prosecution that the convict has been found to have committed the aforesaid offences with a minor girl and with a view to curtail the increasing trend of offences against the minor victims, it is necessary that he be awarded maximum prescribed punishment, so that it acts as a deterrent for society at large.
5. I have also made inquiries from the Convict regarding his status and economic condition. It is stated that he was working as unskilled working doing the work of 'Halwai' and earning Rs. 500/ per day. His parents have expired and recently his brother has expired.
6. From the evidence on record, it has been duly proved that Accused Gopi Nisha Mallah not only brutally raped the minor girl 'K', but also caused grievous injury to her in the process. The girl suffered a 3 cm long tear in her vaginal cavity requiring surgery and hospitalization in the Intensive Care Unit.
7. Apart from the physical injury, the victim child merely 09 years of age, must have also undergone extreme trauma, the impact whereof, we SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 44 : may not even be able to imagine, leave alone assess.
8. The rising trend of sexual violence with helpless children demands that no leniency be shown towards such offenders, who show no signs of mercy while violating the minor victim.
9. Thus, having regard to the gravity of the offences committed by the above named convict and with a view to ensure that adequeate sentence commensurate with the offences proved to have been committed by the Accused is awarded to him, I am of the opinion that the above named convict is liable to be sentenced as under:
a) For the offence punishable under Section 325 IPC, the above named Convict is directed to undergo Rigorous Imprisonment for a period of 07 years in addition to payment of fine of Rs. 3000/, in default of payment of fine, he shall undergo Simple Imprisonment for 02 years.
b) For the offence punishable under Section 363 IPC, the above named Convict is directed to undergo Rigorous Imprisonment for a period of 07 years in addition to payment of fine of Rs.2000/, in default of payment of fine, he shall undergo Simple Imprisonment for 02 years.
c) For the offence punishable under Section 376 (2) (i) & (m) IPC, the above named Convict is directed to undergo Rigorous Imprisonment for life in addition to payment of fine of Rs.2500/, in default of payment of fine, he shall undergo Simple Imprisonment for 03 years.
d) For the offence punishable under Section 6 POCSO Act, the above named Convict is directed to undergo Rigorous Imprisonment for life in addition to payment of fine of Rs.2500/, in default of payment of fine, he shall undergo Simple Imprisonment for 03 years SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 45 :
10. All the above sentences shall run concurrently. The convict shall be entitled to benefit of Section 428 CrPC, if any. In view of pronouncement of the Hon'ble High Court in case of Gaya Prasad Pal @ Mukesh vs. State in Crl. Appeal No.538/2016 decided on 09.12.2016, it is directed that the fine if paid by the Convict be given to the victim as compensation.
11. As per record, the victim was granted interim compensation to the tune of Rs. 1 lakh by DSLSA on 16.04.2018. In addition thereto, I recommend payment of adequate compensation to the victim in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DSLSA, Central District for necessary action, under intimation to this Court.
12. Copy of the judgment and order on sentence be supplied to the Convict free of cost.
Announced in the open Court on 28.04.2018 (Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 46 : FIR No. 15/2014 PS: Bara Hindu Rao State Vs Gopi Nisha Mallah SC No. 28195/2016 24.04.2018 Present: Sh. M. A. KhanLd. Addl. PP for the State.
Ms Sarika Sharma, Adv from DCW.
Accused produced in J/c.
Sh. Pawan SharmaLd. Counsel for Accused.
Vide separate judgment announced in open court today, Accused Gopi Nisha Mallah S/o Sh. Jai Ram Mallah is convicted for the offences punishable under Section 325 IPC, 363 IPC, 376 (2) (i) and (m) IPC and Section 6 POCSO Act, while he is acquitted for offence punishable under Section 326 IPC.
Adjourned to 27.04.2018 for arguments on sentence.
(Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi 24.04.2018 SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 47 : FIR No. 15/2014 PS: Bara Hindu Rao State Vs Gopi Nisha Mallah SC No. 28195/2016 27.04.2018 Present: Sh. M. A. KhanLd. Addl. PP for the State.
Ms Sarika Sharma, Adv from DCW.
Convict produced in J/c.
Sh. Yatinder KumarLd. Legal Aid Counsel for Complainant. Ld. Counsel for Convict has not appeared till 4 PM. In the interest of justice, case is adjourned to 28.04.2018 for arguments on sentence.
(Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi 27.04.2018 SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 48 : FIR No. 15/2014 PS: Bara Hindu Rao State Vs Gopi Nisha Mallah SC No. 28195/2016 28.04.2018 Present: Sh. M. A. KhanLd. Addl. PP for the State.
Ms Sarika Sharma, Adv from DCW.
Convict produced in J/c.
Sh. Pawan SharmaLd. Counsel for Accused.
Vide separate order on sentence, announced in open court today, Convict Gopi Nisha Mallah S/o Sh. Jairam Mallah is sentenced as under:
a) For the offence punishable under Section 325 IPC, the above named Convict is directed to undergo Rigorous Imprisonment for a period of 07 years in addition to payment of fine of Rs. 3000/, in default of payment of fine, he shall undergo Simple Imprisonment for 02 years.
b) For the offence punishable under Section 363 IPC, the above named Convict is directed to undergo Rigorous Imprisonment for a period of 07 years in addition to payment of fine of Rs.2000/, in default of payment of fine, he shall undergo Simple Imprisonment for 02 years.
c) For the offence punishable under Section 376 (2) (i) & (m) IPC, the above named Convict is directed to undergo Rigorous Imprisonment for life in addition to payment of fine of Rs.2500/, in default of payment of fine, he shall undergo Simple Imprisonment for 03 years.
d) For the offence punishable under Section 6 POCSO Act, the above named Convict is directed to undergo Rigorous Imprisonment for life in addition to payment of fine of Rs.2500/, in default of payment of fine, he SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao : 49 : shall undergo Simple Imprisonment for 03 years All the above sentences shall run concurrently. The convict shall be entitled to benefit of Section 428 CrPC, if any. In view of pronouncement of the Hon'ble High Court in case of Gaya Prasad Pal @ Mukesh vs. State in Crl. Appeal No.538/2016 decided on 09.12.2016, it is directed that the fine if paid by the Convict be given to the victim as compensation.
As per record, the victim was granted interim compensation to the tune of Rs. 1 lakh by DSLSA on 16.04.2018. In addition thereto, I recommend payment of adequate compensation to the victim in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DSLSA, Central District for necessary action, under intimation to this Court.
Copy of the judgment and order on sentence be supplied to the Convict free of cost.
File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi 28.04.2018 SC No. 28195/2016 State Vs Gopi Nisha Mallah FIR No. 15/2014 PS Bara Hindu Rao