Delhi District Court
Sc No. 58958/16 State vs . Vijay Kumar on 19 September, 2017
SC No. 58958/16 State Vs. Vijay Kumar
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 58958/16)
Unique Identification No. 02404R0171432016
FIR No. 334/16
Police Station Prashant Vihar
Under Section 354/376 IPC
& 4/10 POCSO Act
State V/s Vijay Kumar
S/o Late Sh. Roshan Lal
R/o Bhopal Ka Makan,
Village Rajapur, Sector9,
Rohini, Delhi.
......Accused
Date of institution 11.04.2016
Date of arguments 19.09.2017
Judgment Pronounced on 19.09.2017
Decision Convicted
Judgment : FIR No. 334/16 page 1 of 18
SC No. 58958/16 State Vs. Vijay Kumar
J U D G M E N T
1.The accused Vijay Kumar is facing trial in the present case on allegations of having committed penetrative sexual assault upon the prosecutrix S (identity withheld), aged about 4 years.
2. The brief facts as borne out from the record are that on 20.03.2016, at about 2.30 AM (Night), complainant Mrs. NB came to PS Prashant Vihar alongwith her daughter SR, aged about five years and made a complaint to the effect that about 1520 days earlier, when she had returned back from her work of a part time domestic maid, her daughter S had told her that she was having pain in her private part (urinary part). On a detailed inquiry, her daughter S told her that the tenant living on the ground floor, whose name she later came to know as Vijay Kumar Malhotra S/o Roshan Lal, had touched on her urinary part. That day, the complainant took the matter lightly and did not report the matter. However on 19.03.2016, at about 67 PM, her daughter S, came to her and again complained of having pain in her urinary part. On inquiry, the victim again told the complainant that the same person living on the ground floor, had again touched her on her urinary part, with his fingers. She also checked the victim's urinary part and found the same 'Red'. The complainant waited for the return of her husband, who was a rickshaw puller and on his return, she narrated the entire incident to him, and after discussions with her husband, the complainant alongwith her husband and victim child went to the Police Station in the night itself and lodged a complaint against the accused. The victim / Baby S was taken to BSA hospital, where her MLC was prepared and thereafter the FIR Judgment : FIR No. 334/16 page 2 of 18 SC No. 58958/16 State Vs. Vijay Kumar was registered. The investigation was further initiated and at the pointing out and instance of the complainant and her husband, accused Vijay Kumar was arrested vide the appropriate Arrest Memo and his Personal Search Memo was also prepared. Accused also made his disclosure statement and also pointed out the place of occurrence and appropriate memos in this respect was also prepared. Accused was got medically examined and was produced in the court and sent to JC. On 22.03.2016, the victim was produced before the Ld. MM and on request of the IO, the statement of the victim u/s 164 CrPC was recorded by the Ld. MM. In her statement u/s 164 CrPC, the victim testified that one uncle had called her at the shop where the uncle showed her a chocolate and called her inside the room and he opened her underwear and inserted his finger and thereafter sent the child back, and that the child thereafter disclosed the entire incident to her mother. The victim was got counselled from the CWC and her statement was also recorded by the IO. The age proof of the victim was obtained from her school and after completion of investigation the charge sheet was filed by the IO against the accused for the offences u/s 354/376 IPC & 4/10 POCSO Act.
3. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s 6 POCSO and in the alternative u/s 376 (2)(i) IPC on 02.05.2016 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, vide order dated 19.09.2017, the charge was amended because as per the allegations, the offence which was committed, was covered under two heads Judgment : FIR No. 334/16 page 3 of 18 SC No. 58958/16 State Vs. Vijay Kumar simultaneously and not alternatively, and the accused was charged for the offence u/s 6 POCSO and u/s 376 (2)(i) IPC, to which he pleaded not guilty. Ld. Addl. P.P. for the State stated that after the amendment of the charge, no other witness is to be examined. Similarly, Ld. Amicus Curiae for the accused stated that after the amendment of the charge, no witness is required to be cross examined afresh, nor any modification in the statement u/s 313 CrPC of accused is required, nor any defence witness is to be examined.
