Delhi District Court
Fir No. 780/13 : State vs Akash @ Bawla : Ps Mangol Puri on 9 December, 2015
FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 04/14)
Unique ID case No.02404R0006302014
State Vs. Akash @ Bawla
FIR No. : 780/13
U/s : 452/323/354 IPC & 8 POCSO Act
P.S. : Mangol Puri
State Vs. Akash @ Bawla
S/o Sh. Maha Singh
R/o Jhuggie no. Y133,
Mangol Puri, Delhi.
Date of institution of case 04.01.2014
Date of arguments : 30.11.2015
Date of pronouncement of judgment : 30.11.2015
J U D G M E N T :
1. The facts of the case as born out from the record are that on 07.12.2013, on receipt of DD no. 31A Ex. PW6/A, PW6 HC Subhash Sharma along with Ct. Mobin Ali reached at the spot, where complainant/PW5 Mahesh Page 1 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri Kumar produced accused Akash @ Bawla along with one sword, before him and got his statement recorded, wherein he stated that on 06.12.2013, her daughter N, aged about 15 years (hereinafter referred to as 'prosecutrix) had gone to market to purchase some household articles and on the way, accused caught hold of her hand and teased her, on which she raised alarm and she was rescued by one neighbour namely Priya, who told him entire incident and thereafter, he made accused understand and gave 2/3 slaps to him. He further stated that on 07.12.2013, at about 8.00 pm, he along with his wife and daughter i.e. prosecutrix was present at his house, suddenly accused entered into his house and caught hold of the prosecutrix from behind and teased her and on his objection, accused abused him and attacked him with a sword, due to which, he sustained injury on his shoulder. He further stated that his wife and prosecutrix raised alarm, on which, public persons gathered at the spot and caught hold of the accused and gave beatings to him. The witness requested for his medical examination and for legal action against accused.
On the basis of aforesaid statement of the complainant. the present case was registered. Complainant was medically examined and his clothes were sealed and seized. The sketch of the sword was prepared and thereafter, it was also sealed and seized. Accused was arrested in the case. Statement of prosecutrix u/s 164 Cr.P.C was got recorded, wherein also she reiterated about the acts of the accused. After completion of the investigation, IO filed the charge sheet in the matter.
Page 2 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. On 21.04.2014, charges u/s 7 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 8 of Act, alternatively u/s 354 IPC, were framed against the accused, to which he pleaded not guilty and claimed trial. After recording the statement of the complainant as PW5, learned Addl. PP moved an application u/s 216 Cr.P.C for framing additional charges against the accused and said application was allowed vide order dated 02.01.2015 and additional charges u/s 27 of Arms Act and 324 IPC were framed against the accused, to which also, he pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused in the matter, the prosecution examined as many as eight witnesses. A brief scrutiny of the evidence recorded in the matter, is as under.
4. PW1 HC Pawan Kumar was lying posted as duty officer in PS Mangol Puri on 07.12.2013 and has proved the endorsement made by him on rukka as Ex. PW1/A and computerized copy of FIR as Ex. PW1/B.
5. PW2 Ct. Momin Ali had joined the investigation with IO/PW6 HC Subhash Sharma and deposed on the same lines as of PW6. Page 3 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri
6. The prosecutrix in the present case was examined as PW3 and relevant portion of her testimony is as under : "xxxxxxx .... On 06.12.2013, after evening hours I alongwith one bhabi Priya who is residing in our gali went to nearby market. In the meanwhile accused Akash who is called by the name of Bawla in the gali and who is residing in the same gali where I am residing, came in the market. He caught hold of my hand due to which I raised alarm. My said bhabi Priya asked me as to what had happened. I told her about the incident. Infact, Priya bhabi had witnessed the incident. Crowd of public persons gathered in the market due to which accused ran away from there.
