Delhi District Court
Sc No. 47/14 : Fir No. 377/13 : Ps ... vs Rais @ Lala on 30 January, 2016
SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01:
(NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI
(Sessions Case No. 47/14)
Unique Identification No.: 02404R0051462014
State V/s Rais @ Lala
FIR No. : 377/13
U/s : 363/376 IPC & 6 of POCSO Act
P.S. : Kanjhawala
State V/s Rais @ Lala
S/o Gama
R/o Near Shamshan Ghat Jhuggie,
Vijay Vihar, Delhi.
Date of institution of case : 13.02.2014
Date of arguments : 19.01.2016
Date of pronouncement of judgment : 28.01.2016
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SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
J U D G M E N T:
1. The facts of the case as borne out from the record are that on 17.11.2013, after entrustment of DD no. 11A Ex. PW3/A, PW18 W/SI Somna along with PW14 L/Ct. Geeta and Ct. Munshi lal went to the informed place i.e. bushes near the Telephone Exchange, village Qutabgarh, Delhi, where PW8 Rakesh met them and he produced accused Rais @ Lala before PW18 and disclosed that he had caught the accused redhanded while he was doing wrong act with child N , aged about 7 years (hereinafter referred to as 'child victim'). Thereafter, PW18 got the child victim medically examined through PW14 at SGM Hospital and accused was also got medically examined by her. She also seized the exhibits given to her by the doctor. Child victim was got counseled through an NGO counselor and thereafter her statement was recorded by PW18 in questionanswer form. In the said statement, the child victim stated that "aaj ek gubbare bechane wala uncle (accused) hamari gali me aaya. Usse maine gubbare manga. Gubbare wala uncle ne mujhe 20 rupye va ek gubbara diya aur gubbare wala uncle mujhe jhariyon me le gaya, aur uncle ne meri nikkar utar di, aur apni susu karne wali cheej meri su su karne wali jagah me dalne laga, to maine rone lagi. Meri awaz sunkar hamare padosi Rakesh uncle aa gaye, unhone mujhe chhudaya aur gubbare wale uncle ko Page 2 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala pakad liya"
On the basis of the aforesaid statement of the child victim, the present case FIR was registered. Site plan of the place of occurrence was prepared by IO at the instance of child victim. Accused was arrested and his disclosure statement was recorded. Statement of the child victim u/s 164 Cr.P.C was got recorded. Statements of the other witnesses were also recorded. Exhibits of the case were also got sent to the FSL Rohini. After conclusion of the investigation, the charge sheet was prepared and filed in the court.
2. After filing of the charge sheet in the matter, the copy thereof, was supplied to the accused. Arguments on the point of charge were heard and on 03.04.2014, charges u/s 363 IPC and u/s 5 (m) of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "Act"), punishable u/s 6 of Act, alternatively u/s 376 (2) (i) IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined as many as 18 witnesses, whereafter the PE in the matter was closed and statement of accused u/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent Page 3 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala and having been falsely implicated in the case by the police. The accused did not lead any evidence in his defence.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of State and Sh. Jitender Singh, ld. counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories :
(a) Child victim, her family members and public witnesses
(b) Evidence with regard to the age of the child victim
(c) Medical Evidence
(d) Forensic Evidence
(e) Formal witnesses
(f) Evidence of police officials of investigation
(a) Child victim, her family members and public witness
5. The Child victim in the present case was examined as PW9 and the relevant portion of her testimony is as under : "xxxxx Q. Beta batao kya hua tha apke sath ?
Ans. Uss din Sunday tha aur yeh subah ki baat hai.
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SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
Mere mummy, papa khet (field) me gaye the.
Q. Phir kya hua ?
Ans. Woh gubbarawala aaya aur woh bansi bajane laga.
Uske pass gubbare bhi the aur bansi bhi thi.
Q. Aap kaha the ?
Ans. Mein ghar ke andar thi. Mein Bansi ki awaz
sunkar bahar aayi.
Q. Phir kya hua ?
Ans. Usne mujhko bola ki chalo beta mein tumhe
gubbara deta hu.
Q. Woh phir tumhe kaha lekar gaya ?
Ans. Woh mujhe gali me lekar gaya. Mera bhai bhi
mere sath gaya tha. Toh usne mere bhai ko paise diye aur bola jao beta Shikhar Gutka lekar aao.
Q. Phir kya hua ?
Ans. Usne mujhe 20 rupaiye dekar ek gubbara bhi diya
aur mujhe jhaddiyo (bushes) me le gaya aur mujhe gaudi me bitha diya.