4. To substantiate its case, the prosecution examined 9 PWs in all, out of which, PW 4, PW 5, PW 6, PW 7 and PW 8 are formal witness, PW9 is the IO of the case and PW 1, PW 2 and PW 3 are the material witnesses, being the victim and her parents.
FORMAL WITNESSES
5. PW 4 Ms. Dazie Kaul, Principal Happy Model School, Razapur, Sector 9, Rohini, Delhi produced the admission / withdrawal register maintained in the school, as per which a girl child namely S (identity withheld) was admitted in nursery class on 10.04.2014 and her date of birth is mentioned as 11.07.2011. She produced the admission form filled up by the parents of the child as Ex. PW4/A, copy of the birth certificate of student S furnished by the parents of the student as Ex. PW4/B and the letter issued by the witness in respect of the date of birth of student is Ex. PW4/C.
6. PW 5 Bhopal Singh deposed that he is the owner of the property Judgment : FIR No. 334/16 page 4 of 18 SC No. 58958/16 State Vs. Vijay Kumar bearing no. 388, Khasra No. 100/27, Village Razapur, Sector 9, Rohini, Delhi. He identified the accused Vijay Kumar and deposed that the accused was residing as a tenant in his premises for the last about 45 months, prior to the happening of the incident in question, sharing his room with one Balram.
7. In his crossexamination, he testified that he knows the accused for the past 2530 years and that accused is a ladies tailor by profession. He also knows one Ishar Kabadi, who runs his Kabadi shop adjacent to his aforementioned house and that on the issue of theft of a mobile phone of Ishar, a quarrel had taken place between Ishar and Balram and that the victim is a relative of Ishar Kabadi. He admitted the suggestion that alongwith the accused, Balram was also apprehended by the police but later on Balram was released by the police.
8. PW 6 Dr. Silky Kothiwal, SR (Gynae) BSA hospital deposed that on 20.03.2016, she examined the patient / victim S, aged about 5 years, and prepared her MLC bearing no. 142, which is Ex. PW6/A. She further deposed that no external injury was found on the body of the patient, the Hymen was intact but there was redness over the Vulva Region and that the parents of the victim refused for the internal medical examination of the victim, and the endorsement in this regard was made by her at point B on the MLC.
9. In her crossexamination, she deposed that apart from the redness over the Vulva Region of the victim, there was no sign of sexual assault. She admitted that redness over the Vulva Region could also be Judgment : FIR No. 334/16 page 5 of 18 SC No. 58958/16 State Vs. Vijay Kumar due to some other factors, other than the sexual assault.
10. PW 7 Ms. Richa Manchanda, MM Rohini Courts, Delhi deposed that on 22.03.2016, on an application being assigned to her for recording the statement u/s 164 CrPC of the victim S, she recorded the statement of the victim S u/s 164 CrPC, which is Ex. PW 7/A. She appended the certificate regarding the correctness of the statement and on an application Ex. PW7/B being moved by the IO, she ordered for the supply of the copy of the statement to the IO.
11. PW 8 ASI Phool Singh deposed that on 20.03.2016, while posted as Duty Officer at PS Prashant Vihar, on the basis of the rukka, given by SI RIta, at about 2.30 AM, he registered the instant FIR, which is Ex. PW 8/A and also made the endorsement on the rukka Ex. PW8/B. INVESTIGATIVE WITNESS
12. PW 9 SI Rita, the IO of the case, deposed that on 20.03.2016, the complainant alongwith her husband and daughter / victim S came to the PS Prashant Vihar and made the complaint Ex. PW3/A. She got the victim medically examined at BSA Hospital and thereafter on the basis of the complaint, she prepared the Tehrir Ex. PW 9/A and got the case registered. On the same day, at the behest of the father of the victim, she arrested the accused from his house vide arrest memo Ex. PW2/A and also conducted his personal search vide personal search memo Ex. PW 9/B. The accused also made his disclosure statement Ex. PW9/C, whereafter accused was produced in the court and sent to JC.