Thereafter, I alongwith bhabi hired a cycle rickshaw for going back to home. Accused suddenly appeared there and again caught hold of my hand and tried to drag me from teh rickshaw due to which I nearly fell off the rickshaw. After reaching home, I narrated the incident to my parents and even Priya bhabi had also told the incident. My father got angry after hearing this and he went towards the house of accused and slapped him. On this, accused had threatened my father to see him.
On 07.12.2013, at about 8 Pm, I was present at my Page 4 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri home with my parents, when accused Akash @ Bawla came in my house with a sword in his hand. His two other friends whom I did not know also came with swords in their hands but they remained standing outside my house. Accused Akash started misbehaving with me by holding my hand and waist. I raised alarm. On hearing this my parents who were present on the first floor came down stairs. Accused pushed my mother and slap her. My father went try to stop accused, he gave a sword blow on the shoulder of my father. I raised alarm due to which two boys who came alongwith accused Akash ran away from there however, accused Akash was apprehended by the mohalla people with his sword. My father had called the police at 100 number. Accused use to misbehave with me prior to the incident by making gestures, by whistling towards me and by singing songs. Earlier also accused had entered in my house and I raised alarm. This was not reported to the police as examination of 11th class were going on and hence my mother had sent me to the house of my maternal grand mother. Since I could get admission in any school in the area of my maternal grand mother, I had to come back to my house.
.....xxx"
Page 5 of 25
FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri This witness identified her signatures on her statement Ex. PW3/A recorded u/s 164 Cr.P.C.
During crossexamination, the witness was confronted with her earlier statement recorded by the police on the point of she accompanying Priya Bhabhi, about telling the incident by Priya bhabhi to her parents, about apprehension of the accused with sward by mohalla people etc. During further crossexamination, the witness termed it correct that her family and family of accused were residing in the same street for many years, but she denied that accused Akash had studied with her in the same class or she was on speaking terms with him or she was friendly with him. She termed it correct that there were shops near the place of incident and many public persons had gathered there at the time of incident. She further stated that nobody from the public tried to apprehend accused. The witness was confronted with her statement recorded u/s 161 Cr.P.C with regard to accused having given sword blow on the shoulder of her father, two more boys accompanying the accused on 07.12.2013, earlier visit by the accused to her house and misbehaviour by the accused with her prior to the incident by making gestures, by whistling towards her and by singing songs. She termed it correct that she had never made any police complaint or any call at 100 number against the accused prior to this incident.
7. PW4 Priya has been put forth as an eye witness and she deposed that Page 6 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri on 06.12.2013, at about 6.00/7.00 pm, she along with prosecutrix had gone to market for purchasing some household things, suddenly accused appeared in the market and caught hold of the hand of the prosecutrix and asked her to talk to him, for which, prosecutrix refused. She further deposed that thereafter, she along with prosecutrix returned home and she narrated entire incident to the father of the prosecutrix.
In reply to a leading question put to her by the ld. Addl. PP, the witness termed it correct that police had met her and made inquiry about the incident from her. She further stated that she had not stated to the police that father of the prosecutrix had tried to make the accused understand, but he did not pay any heed thereof, due to which father of prosecutrix gave 23 slaps to him.
During crossexamination by learned defence counsel, the witness termed it correct that house of accused was situated next to the house of the prosecutrix and both the families had been residing there for many years. She further termed it correct that police did not record her statement in her presence. She also termed it correct that prosecutrix was having talking terms with accused, however, she volunteered to state that they were talking like a neighbor only. She further termed it correct that at the time of incident prosecutrix did not raise any alarm.
8. PW5 Mahesh is the complainant/father of the prosecutrix in the present case and he deposed that on 06.12.2013, prosecutrix had gone to Page 7 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri market for shopping with his neighbour Priya, where accused had misbehaved with prosecutrix and molested her and on raising alarm by her, crowd had gathered there and Priya tried to make accused understand not to misbehave with prosecutrix and thereafter, she and Priya hired a rickshaw in order to avoid accused, but accused followed them and caught hold of hand of prosecutrix and pulled her from the rickshaw, due to which she fell off the rickshaw and sustained injury on her elbow. He further deposed that on her return, prosecutrix narrated the whole incident to him and then, he called accused and asked him about his misconduct and slapped him and thereafter, he went away.