Q. Phir kya hua ?
Ans. Uske baad usne mujhe dharti par leta diya aur usne
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SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
mera pant khola aur apna bhi pant khola.
Q. Phir kya hua ?
Ans. Phir usne apne susu ko mere susu me daal diya.
Q. Uske baad kya hua beta ?
Ans. Mein jor se chilayi toh mujhe bachane Rakesh
uncle aaya.
Q. Rakesh uncle kaun hai aur woh kaha rehte hai ?
Ans. Rakesh uncle ne mujhe bachaya aur woh wahi
rehte hai.
Q. Phir kya hua beta ?
Ans. Police aaya aur mujhse pucha ki beta tere sath kya
hua tha aur maine sab bata diya. Yeh sab baat maine police thane me batayi thi. .....
xxx"
The witness correctly identified the accused in the court. During the crossexamination by learned defence counsel, the witness stated as under : "xxx Q. Kya apne bansi bajanewali baat police ko bata di thi ?
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SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
Ans. Ha maine bata di thi.
Q. Kya apne police ko bata diya thi gubbarewale ne
apke bhai ko Shikhar Gutka laine ke liye bhej diya tha ?
Ans. Nahi bataya tha.
Q. Beta jab apko gubbarewala lekar ja raha tha tab
raste me koi aur tha yah nahi tha ?
Ans. Koi nahi tha.
Q. Jab apne shor machaya tab waha par bheed ikattah
ho gayi thi yah nahi ?
Ans. Ha ho gayi thi.
Q. Uss bheed me se aap kuch ko aap jante the aur
kuch anjaan log bhi the, kya yeh baat sahi hai ?
Ans. Ha mein sab ko nahi janti thi, Rakesh uncle ko
janti thi.
Q. Kya yeh baat sahi hai ki jab waha par Rakesh uncle
aaye uss se pehle gubbarewala bhag gaya tha ?
Ans. Yeh sahi hai ki gubbarewala Rakesh uncle ke aane
se pehle bhag gaya tha.
Court Ques. Beta yeh batao ki gubbarewale ko kisne pakada
tha ?
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Ans. Gubbarewale ko Raja ne pakada tha.
Court Ques. Raja kaun hai ?
Ans. Raja gali me rehta hai.
Court Ques. Raja ko kisne gubbarewale ke barre me bataya ?
Ans. Jab Rakesh uncle mujhe bachne aa rahe the, tab gubbarewala waha se bhag raha tha. Rakesh uncle ne mujhe bachaya aur Raja uncle ko bola ki usse pakad le.
Ques. Kya yeh baat sahi hai ki Raja uncle ne gubbarewale ko pakad kar police ko de diya tha ?
Ans. Ha yeh baat sahi hai.
Q. beta aaj aap kiske sath aaye ho ghar se ?
Ans. Papa ke sath aayi hu.
Q. Kya aap aaj police wali madam se mili thi ?
Ans. Ha.
Q. Kya aaj policewali aunty ne apko apke bayaan padd
kar sunaye the ?
Ans. Nahi.
Q. Kya aaj apko jo apne bataya woh policewali aunty
ne yah apke papa ne bolne ko kaha tha ?
Ans. Nahi, mein apne aapse bata rahi hu aisa hua tha.
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Q. Kya yeh thik hai ki aaj aap jhuth bol rahe ho?
Ans. Nahi mein sach bol rahi hu.
xxx"
6. PW7 Sh. Vir Singh, the father of the child victim, deposed that on one Sunday at about 9.30 am (witness could not tell the exact date and month) of the last year, on receipt of information from one boy about the incident, he had gone to PS Kanjhawala, where he came to know that one balloon seller (accused) had come in the gali and taken child victim N with him and on hearing her cries, the villagers had apprehended the accused on the doubt that he must have done something wrong with child victim and then they had taken the accused to PS. The witness expressed his unawareness about the facts, which were told by child victim to the police and deposed that she was being inquired in some separate room. He further deposed that later on, he came to know the name of balloon seller as Rais and he correctly identified the accused in court.