Judgment : FIR No. 334/16 page 6 of 18
SC No. 58958/16 State Vs. Vijay Kumar
13. She further deposed that on 22.03.2016, she produced the victim before the Ld. MM, and vide application Ex. PW 9/D, made a request for recording of the statement of victim u/s 164 CrPC, and after the statement of the victim was recorded, she obtained a copy thereof, vide her application Ex. PW 7/B. The next day, the victim was produced before CWC and after completion of investigation, she filed the charge sheet.
14. In her crossexamination, she stated that complainant alongwith her husband and victim came to PS at about 12 midnight and remained there up to 2.30 AM. She did not record the statement of any public person / neighbour, but admitted that the spot of occurrence i.e. the house in question is situated in a thickly populated area. She denied any knowledge or any reference being made about any Ishar Kabadi or the theft of his mobile phone by one Balram, during the course of investigation. She was ignorant whether Ishar is the relative of father of victim, but admitted that she apprehended Balram who was residing with the accused as well as accused but later let go Balram. She denied that the accused has been falsely implicated in this case.
MATERIAL WITNESSES
15. The victim S, aged about 5 years, entered the witness box as PW1 and after conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim / child to give rational answers, on being satisfied, the statement of the victim was Judgment : FIR No. 334/16 page 7 of 18 SC No. 58958/16 State Vs. Vijay Kumar recorded, which is as under :
"I know accused (present in the Court, correctly identified through wooden partition) as he lives in the same building where is my house. One day accused showed me a toffee while he was standing on the threshold of his house, accused called me. When I went near to him, accused took me inside his room. Accused removed my underwear and inserted his finger in my urinary part (Victim pointed at her urinary part). I felt pain when he was doing so. After some time, accused let me go. Later on I narrated the incident to my mother and also showed her the accused. Accused committed such act with me thrice on different occasions.
Police came to our house and they took me to Doctor for my medical examination. My statement was also recorded before Ld. MM."
16. In her crossexamination, PW 1 deposed as under :
"My mother is working as a maid in Society and my father is a driver. In the morning me and my father keeps on sleeping at that time my mother goes for her work. My father used to go for his work after giving me breakfast. My father used to drop me to my School. I used to come back from School on my own. When I used to return from School, there used to be nobody in our house. Till my mother return from her work, nobody used to be with me during this time.
Judgment : FIR No. 334/16 page 8 of 18
SC No. 58958/16 State Vs. Vijay Kumar
My mausi and chotu (cousin brother) used to reside nearby our house. I know one Izhar Kabadi. I do not know if Izhar Kabadi had quarrel with someone over the issue of theft of mobile. Nobody has taught me as to what to depose in Court. My mother didn't tell me what to speak in Court and in fact accused committed wrong act with me."
17. Sh. M, father of the victim entered the witness box as PW 2 and deposed that he has only one daughter, aged about 5 years, and on the date of incident, when he came back from his work, his wife informed him that the accused (correctly identified), who was residing on the ground floor, had committed sexual assault upon their daughter, and he confirmed from her daughter about the said act of the accused, and the victim verified the incident and also pointed out towards the accused. He went to the PS alongwith his wife and daughter and thereafter police came at the spot and arrested the accused vide his arrest memo Ex. PW 2/A.
18. In his crossexamination by Ld. Counsel for the accused, PW2 deposed that his wife informed him about the incident at about 5 PM. He further stated that he knows Ishar Kabari but denied that he has falsely implicated the accused to teach him a lesson as he had a quarrel with Ishar Kabari.