PW5 further deposed that on 07.12.2013, at about 8.00 pm, he was present in his house and suddenly, accused entered into his house and started misbehaving with prosecutrix by catching hold of her from behind and on hearing the noise of prosecutrix, he left his food and went to check. He further deposed that his wife tried to rescue prosecutrix, but accused pushed her and when he tried to stop him, he took out a sword and gave a sword blow on him, on which, he sustained injury on his shoulder and said blow of sword partially landed on bed, which was in standing position behind him and on hearing the alarm raised by them, public persons gathered over there and accused was apprehended by him with the help of public persons and thereafter, he was beaten by the public. He further deposed that thereafter, at about 8.45 pm, he made a call at PS Mangol Puri, on which police officials came to the spot and IO prepared the sketch Ex. PW2/C of Page 8 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri the sword and sealed and seized it vide memo Ex.PW2/D. He further deposed that IO recorded his statement Ex. PW5/A and prepared site plan at his instance. The witness further deposed about arrest and personal search of the accused vide arrest memo Ex. PW2/A and personal search memo Ex. Ex. PW2/B. He further deposed about his medical examination and about recording of his supplementary statement by the police. The witness identified the accused as well as sword Ex. P1 used by the accused and the shirt as Ex.P2, which he was wearing at the time of incident.
During crossexamination, the witness stated that the house of the accused was at the distance of 23 houses from his house and he was residing in his locality for the last 1520 years. He termed it correct that he did not make any call at 100 number on 06.12.2013 and he did not go to the house of accused on 06.12.2013 to make complaint against him. He further termed it correct that some blood had oozed out of the injury due to the sword blow given to him by the accused. He further stated that the accused was apprehended by Balbir and 23 public persons of his locality. He further termed it correct that prior to 07.12.2013, he did not make any police complaint against the accused.
9. PW6 HC Subhash is the Investigating officer of the case and he deposed that on 07.12.2013, on entrustment of DD no. 31A Ex. PW6/A regarding teasing of prosecutrix by accused, he alongwith PW2 Ct. Momin Ali reached at the spot, i.e Y80 Jhuggi, Mangolpuri, where complainant Page 9 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri Mahesh met him and he produced accused as well as one sword, which was stated to be brought by accused, before him and then, complainant got his statement Ex.PW5/A recorded, on the basis of which, he made his endorsement, prepared rukka Ex.PW6/B and got the case FIR registered through PW2. The witness further deposed about preparation of the site plan Ex. PW6/C, about preparation of sketch Ex. PW2/C of sword and about sealing and seizure of the same vide memo Ex. PW2/D. The witness further deposed about getting the medical examination of injured conducted vide MLC Ex. PW6/F and about seizure of the blood stained clothes of the injured vide seizure memo Ex. PW6/D. He further deposed about arrest and personal search of the accused vide memos Ex. PW2/A and Ex. PW2/B, about his medical examination vide MLC Ex. PW6/E and about deposit of case property in the Mal Khana. The witness further deposed about getting the statement Ex. PW3/A of the prosecutrix recorded u/s 164 Cr.P.C vide his application Ex.PW6/G and obtained copy thereof vide his application Ex. PW6/H and about collecting the MCD birth certificate Ex. PW6/J of the prosecutrix. The witness also identified the sward as Ex. P1 and Shirt of the injured as Ex. P2.
During crossexamination by learned defence counsel, the witness termed it correct that he had not sent Ex. P2 to FSL. He further stated that he had not shown the bed in site plan prepared by him and he did not record the statement of any public person from the neighbourhood of complainant. He further stated that when he had met the prosecutrix, she Page 10 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri was not having any injury. He further termed it correct that he did not find any blood stains on the sword, which was handed over to him by the complainant and said sword was not having sharp edge. He further stated that it was not mentioned by him in the site plan Ex. PW6/C as to where the injured was standing at the time assault. He further stated that no public person agreed to give his name and address, who had apprehended and beaten the accused.