As this witness could not depose as per his statement recorded u/s 161 Cr.P.C, he was crossexamined by learned Addl. PP and during the said cross examination, the witness termed it correct that his statement was recorded by the police in the present case and that the incident had taken place on 17.11.13. He Page 9 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala termed it correct that the incident had taken place near bushes near telephone exchange of Village Qutubgarh and that he was called at the spot, where he found the police officials and one person by the name of Rakesh, present there with child victim and the accused. He also termed it correct that police had told him that accused had committed wrong act with child victim after giving her Rs. 20/ and a balloon and the child victim had produced the said balloon and currency note of Rs. 20/ before the police in his presence. The witness termed it correct that police had taken into possession the said currency note of Rs. 20/ and the balloon in his presence and identified his signatures on the seizure memo Ex. PW7/A. He also identified his signatures on the seizure memo Ex. PW7/B of balloon and air filling pump, but volunteered to state that he was not aware about the contents of said seizure memo being illiterate. He termed it correct that after medical examination of child victim, doctor had taken her wearing clothes and the same were seized by the police and he also identified his signatures in this regard on the seizure memo Ex. PW7/C. He further termed it correct that police had prepared site plan of the place of incident at the instance of child victim in his presence.
During crossexamination by learned defence counsel, the witness termed it correct that he had not witnessed anything about the incident and whatever was told to him about the incident by Rakesh, he had stated the same to Page 10 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala the police.
7. PW8 Sh. Rakesh, is a public witness, who had apprehended the accused redhanded and rescued the child victim and he deposed that in the 11th month of the last year i.e 2013, at about 9.00/10.00 am, when he was passing through the bushes near the telephone exchange, he noticed that accused, who was a balloon seller, had made a small girl i.e. child victim, sit with him and on the basis of suspicion, he apprehended him and called the public persons from the village and public persons gave beatings to accused. He further deposed that police was called by the public person and thereafter police took the child victim as well as accused to the PS, where parents of child victim were also called. He further deposed that he had also gone to the PS, but kept sitting outside the room and showed his unawareness about the proceedings conducted by the police in the police station.
As this witness did not depose as per his statement recorded u/s 161 Cr.P.C, he was crossexamined by learned Addl. PP and during the said cross examination, the witness admitted that he had stated to the police that on the above said date, when he was passing through near the bushes at about 9.00 am accused had been committing wrong act with the child victim and was apprehended by Page 11 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala him. He also admitted having stated to the police that someone from the public had called the police at 100 number and police had reached at the spot and that Vir Singh was also called there and that child victim child had produced currency note of Rs. 20/ and one balloon before the police, which was taken into possession by the police vide seizure memo Ex.PW7/A. He further admitted having stated to the police that one air filling pump and few balloons were also seized by the police vide seizure memo Ex.PW7/B. He also termed it correct that child victim was taken to the hospital for medical examination and after her medical examination the doctor had taken her wearing clothes and the same were seized by the police and he identified his signatures on the seizure memo Ex. PW7/C. He also identified his signatures on the arrest and personal search memo Ex.PW8/A and Ex.PW8/B of the accused. On the accused being pointed out to him by the ld. Addl. PP, he stated that he could not say, as to whether he was the same person, who was arrested by the police or not. He denied that he had intentionally and deliberately not identified the accused having been over by him and his family members.
During crossexamination by the learned defence counsel, the witness denied that his signatures were obtained by the police on the blank papers. He termed it correct that he had not gone through the contents of the seizure memo before signing the same. He volunteered to state that at that time, many persons were present in the PS and hence he did not go through the same. He also showed Page 12 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala his unawareness about the proceedings conducted by W/SI Somna qua the child victim.
8. PW11 Sh. Ashish Gupta, deposed that on 17.11.13, after leaving his father at his MTNL office at Qutubgarh Telephone Exchange, he was returning home and when he was about to start his motorcycle, he heard the noise "Pakro Pakro" and then, he saw that public persons were trying to apprehend one balloon seller i.e. accused and in fact one or two persons had apprehended him. He further deposed that he came to know the name of the person, who was raising noise "Pakro Pakro" as Rakesh, but he did not know the name of said gubbarewala and the minor girl, with whom the accused had committed wrong act and said girl was also standing besides Rakesh and was weeping. He further deposed that police was called by dialing 100 number from his mobile phone. The witness correctly identified the accused in the court.
During crossexamination by learned defence counsel, the witness stated that his statement was recorded on the same day at the place of incident itself i.e. Qutubgarh Telephone Exchange. He termed it correct that whatever he had told the police about the incident, was what had been heard by him from the other public persons.
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(b) Evidence with regard to age of the child victim
9. The prosecution examined PW1 Sh. Shripal Singh, Principal of MC Primary Girls School, Qutabgarh, Delhi, who produced the school record regarding date of birth of the child victim and deposed that as per the school record, she was admitted in the school in 2nd class, on the basis of admission form Ex. PW1/A and affidavit Ex. PW1/B of her mother and her date of birth was entered in the school record as 22.05.2006. She also proved the relevant entry in the admission register as Ex.PW1/C. As per the school record, the child victim was admittedly aged about 7 years and 5 months, as on the date of incident. It is worthwhile to note that the defence has not disputed the age of child victim at any stage of trial.
