Delhi District Court
State vs Ashwani Kumar @ Avnish on 4 December, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44479/15
FIR No. 633/14
PS Gokal Puri
U/S 376 (2) (f)(k) & 506 (II) IPC
Section 6 POCSO Act.
State
Versus
Ashwani Kumar @ Avnish,
S/o Sh. Mewa Ram,
R/o B655, Gali No. 8,
Johripur Mata Wali Gali,
Delhi94. ....Accused.
Date of Institution : 04.09.2014
Date of Arguments : 16.11.2017
Date of Pronouncement : 16.11.2017
JUDGMENT
Brief facts of the case are that on 25.06.2014, present case was registered on the complaint of victim, a minor girl aged around 11 years. She alleged that she was residing at her house with her family and FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 1 of 26 ASJ01/NE/KKD: 16.11.2017 was studying in class 5 in MCD school. Around one month ago, during summer vacations, she had gone to the house of her maternal uncle at Nangloi. Her mother had gone to the native village of her grandparents' due to demise of someone. On 23.06.2014, her father telephoned her maternal uncle, abused him and on the premise that she had to be taken to village, asked him to leave her home. On the same day, at around 10.50pm, maternal uncle of victim left her with her father. Victim and her father had dinner and then victim asked her father to go on the roof but her father refused and told her that they would sleep downstairs. Thereafter, her father bolted the room from inside. He then tied her hands with a chunni and lowered her lower clothes. Victim objected to it but her father did not pay any heed. He then raped her and cleaned blood with a pocha. He threatened her that if she told about the incident to anyone, he would kill her. She and her father then went upstairs to sleep. On next morning, at around 5.00am, her father brought her downstairs and asked her to do household work. When she was cleaning the utensils, she was weeping. Then, her landlady, whom she called Amma asked her the reason for crying. Victim then narrated the entire incident to Amma, who called her mother and narrated the acts of accused to her mother. She further alleged that she also called her maternal uncle Pradeep, who took her to his house at Nangloi. On these allegations, present FIR was registered.
2. During investigation, victim was medically examined. At the FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 2 of 26 ASJ01/NE/KKD: 16.11.2017 instance of victim, accused was arrested on 12.07.2014. After completion of investigation, charge sheet u/s 376/506 IPC and Section 6 POCSO Act was filed against the accused.
3. On 08.09.2014, charge u/s 376 (2) (f) (k) IPC and section 506 (II) IPC in alternative u/s 6 POCSO Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4. Prosecution has examined 14 witnesses to prove its case.
5. PW1 is Sunny Tomar. He deposed that on 07.07.2014, he had taken the sealed pulindas including sample seal from MHC(M) to FSL Rohini. After depositing the pulindas at FSL, Rohini, he handed the receipt to MHCM.
6. PW2 is the victim. Her testimony shall be considered at a later stage as and when required.
7. PW3 is Smt. Sarla. She is mother of victim. Her testimony shall be considered at a later stage as and when required.
8. PW4 is Ct. Sumit. He deposed that on 12.07.2014, he joined investigation with SI Anita and in search of accused, went to Loni roundabout , Gokul Puri. Wife of accused was also with them. At the instance of wife of accused, he was apprehended near the flyover and was arrested vide memo Ex.PW3/B. Personal search of accused was conducted vide memo Ex.PW3/C. From the personal search of accused, one mobile FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 3 of 26 ASJ01/NE/KKD: 16.11.2017 phone, one purse of cherry colour having Rs.50/ were recovered. He took the accused to GTB Hospital for medical examination. After medical examination, he handed the sealed pulindas to IO who seized them vide memo Ex.PW4/A.
9. PW5 is WCt. Kavita. She deposed that on 25.06.2014, on the instructions of duty officer she, alongwith ASI Raj Pal, had taken the victim to GTB Hospital for her medical examination. After the medical examination of victim, she handed the copy of MLC, sample seal and sexual assault kit to IO who seized them vide memo Ex.PW5/A.