19. Ms. S, mother of the victim entered the witness box as PW 3 and corroborated the version of her daughter that in the summer of 2016, her Judgment : FIR No. 334/16 page 9 of 18 SC No. 58958/16 State Vs. Vijay Kumar daughter had complained of having pain on her urinary part and on being inquired, she (victim) disclosed her that accused Vijay (correctly identified through wooden partition), who was residing on the ground floor, had inserted his finger in her urinary part. She further deposed that the victim had showed her the accused at that time, but she did not believe her daughter at that time as the accused was of such elderly age and must have not committed any such act. However, after 20 days of the first incident, at about 67 PM, her daughter again came to her and complained that the accused had touched on her urinary part. She waited for her husband and after he came, she disclosed about the incident to him and thereafter they reported the matter to the police. She proved her complaint as Ex. PW3/A. She deposed that her daughter was medically examined but stated that due to her tender age, she refused for her internal medical examination.
20. In her crossexamination, she admitted that she resides in a thickly populated area. She also knows that Ishar Kabari is running a shop near their house, but does not know if Balram has stolen the mobile phone of Ishar Kabari, and it was her husband who got apprehended Balram in the matter of stealing of mobile phone. She denied the false implication of accused in this case.
21. After close of PE, the statement of the accused was recorded u/s 313 CrPC, wherein he denied the prosecution case in its entirety, and claimed his innocence. However, he preferred not to lead any defence evidence.
Judgment : FIR No. 334/16 page 10 of 18
SC No. 58958/16 State Vs. Vijay Kumar
22. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Ms. Sadhna Bhatia, Amicus Curiae, for the accused. Ld. Amicus Curiae for the accused has contended that the MLC of the victim shows no fresh injury on the person of the victim and her Hymen is intact, which is clearly indicative of no sexual assault having taken place upon the victim. It is contended that there is a delay in lodging the FIR and that the accused has been falsely implicated in the instant matter, at the instance of the father of the victim, and that the testimony of the victim as well as her parents is unreliable.
23. Per contra, the Ld. Addl. PP for State has contended that the victim is an innocent child of 5 years of age, who despite her tender age, has competently and vividly deposed about the incident as it took place with her. The parents of the victim have corroborated the version of the victim and have categorically identified the accused, to be the person who committed the offence, qua their daughter and that the prosecution case is proved to the hilt, by all the supporting and the corroboratory witnesses.
24. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
25. Age of the Victim: As per the prosecution, at the time of incident in the month of March, 2015, the victim was about 5 years of age. The age of the victim has not been disputed by the accused. Nevetheless, PW4 Ms. Daize Kaul, Principal, Happy Model School, Judgment : FIR No. 334/16 page 11 of 18 SC No. 58958/16 State Vs. Vijay Kumar Razapur, Sector9, Rohini Delhi produced the record maintained in the school of the victim, as per which her date of birth was mentioned as 11.07.2011 and the copy of the admission form filled up by the parents of the child has been proved as Ex. PW4/A, and the copy of the birth certificate as PW4/B. As such, on the date of alleged incident i.e. 19.03.2016, the victim was over about 4 ½ years of age, and hence she is a "Child" within the meaning as contemplated U/s 2 (d) POCSO Act.
26. Testimony of the victim and her parents : The testimony of the victim S, a child of four years of age, was a cogent and a consistent one, standing the test of a grilling crossexamination on behalf of the accused. She narrated the incident of a penetrative sexual assault upon her by the accused, in an emphatic manner, delineating the exact act which was done by the accused i.e. of having removed her underwear and insertion of his finger in her urinary part. She also pointed out towards the said part of her body during the course of her examination, which has been recorded / observed by the Ld. Predecessor of this court. She has also emphasized that she felt pain while the accused was doing this act and that the accused has done this act with her earlier also, on different dates.
27. In her crossexamination, came about the circumstances of her family, with her mother working as a maid and her father being a driver, due to which they were absent from the house during the day, after she returned back from her school, leaving the child alone for several hours. She has denied that she has been tutored by her mother about what to depose in the court, and was rather consistent that the accused had Judgment : FIR No. 334/16 page 12 of 18 SC No. 58958/16 State Vs. Vijay Kumar committed the wrong act with her. She admitted that she knew one Ishar Kabari but showed her ignorance about the quarrel of Ishar Kabari with anyone, on the issue of stolen mobile phone.