(c) Medical evidence
10. PW10 Dr. Rashmi Verma, proved the MLC of the child victim as Ex.
PW10/A by identifying the handwriting and signatures of Dr. Asha Nagpal and deposed that as per the MLC, there were slight abrasions on vulva and the hymen was intact.
During crossexamination, the witness stated that abrasion on the vulva could be caused by scratching also. She further termed it correct that Dr. Asha Page 14 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala Nagpal had not prepared the MLC in her presence and she did not have personal knowledge about the present case. In reply to some specific questions, she replied as under : Q: I put it to you that if there is a history of penetrative assault of a 8 years old child, then there would be wide spread damage to her labia majora, labia minora, fourchette and hymen? Ans: It is not necessary. Such a damage can occur only if there is a complete penetrative assault.
Q: I put it to you that if there is a history of penetrative assault of a 8 years old child by a grown up man of 28 years, then there would be wide spread damage to her labia majora, labia minora, fourchette and hymen?
Ans: It is not necessary. Such a damage can occur only if there is a complete penetrative assault.
11. PW12 Dr. Brijesh Singh, CMO, had examined the accused vide MLC Ex. PW12/A and had given report regarding his potency and deposed regarding the same. He further deposed that on the same day, child victim was initially examined by Dr. Naveen Gupta, under his supervision vide MLC Ex. PW10/A Page 15 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala and then, she was referred to SR Gynae for further examination.
(d) Forensic Evidence
12. PW17, Ms. Seema Nain, Senior Scientific Officer, FSL, Rohini, had examined the exhibits of the present case and proved her DNA examination report as Ex. PW17/A. She further deposed that as per her finding, DNA profiling (STR analysis) performed on the source of exhibits '1a (cotton wool swabs of victim), 1c1 (blood sample of victim), 1d1 (frock of victim), 1d2 (knicker of victim) and '2' (blood sample of accused Rais @ Lala) was sufficient to conclude that allelic data of DNA profile from the source of exhibits '2' (blood sample of accused Rais @ Lala) was accounted in the allelic data of DNA profile from the source of exhibits '1a' (cotton wool swabs of victim), '1d1' (frock of victim), '1d2 (knicker of victim).
(e) Evidence of Formal witnesses
13. PW2 Smt. Nazma Khan, had counseled the child victim and her parents and in her presence, PW18 W/SI Somna had recorded the statement Ex. PW2/A of child victim and deposed regarding the same.
14. PW3 W/HC Saroj was lying posted as Duty Officer in PS Kanjhawala at Page 16 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala the relevant time and she proved the attested copy of DD no. 11A as Ex. PW3/A recorded by her on receipt of information about wrong act with a small girl and about apprehension of accused. She also proved the endorsement made by her on the rukka as Ex. PW3/B and computerized copy of FIR as Ex. PW3/C.
15. PW4 Ct. Naveen Kumar, had taken the exhibits of the present case to FSL Rohini, vide RC no. 199/21/13 and deposited the same there and deposed regarding the same. He also proved the copy of RC and acknowledgment receipt of FSL as Ex. PW4/A and Ex. PW4/B respectively.
16. PW5, Ms. Meenu Kaushik, ld. M.M, in her evidence has proved statement of child victim as Ex. PW5/B, recorded by her under Section 164 Cr.P.C on 19.11.2013.
17. PW6 W/Ct. Suman was lying posted as computer operator at PS Kanjhawala on 17.11.2013 and she had typed the FIR in the present case on computer and deposed regarding the same. She also proved the certificate u/s 65B of Evidence Act as Ex. PW6/A. Page 17 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala
18. PW7 Ct. Ram Sewak was lying posted at PCR call center on 17.11.2013 and he deposed that on that day, at about 9.54 am, on receipt of a call from mobile no. 8802774844 to the effect "yaha par ek admi choti bachhi ke sath galat harkat kar raha tha, jisse public ekathi hai at Qutabgarh Telephone Exchange, he filled in the PCR form Ex. PW13/A and dispatched it to Control Operator for necessary action.
19. PW16, HC Rajbir Singh was working as MHCM at PS Kanjhawala at the relevant period and he proved the entries made by him in register no. 19 and 21 as Ex. PW16/A, PW4/A and Ex. PW4/B, which were made by him at the time of deposit of case property with him and at the time of sending the same to FSL Rohini and deposed regarding the same. He further deposed that on 05.05.2014, Ct. Ajay Kumar handed over one FSL Result and two sealed pullandas to him and he handed over the FSL result to PW18 W/SI Somna.