10. PW7, Sh. Sumedh Kumar Sethi, ld. M.M, in his evidence has proved statement of the prosecutrix as Ex. PW7/B, recorded by him under Section 164 Cr.P.C on 09.12.2013.
11. PW8, Sh. Ram Kishan, SubRegistrar, MCD, has produced the birth record of prosecutrix and proved the relevant entry of the birth register as Ex. PW8/A and as per the record, her date of birth was 22.05.1998.
12. Statement of the accused u/s 313 Cr.P.C was recorded, wherein he claimed to be falsely implicated in this case by the prosecutrix at the instance of her father. He did not wish to lead evidence in his defence.
13. I have heard the arguments from both the sides and also perused the case file carefully.
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14. Ld. Addl. PP for the State has very vehemently argued that the prosecutrix is consistent in her statement recorded under Section 161 Cr.PC, her statement recorded under Section 164 Cr.PC (Ex.PW3/B) and her evidence recorded in the court with regard to the act of sexual assault committed upon her by the accused twice i.e. on 06.12.2013 and 07.12.2013. It is further argued that the evidence of prosecutrix finds due corroboration from independent witnesses Smt. Priya who has been examined as PW4 in the matter. It is next argued that the age of the prosecutrix has not been disputed by the defence. It is further argued that the prosecution has duly proved the recovery of sword Ex.P1 as well as use thereof by the accused against the father of the prosecutrix Sh Mahesh Kumar (PW5) and as such has sought conviction of the accused for offences punishable under Section 8 of the Act, Section 27 of the Arms Act and Section 34 of the IPC.
15. Per contra, ld defence counsel has very vehemently argued that the accused has been falsely implicated in the matter. The accused was in a love affair with prosecutrix and they used to meet regularly in the market and on 06.12.2013 when they were present in the market and were talking to each other they were spotted by PW4 Smt. Priya, who in turn informed about the same to the father of the prosecutrix PW5. Thereafter, PW5 went to the house of the accused with a sword in his hand on 07.12.2013 and there a quarrel took place between accused and PW5 and at that time a number of Page 12 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri other persons from the locality also gathered and in the said quarrel PW5 as well as accused suffered injuries.
16. It is next argued that there are apparent contradiction in the statement of prosecutrix recorded under Section 164 Cr.PC as well as her evidence recorded in the court wherein she had made huge improvements.
17. It is next contended that as per the prosecution case, a number of public persons had gathered at the spot on 07.12.2013. IO has not recorded the statement of any public witnesses and as such, false implication of the accused in the matter cannot be ruled out. It is argued that the mother of the prosecutrix is a vital witness in this case because as per the evidence of PW5 as well as prosecutrix, she was pushed by the accused but she has not been examined as a witness in the matter and as such again the false implication of the accused cannot be ruled out.
18. I have given thoughtful consideration to the arguments advanced at bar. As far as the commission of the offence punishable under Section 8 of the Act in the matter is concerned, the prosecutrix is categorical in her statement recorded under Section 164 Cr.PC (Ex.P3/B) as well as her evidence recorded in the court, the sexual assault committed upon the prosecutrix by the accused on 06.12.2013 has been corroborated by PW4 as well. In her evidence recorded in the court the prosecutrix has stated certain additional facts with regard to the previous attempts of the sexual assault committed upon her by Page 13 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri the accused which she had not told to the police as well as to the Ld MM at the time of recording her statement. However, she is intact with regard to the act of sexual assault committed upon her by the accused on 06.12.2013 and 07.12.2013, therefore, the additional facts stated by her in her evidence can be ignored being clearly separable from the facts regarding sexual assault.