28. The testimony of the victim was duly corroborated by her mother Ms. S, who was examined as PW 3, on all material particulars. She also narrated the entire sequence of incidents, all in details, having been informed to her by her daughter. She further went on to explain in detail the previous incident also, about 20 days prior to the incident in question, which was of similar nature, informed to her by the victim that the accused, whom the victim had pointed out and shown to her mother, had inserted his finger in her private part but at that point of time, the mother of the victim had let the matter rest only out of bewilderment as to how an aged person like the accused, could commit such an act with a small child. Her explanation comes across to be a truthful one and a plausible one, in the circumstances, as it does so happen when such a nasty incident is narrated by the child, the mother is at a loss for the right course of action to be adopted and quite a few times, it so happens that the mother or even both parents, at times, decide to over look the matter. The intent of the culprit being malafide gets substantiated only on a repeat occurrence being reported to them by the child, as happened in the case in hand.
The Ld. Amicus Curiae for the accused had contended that there is a delay in lodging of FIR to the tune of 20 days, during the course of her arguments. However, this contention does not hold any good as the complaint which was made on the basis of which, the instant FIR has been registered was a prompt one, having been made in the night itself Judgment : FIR No. 334/16 page 13 of 18 SC No. 58958/16 State Vs. Vijay Kumar after coming to know of the incident committed during the day time on 19.03.2016 and the same having been narrated to her mother, by the victim at 67 PM of the same day. Further more, the previous incident of similar nature i.e. the sexual assault upon the victim by the accused committed approximately 1520 days back, and why the same was not reported to the police has been explained by PW 3 logically and her explanation is found to be plausible and truthful.
29. Both the victim as well as her mother have identified the accused to be the culprit in the instant case. The incident was narrated by PW 3 to her husband PW 2, who also corroborated the version of both PW 1 and PW 2 in entirety. It is to be noted that in the crossexamination of both PW 2 and PW 3 the thrust of the counsel for the accused was upon the false implication of the accused because he was the friend / room mate of one Balram, who had some differences with one Ishar Kabari and this Ishar Kabari being a relative of the victim's family, had brought about the false implication of the accused in the present case. However, there is a categorical denial by both PW 1 and her mother PW 3 about such a false implication and their ignorance about anyone and specifically Balram having stolen the mobile phone of Ishar Kabari. PW 2 has categorically denied Ishar Kabari being his relative, which was not refuted by the accused. This being the scenario, and such a remote and implausible defence having been put up by the accused, the defence fails to inspire any confidence. It is noteworthy, that both PW 1 and PW 3 in their testimony have categorically stated that the victim disclosed the incidents to her mother in detail, after feeling pain in her private parts, not once but it was when the incident was repeated that the victim's mother took note Judgment : FIR No. 334/16 page 14 of 18 SC No. 58958/16 State Vs. Vijay Kumar of it and called the police. The police got the victim medically examined at BSA hospital, where the MLC of the child Ex. PW6/A was prepared and the local examination of the Perineal Area of the victim brought about the observation of the doctor "on separating Majora - Vulva Area was found Red". PW 6 Dr. Silky Kothiwal, SR (Gynea) from BSA Hospital categorically deposed that her examination of the child had brought about the said observations. The medical evidence comprising of the presence of Redness over the Vulva Region of the victim, she complaining of pain in her Perineal area, are all vital pieces of corroborative evidence to the emphatic ocular testimony of the victim and her mother, which are convincing and reliable. The defence of the accused not being probable or plausible, further shatters the case of the accused that he was falsely implicated in this case.