(d) Evidence of police officials of investigation
20. PW18 W/SI Somna is the investigating officer of the case and she deposed that on 17.11.2013, after entrustment of DD no. 11A Ex. PW3/A regarding misbehaviour by a person with a small girl near telephone exchange Qutubgarh, Page 18 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala she along with PW14 L/Ct.Geeta and Ct. Munshi Lal went to the spot i.e. bushes of telephone exchange Qutubgarh, Delhi, where one Rakesh produced the accused as well as child victim before her. She made inquires from the accused and got the accused medically examined at SGM Hospital. She also got the child victim medically examined through PW14 and then collected her MLC Ex.PW10/A and also seized the exhibits of child victim vide seizure memo Ex. PW7/C. She further deposed that after getting the child victim counseled through NGO counselor, she recorded the statement Ex. PW2/A of child victim in question answer form and on the basis of her statement, she made her endorsement on rukka Ex. PW3/B and got the case FIR registered through Ct.Munshi Lal. She further deposed that SI Sudhir Rathi had produced the sealed exhibits of accused before her and she seized the same vide seizure memo Ex. PW5/A. The witness further deposed about preparation of the site plan Ex. PW18/A at the instance of child victim, about making inquiry from PW Rakesh, about arrest and personal search of the accused vide memos Ex. PW8/B and Ex. PW8/C, about taking into possession the Rs.20/ note and one balloon of yellow and white print colour and one small cloth bag containing other balloons, vide memo Ex. PW7/A and about taking into possession one air filling pump for balloons vide memo Ex. PW7/B. She further deposed about getting the statement of child victim recorded u/s 164 Cr.P.C vide her application Ex. PW5/A and obtaining copy thereof vide Page 19 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala application Ex. PW5/D, about collecting the age proof Ex. PW1/D of child victim, about sending the exhibits of the present case to FSL Rohini through Ct. Naveen, about collecting the PCR form Ex. PW13/A, about collecting the FSL result Ex.PW17A, about recording of the statements of the witnesses and about filing of the charge sheet in the court. She also identified the accused as well as the case property i.e. one steel air pump for filling air in the balloon, along with few balloons of different colour in a gray colour bag as Ex. P1 to P3 and the balloon of blue white and yellor print as Ex. P4 and currency note of Rs. 20/ as Ex. P5.
During crossexamination by learned defence counsel, the witness stated that the FIR in the matter was registered pursuant to DD No.11A. She denied that accused was not apprehended by any person, when she had reached at the spot. She also denied that no blood stains were noticed either on the clothes of accused or of child victim. She termed it correct that she did not record the number of currency note of Rs.20/ in the memo. She further stated that she did not get the child victim counseled prior to recording of her statement u/s 164 Cr.P.C. She termed it correct that she had not obtained the Age Certificate of child victim issued by MCD.
21. PW14 L/Ct. Geeta had joined the investigation of the present case with Page 20 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala IO/PW18 W/SI Somna on 17.11.2013 and deposed on the same lines as of PW18.
22. PW15 SI Sudhir Rathi had joined the investigation of the present case with IO/PW18 W/SI Somna and got the accused medically examined and deposed regarding the same. He also proved the seizure memo of the accused's exhibits prepared by PW18 as Ex. PW15/A. Arguments advanced at Bar
23. Ld. Additional Public Prosecutor for the State has very vehemently argued that the child victim is consistent in her all statements with regard to the commission of sexual assault upon her by the accused on 17.11.2013in the morning and her testimony before the court is clear cogent and trustworthy and as such the conviction in the matter can be based on her sole testimony.
24. Per contra, the Ld. Defence Counsel Sh. Jitender Singhadvocate has argued as under:
(a) That no explicit reliance can be placed upon the testimony of child victim because of huge variations, contradictions and improvements made by her in her evidence over and above her earlier statements.
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(b) That the case of prosecution is without independent corroboration and the conviction in the matter cannot be based on the sole testimony of child victim.