19. The prosecution has placed on record list of cases in which the accused was found involved previously. The nature of the offences involved in those cases, makes it prima facie apparent that he is a person with short fuse and has a propensity to pick up quarrel with all and sundry.
20. Here in this case, the defence of the accused is that he was in a love relationship with the prosecutrix but he has not produced any evidence in support of his aforesaid defence.
21. The Ld defence counsel has vehemently argued that in Ex. PW3/B, the prosecutrix has not stated about she having boarded rickshaw with PW4 on 06.12.2013. It is further argued that the prosecutrix had exaggerated the incident dated 07.12.2013 and as such her version is liable to be rejected.
22. This has to be born in mind that the present case is under the Act and this act was enacted with the objective that the children of tender age are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in condition of Page 14 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri freedom and dignity. The aims and object of the act further consider it imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical emotional, intellectual and social development of the child. The preamble of the Act reads as under : 'An act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.'
23. Therefore, the act is a special act, which has been enacted bearing in mind the child psychology as well as the latent sexual abuse of children in the society as well as family, which is apparent from the provisions of Section 29 and 30 thereof, which are reproduced as under :
29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
30. Presumption of culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Page 15 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
24. In the light of the aim and objects of the Act and the specific provisions like Section 29 and 30 of the Act, reproduced hereinabove, the presumption of innocence of the accused as is available to him under ordinary criminal jurisprudence is not available, in child abuse jurisprudence and the presumption, if any, available under the Act are to be considered strictly in accordance with the provisions of the Act and not under the ordinary criminal jurisprudence.
25. I have considered the evidence in the matter in its entirety and I find that the prosecutrix is consistent with regard to the act of sexual assault upon her by the accused on both the aforesaid dates. However, with regard to the suffering of injuries by PW5 and accused, her evidence is little shaky, which will be considered in succeeding paragraph.
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26. With regard to the incident dated 07.12.2013, it is apparent that matter was reported to the police by PW5 at about 4:45 pm whereafter PW6 alongwith PW2 had reached at the spot and there the accused was handed over to them by PW5 and he had also handed over ExP1 to the IO.
27. From the evidence recorded in the matter it is apparent that sword Ex.P1 was handed over by PW5 and the same was not recovered from the accused. It is also apparent that Ex.P1 was not carrying any blood stains. When Ex.P1 was produced in the court, this court had sufficient opportunity to make assessment of it. This court found it to be reasonable big sword with no sharp edge at all. It is also apparent that the shirt being wore by PW5 at the time of incident i.e. PW2 also did not have any cut mark thereupon. PW5 in his evidence has stated that when accused had given sword blow to him he had opportunity to ward of and some part of the sword had hit the wooden coat and said wooden coat had damage mark thereupon. In this case, the IO neither seized that coat nor even photographs of the damage on the wooden coat were taken. Even the MLC of PW5 has not been proved by calling doctor. The mother of the child victim, who was a material witness has also not been examined in the matter who would have at least helped the prosecution in proving the incident dated 07.12.2013 with regard to the use of sword by the accused against her husband and he having suffered injury due to that.
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28. A perusal of the MLC of PW5 reveals that he had suffered an incised wound on her left shoulder. In the considered opinion of this court, the incised wound could not have been caused by Ex. P1 as it does not have sharp edge. The least the IO should have done was to have put Ex.P1 to the concerned doctor and could have obtained opinion as to whether the injury mentioned in the MLC of PW5 could have been caused by Ex.P1.
29. It is also apparent that a number of persons of the locality had witnessed the incident dated 07.12.2013 but no independent corroboration of incident of that date has come on record.
30. In the MLC of accused he was found to have swelling and tenderness over his right hand thumb. As per evidence of PW5, he had suffered that injury through the hands of the public persons, who had gathered at the spot but as per the version of the accused he had suffered this injury in the quarrel which was picked up by PW5. The prosecution was required to explain the injury suffered by the accused through cogent evidence which is not available on record. From the aforesaid discussion it can be safely deduced that the use of sword Ex.P1 by the accused upon PW5 has not been establish by the prosecution. Similarly, the injury suffered by PW5 has also not been proved.