30. Medical and forensic Evidence : As already discussed above, the MLC of the victim Ex. PW6/A has the categorical observation of Dr. Silky Kothiwal that the local examination of the Perineal Area of the victim was conducted and on separating Majora - Vulva Area was found Red. Ld. Amicus Curiae for the accused Ms. Sadhna Bhatia, during the course of her arguments, has laid thrust upon the factum that the Hymen of the victim was found intact and that PW 6 in her crossexamination also opined that the Redness over the Vulva Region could also be due to some other factor other than the sexual assault. However, I am not in conformity with the contentions of the Ld. Amicus Curiae, as first of all the Hymen being intact or having been ruptured in itself, is no conclusive proof of a penetrative sexual assault having taken place or not, as has Judgment : FIR No. 334/16 page 15 of 18 SC No. 58958/16 State Vs. Vijay Kumar been observed in MODI in Medical Jurisprudence and Toxicology (21st Edition), the relevant part of which is as under :
"Thus to constitute the offence of Rape, it is not necessary that there should be complete penetration of penis with emission of semen and Rupture of Hymen. Partial penetration of the penis within the Labia Major or the Vulva or Pudenda with or without emission of Semen or even an attempt at penetration is quite sufficient for the purpose of law. It is therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
31. Further more, in the case in hand, the penetrative sexual assault has been allegedly committed by the accused by inserting his finger in her urinary part and generally, the force with which the finger is inserted though causes immense pain, may not generally be sufficient enough to rupture the Hymen. It is also to be noted that the opinion of the doctor is not conclusive that no sexual assault had occurred. The medical evidence comprising of the presence of Redness over the Vulva Region of the victim, she complaining of pain in her Perineal area, are all vital pieces of corroborative evidence to the emphatic ocular testimony of the victim and her mother, which are convincing and reliable.
DEFENCE OF THE ACCUSED.
32. The defence of the accused, which has been put forth, is that he Judgment : FIR No. 334/16 page 16 of 18 SC No. 58958/16 State Vs. Vijay Kumar has been falsely implicated at the instance of the father of the victim, because he is the relative of Ishar Kabari, and victim's father had got the friend / room mate Balram of the accused arrested in the matter of the theft of mobile phone of Ishar Kabari, and due to enemity between them, at the instance of Ishar Kabari, the present accused has been implicated in this false case. The accused was unable to establish any relationship or any proximity between the father of the victim and Ishar Kabari, while the father of the victim as well his wife have categorically denied, Ishar Kabari being their relative. Moreover, the defence of the accused is too far fetched and uninspiring. Why would any parents bring forth their four years old daughter as a tool for teaching one Balram a lesson for being enemical towards a neighbour Ishar Kabari by implicating not Balram but Balram's friend in a false case. Moreover, if Balram had been implicated in the case of theft of mobile phone of Ishar Kabari, a counter attack in the form of a false case, if so, would have come forth at the instance of Balram, who had been implicated in some other case, but not at the instance of Ishar Kabari through the victim's family. The defence of the accused is therefore not found inspiring, and is of no help to the accused.
33. In view of my discussions above, it emerges that ;
(i) on the day of incident, the victim was about 5 years of age;
(ii) the accused took the victim with him, in order to sexually assault her;
(iii) the accused committed penetrative sexual assault upon the victim by inserting his finger in her urinary part.
(iv) the witnesses are trustworthy and accused has not been able to raise any defence.
Judgment : FIR No. 334/16 page 17 of 18
SC No. 58958/16 State Vs. Vijay Kumar
34. Conclusion : In the light of my discussion above, the
testimony of prosecution witnesses is found to be trustworthy and reliable, and the prosecution has succeeded in proving that the accused committed Aggravated Penetrative Sexual Assault upon the victim, aged around 5 years, at the time of incident, and thus having committed an offence described u/s 5 (m) of the POCSO Act, and punishable U/s 6 of POCSO Act and u/s 376 (2)(i) IPC.
35. Accordingly, the accused is convicted for the offence punishable U/s 6 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and u/s 376 (2)(i) IPC.
36. Matter be listed for arguments on the quantum of sentence on 21.09.2017.
File be consigned to record room.
Announced in the open court
today i.e. on 19.09.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 19.09.2017
Judgment : FIR No. 334/16 page 18 of 18