25. I have given thoughtful considerations to the arguments advanced at bar and perused the entire material on record. My plea wise findings in the matter are as under:
(a) The plea regarding the variations, contradictions and improvements in the testimony of child victim
26. It is argued by Ld. Defence Counsel that in her first statement recorded by the IO i.e. Ex. PW 2/A, the child victim had not stated about the fact that her brother was also with her at the time of incident, to whom the accused had given a note of Rs. 10/ to bring 'shikhar gutkha' for him. She had also not stated about the accused being blowing flute to attract the public to sell his balloons. At that time she had stated that when the accused had made attempt to insert his penis in her vagina she had started weeping . Whereas in her statement Ex. PW 5/B recorded U/S 164 CrPC she had made improvement to the effect that the accused had inserted his penis into her vagina and only thereafter she had cried. Even in this statement she had not stated about her brother accompanying her at that time, Page 22 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala however in her evidence recorded in the court she had added facts with regard to the accused blowing flute and having sent her brother to fetch ' Shikhar Gutkha' for him and here again she made improvement with regard to the act of sexual assault by stating that the accused had inserted his penis into her vagina. It is also pointed out that in her crossexamination she introduced another person by the name of Raja, who she claimed to have apprehended the accused at the spot .
27. On the strength of the aforesaid alleged improvements the Ld. Defence counsel has built his argument that the child victim is not a trustworthy witness and as such no explicit reliance can be placed upon her testimony.
28. I have carefully gone through all the aforesaid statements of the child victim as well as the facts and circumstances of the case as appearing on record. It is apparent that the incident had happened at about 10:00 a.m. in the morning at which time only the child victim and her brother were present at their house. Her father PW7 Sh. Veer Singh had gone to sell vegetables in the market. It is further apparent that he had reached at the spot only after the incident, on the calling of the IO by then the statement of child victim Ex. PW 2/A had already been recorded by the IO. Therefore, tutoring of child victim by her father is completely ruled out in the matter. It is also note worthy that Ex. PW 2/A was recorded by the IO rightly in Page 23 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala question answer form considering the tender age of child victim. It is also apparent that the IO had asked very limited questions to her to illicit information about the crime committed against her. It is also possible that at that time the child victim might be in a condition of trauma and shock. It is also apparent that at that time none of her family members was present there. Same is the position with regard to the statement of child victim recorded U/S 164 CrPC. Here also the Ld. Magistrate had probably asked limited questions to her but in her evidence the Ld. Additional Public Prosecutor had put several questions to her with regard to the incident in entirety and in response thereto some additional information has come on record. The said information is not with regard to the act of sexual assault committed upon child victim by the accused. Therefore, the response/ statement of the child victim in the matter was not expressive but responsive as far as Ex. PW 2/A and Ex. PW 5/B is concerned, however her evidence tends towards her expressive statement.
29. A joint reading of her two earlier statements and her evidence recorded in the court reveals that she is consistent with regard to following facts.
a. It was a Sunday morning ;
b the accused was a balloon seller (this fact has not been
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disputed by the defence ;
c. the accused had taken her to a secluded place in bushes and had removed his pant and her lower clothes and had tried to commit sexual assault upon her;
d. the accused was apprehended at the spot and she was rescued by Rakesh uncle.
30. This court cannot lose sight of the fact that the child victim is a child aged about 7 years and she is presumed to be not fully aware of her body anatomy and autonomy . From the incident the only thing which she presumably came to know was that she was given pain by the accused in his attempt to put his penis into her vagina as a consequence whereof she had cried which ultimately caught the attention of PW Rakesh. The law is now fairly settled that the conviction can be based on the sole testimony of a child victim provided it is trustworthy. I find no reason as to why a child of such tender age as the child victim would implicate an innocent person for an offence which was undisputedly committed upon her. No plausible justification has come forth from accused, why such a vulnerable child would nurture enmity or grudge or ill will against him. In this regard it has been held by Hon'ble Supreme Court in case titled as State of UP Vs. Krishan Master, AIR 2010 SC 3071, that : Page 25 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala "xxx There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A Child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. xxxx"
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31. If the law laid down in the aforesaid judgment is applied to the facts of the present case then it would be evident that despite being of tender age the child victim has clearly and lucidly given account of what had happened with her in the matter. Her evidence as a whole inspires confidence of the court and this court is of the opinion that her evidence is liable to be believed in toto.