31. In view of the above discussions, the accused stands convicted for the Page 18 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri offence punishable under Section 8 of the Act whereas he stands acquitted of the offences punishable under Section 27 of the Arms Act and Section 324 IPC. Since I have already convicted the accused under Section 8 of the Act, I do not deem it fit to consider his conviction in alternative section of IPC. Let the accused be heard on sentence on 02.12.2015.
Dictated & Announced in the (Vinod Yadav)
open Court on 30.11.2015 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
Page 19 of 25
FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE:
(NORTHWEST)01: ROHINI DISTRICT COURTS: DELHI
(Sessions Case No. 04/14)
Unique ID case No.02404R0006302014
State Vs. Akash @ Bawla
FIR No. : 780/13
U/s : 452/323/354 IPC & 8 POCSO Act
P.S. : Mangol Puri
State
Vs.
Akash @ Bawla
S/o Sh. Maha Singh
R/o Jhuggie no. Y133,
Mangol Puri, Delhi.
....Convict
09.12.2015
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with ld. Amicus Curie Sh. Rajnish Kumar Antil. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Akash @ Bawla has been convicted u/s 8 of POCSO Act, 2012.
Page 20 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and Sh. Rajnish Kumar Antil, ld. Amicus Curie, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor girls are on rise in the society, whereby the mental and physical development of the children gets affected substantially. It is specifically emphasized that the when the father of the prosecutrix objected to the acts of the convict, the convict attacked him and caused injuries on his person. The learned Addl. PP has prayed for the maximum punishment prescribed under Section 8 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned counsel for the convict has argued that convict is a young boy having age of 23 years and is having responsibility of maintaining his old aged parents. It is further submitted that the convict is the sole bread earner of his family. It is further submitted that convict was earlier working at a Beauty Parlour and had remained in custody for more than two years during trial. He prays that in view of the aforesaid family circumstances of the convict, a lenient view may be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is the sole bread earner of his family, having responsibility of his old aged parents. Bearing in mind, the facts and Page 21 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 8 of POCSO Act, for which, the convict stands convicted as he has been able to make out good mitigating circumstances in his favour. I hereby award rigorous imprisonment for a period of 3 (three) years along with fine of Rs. 1,000/, in default of payment of fine, further SI for a period of 3 months, for the offence u/s 8 of POCSO Act.
Benefit of Section 428 Cr.P.C is accorded to the convict.
5. Coming now to the aspect of compensation to the prosecutrix/child victim, who is a minor girl, the Hon'ble Apex Court has time and again observed that that subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. In a case titled as Bodhisattwa Gautam vs. Subhra Chakraborty, AIR 1996 SC 922, it has been held by Hon'ble Supreme Court that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape, which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life.
6. Even otherwise, the concept of welfare and well being of children is basic for any civilized society and this has a direct bearing on the state of health and well being of the entire community, its growth and development. It has been time and again emphasized in various legislations, international declarations as well as the judicial pronouncements that the Children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and Page 22 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri develop. In this regard reference is made to the following observations of Hon'ble Supreme Court in case of Laxmi Kant Pandey Vs. Union of India (1984) 2 SCC, 244, that :
"The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire selfconfidence and selfrespect and a balance view of life with full appreciation and realization of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process. In India this consciousness is reflected in the provisions enacted in the Constitution. Clause (3) of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of Page 23 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses
(e) and (f) of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country. The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children. This Policy starts with a goal oriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the child victim, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 10,000/ (Rs. Ten thousand only) to the child victim. The said amount shall be used for her welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, Page 24 of 25 FIR No. 780/13 : State V/s Akash @ Bawla : PS Mangol Puri GNCT of Delhi, for information and necessary action under intimation to this Court.
9. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 09.12.2015) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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