32. There is further reason to believe the evidence of child victim as it finds corroboration from medical as well as forensic evidence. In her MLC Ex. PW 10/A which was conducted after a very short while of the incident, child victim had given correct history to the Doctor, consistent with the facts of the case. Abrasion was found on her vulva . Immediately thereafter the samples from her body were collected by the Doctor. At or around the same time the accused was also subjected to medical examination vide MLC Ex. PW 12/A and the samples from his body were also collected by a different Doctor. The FSL report in the matter is Ex. PW 17/A which shows that human semen was detected upon the vulval swab of the child victim and her frock and knicker . The DNA finger printing of this semen was obtained and the same was matched with the blood sample of the accused and the allelic data obtained therefrom confirmed that the semen found upon the Page 27 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala aforesaid objects of the child victim was of accused. The conclusion of the DNA examination as mentioned in Ex. PW 17/A is as under: "xxx Conclusion: DNA Profiling (STR analysis) performed on the source of exhibits '1a' ( Cotton wool swabs of victim), '1c1( Blood sample of victim), '1d1' ( Frock of victim), '1d2' ( knicker of victim), and '2' ( Blood sample of accused Rais @ Lala), is sufficient to conclude that allelic date of DNA profile from the source of exhibits '2' ( Blood sample of accused Rais @ Lala) is accounted in the allelic data of DNA profile from the source of exhibits '1a' ( Cotton wool swabs of victim), '1d1' ( Frock of victim), '1d2' ( knicker of victim) xxx".
Therefore, it has been established by the prosecution that the accused had ejaculated upon the vulva of the child victim.
33. Section 30 of the Act contemplates that the accused has to prove his defence beyond reasonable doubt. The burden of proof upon the accused in this case is very heavy. The accused has not been able to prove as to how his biological fluid came to be on the private parts of the prosecutrix.
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34. The Ld. Defence Counsel has contended that the forensic evidence in the matter is not liable to be considered at all as firstly the DNA analysis is not a perfect science and secondly the possibility of the police having manipulated the biological exhibits of child victim cannot be ruled out. I do not agree with this argument of the Ld. Defence Counsel as firstly no suggestion about the manipulation of biological objects in the matter was given to either PW10 Dr. Rashmi Verma or to PW12 Dr. Brijesh Singh or to PW15 SI Sudhir Rathi.
35. Having this opinion, I am supported in my view by judgment, in the case of Rajkumar vs. State of M.P, 2014 III AD (S.C.) 257, wherein the Hon'ble Supreme Court relied upon the earlier judgments in (i) Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012), 1 SCC 10 and (ii) State of W.B. vs. Mir Mohammad Omar, AIR 2000 SC 2988, and held that : "xxx .... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve Page 29 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala the prosecution of its burden to prove the guilt of the accused, beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
xxx"
(B) Plea regarding no independent corroboration of the evidence of child victim
36. The Ld. Defence Counsel has very vehemently argued that the sole eye witness projected in the case i.e. PW8 Sh. Rakesh has turned hostile to the prosecution case and as such the false implication of the accused in the matter cannot be ruled out.
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37. I do not agree with the aforesaid argument of the Ld. Defence Counsel, I have carefully gone through the evidence of PW8 and I do not think that he has not supported the prosecution case in material particulars. In his examination in chief he has categorically admitted his presence at the spot at the time of incident. As per his evidence he had seen a person who was selling balloons had made a small girl sit with him. He could not identify the accused to be the said balloon seller. Thereafter, in his crossexamination by the Ld. Additional P P for the State he deposed as under: "xxx It is also correct that accused was arrested in my presence and I had signed his arrest papers i.e. the arrest memo and personal search memo which are Ex. PW 8/A and Ex. PW 8/B. I cannot say if the accused present in the court today ( accused has been specifically pointed out to the witness by the Ld. Addl. P P) is the same person who was arrested by the police. It is incorrect to suggest that I am intentionally and deliberately not identifying the accused as I have been won over by the accused and his family members. I do not know if accused is resident of village Qutubgarh or of some other place. I had seen him for the fist time in the village xxx".
38. In the crossexamination of this witness by the Ld. Defence Counsel he Page 31 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala categorically denied the suggestion that his signatures were obtained by the police on blank papers. The manner in which, the testimony of the hostile witness is to be considered, has been elaborated upon by the Hon'ble Supreme Court in State of U.P. vs. Ramesh Prasad Misra & Anr. AIR, 1996 SC 2766, wherein it was held that : "xxx ... Evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence, which is consistent with the either case of the prosecution, or that of defence, may be relied upon. .....
xxx"
Therefore, the evidence of PW8 is believable to the extent that he had rescued the child victim and the arrest of the accused was effected in his presence.
39. We have another eye witness, who is PW11 Sh. Ashish Gupta. This witness was also present at the spot at the time of incident. He had seen PW8 Rakesh raising alarm by saying,'pakdopakdo'. He thereafter had made call to the police at Page 32 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala number 100 and DD No. 11 A whereupon was recorded in PS Kanjhawala. This witness has correctly identified the accused to be the person who was apprehended at the spot.
40. Therefore, the evidence of child victim finds enough corroboration from the evidence of PW8 and PW11 although no corroboration was required in the matter in view of the clear, cogent and trustworthy testimony of child victim.
41. It is conspicuously apparent in this matter that the accused has not taken any specific defence regarding his false implication in the matter. He just wants to rely upon the flaws if any in the testimony of prosecution witnesses. In terms of the provisions of Section 30 of the Act a huge burden was cast upon him to have proved his innocence beyond reasonable doubt which he has miserably failed in this matter. There are no allegations by the accused that the child victim had been tutored to falsely implicate him in the matter either by her father or by the police. The facts and circumstances of the case clearly spell out that the father of the child victim PW7 Sh. Veer Singh was not even present when the incident had happened and the statement of child victim Ex. PW 2/A was recorded. Similarly the accused has also miserably failed in establishing the fact that he was falsely implicated in the matter by the police.
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42. Now question arises as to whether through the evidence of child victim, medical evidence and forensic evidence whether the prosecution has succeeded in proving the commission of aggravated penetrative sexual assault upon the child victim by the accused.
43. From the testimony of the child victim and her two earlier statements Ex. PW 2/A and Ex. PW 5/B it is evident that the accused had penetrated his penis into the vulva of child victim. The definition of penetrative sexual assault given in the act contemplates the penetration to 'any extent '. The medical and forensic evidence proves that the accused had ejaculated upon the vulva of child victim. The age of the child victim has not been disputed by the defence.
44. Therefore, the prosecution has been able to prove the commission of aggravated penetrative sexual assault by the accused upon the child victim. Accordingly the accused stands convicted for offence punishable U/S 6 of the Act. Since the accused has been convicted U/S 6 of the Act, I do not wish to consider the alternative charge framed against the accused in the matter U/S 376 of IPC.
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45. Let the accused be heard on the point of sentence on 30.01.2016.
Announced in the open Court (Vinod Yadav)
on 28.01.2016 Addl. Sessions Judge01 (NorthWest):
Rohini District Courts: New Delhi
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IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01 (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI (Sessions Case No. 47/14) Unique Identification No.: 02404R0051462014 State V/s Rais @ Lala FIR No. : 377/13 U/s : 363/376 IPC & 6 of POCSO Act P.S. : Kanjhawala State V/s Rais @ Lala S/o Gama R/o Near Shamshan Ghat Jhuggie, Vijay Vihar, Delhi.
....Convict
30.01.2016
ORDER ON SENTENCE
Pr: Ld.Addl.PP for state.
Convict produced from J.C with counsel Sh. Jitender Singh. Page 36 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala ORDER ON THE POINT OF SENTENCE In the present case, the convict - Rais @ Lala has been convicted u/s 6 of POCSO Act, 2012.
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the State and learned defence counsel, for the convict.
2. The learned Addl. PP has very vehemently argued that the sexual assaults upon the minor children are on rise in the society, whereby the mental and physical development of the children gets affected substantially and in the present case, convict committed aggravated penetrative sexual assault upon a minor girl aged about 8 years and that in view of the serious nature of offences, the convict does not deserve any leniency and she prays that maximum sentence prescribed under Section 6 of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned defence counsel for the convict has argued that convict is a young person having 30 years of age and is having his wife, three minor children aged about 5 years, 3 years and 2 years respectively as well as his old aged mother to support as his father has already expired. He further submitted that accused was doing work as balloon seller to support his family. He further submitted that convict is first time Page 37 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala offender having clean antecedents and he has remained in Jail for a period of more than two years during trial of the case. He prays that in view of the aforesaid 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 a young boy having responsibility of his family consisting of wife, three minor children and old aged mother. Bearing in mind, the facts and circumstances of the case in totality, the interest of justice, would be met, if the convict is accorded minimum sentence prescribed under Sections 6 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 10 (ten) years along with fine of Rs. 10,000/, in default of payment of fine, further SI for a period of six months, for the offence u/s 6 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, 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 Page 38 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala 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 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 Page 39 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala 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 self respect 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 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 Page 40 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala 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 goaloriented perambulatory introduction."
7. Therefore, in order to provide Restorative and Compensatory Justice to the victim girls, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 50,000/ (Rs. Fifty 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. 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.
Page 41 of 42 SC No. 47/14 : FIR No. 377/13 : PS Kanjhawala : State V/s Rais @ Lala File be consigned to record room.
(Announced in the open ) (Vinod Yadav)
(Court on 30.01.2016) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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