10. PW6 is Ms. Shakeel Fatima, principal from EDMC School. She deposed that as per records, victim was admitted in their school in class 1st on 14.07.2010. As per records, the date of birth of victim was 22.01.2005. She proved the admission register as Ex.PW6/A, admission form as Ex.PW6/B, copy of affidavit as Ex.PW6/C and Ex.PW6/C1. The certificate issued by school was proved as Ex.PW6/D.
11. PW7 is Ct. Deepak Kumar. He deposed that on 22.07.2014, on the directions of SI Anita, vide RC No. 91/21/14 (Ex.PW7/A), he had taken six pulindas to FSL. After depositing them in FSL, he handed the acknowledgement receipt (Ex.PW7/B) to MHC(M).
12. PW8 is Smt. Dayawati. She is the landlady of accused. Her testimony shall be considered at a later stage as and when required.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 4 of 26 ASJ01/NE/KKD: 16.11.2017
13. PW9 is HC Vijay Pal. He deposed that on 25.06.2014, he was posted as MHC(M) at PS Gokal Puri. On that day, WSI Anita had deposited in malkhana two pulindas in sealed condition with sample seal of GTB Hospital and he made entry vide sl. no. 222 in register no. 19. Copy of entry was Ex.PW9/A. He further deposed that on 12.07.2014, WSI Anita again deposited in malkhana three pulindas in sealed condition with sample seal of GTB Hospital and personal search articles of accused and he made entry at sl. no. 227 in register no. 19. Copy of entry was Ex.PW9/B. On 07.07.2014, vide RC no. 85/21/14 (Ex.PW9/C), samples of victim i.e. two pulindas were sent to FSL through Ct. Sunny. After depositing the pulindas in FSL, Ct. Sunny gave him an acknowledgement receipt, copy of which was Ex.PW9/D. On 22.07.2014, vide RC No. 91/21/14 (Ex.PW9/E), samples of accused i.e. four pulindas were sent to FSL through Ct. Deepak. After depositing the pulindas in FSL, Ct. Deepak handed him an acknowledgement receipt, copy of which was Ex.PW9/F.
14. PW10 is ASI Braham Singh. He deposed that on 25.06.2014, at about 04.30 p.m., Pradeep Kumar reported that his brother in law had committed wrong act with her niece and he recorded DD No. 30A (Ex.PW10/A). That DD was marked to ASI Raj Pal who alongwith Ct. Kavita and complaint went at the spot. WSI Anita was telephonically informed to take appropriate action. At about 09.30 p.m., SI Anita handed him a rukka for registration of FIR. He made endorsement (Ex.PW10/B) on FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 5 of 26 ASJ01/NE/KKD: 16.11.2017 the rukka. On the basis of rukka, he got FIR, Ex.PW10/C, registered. After registration of FIR, he handed the original rukka and copy of FIR to WSI Anita for further investigation.
15. PW11 is SI Anita, IO of the case. Her testimony shall be considered at a later stage as and when required.
16. PW12 is Dr. Jyotsana Gupta. She deposed that on 25.06.2014 at about 07.25 p.m., she examined victim and prepared MLC no. G102/2014 (Ex.PW12/A). As that MLC was not legible, therefore, on the request of IO, she prepared fresh copy of MLC, which was Ex.PW12/B. She also prepared emergency registration card of victim, which was Ex.PW12/C.
17. PW13 is Dr. Davender Kumar. He deposed that on 12.07.2014, he was on duty as Casualty Medical Officer alongwith Dr. Bhanu, Jr. Resident. On that day, Dr. Bhanu had medically examined accused Avnish and prepared MLC No. B2774/ (Ex.PW13/A).
18. PW14 is Pradeep. He is maternal uncle of the victim. His testimony shall be considered at a later stage as and when required.
19. I have heard learned Addl. PP for State as well as learned counsel for accused and perused the record very carefully.
20. It has been contended by learned Addl. PP that the prosecution has proved its case beyond all reasonable doubts. He has FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 6 of 26 ASJ01/NE/KKD: 16.11.2017 contended that the victim was the minor daughter of accused, who had been summoned to his house by accused when her mother was not there. This fact has not only been proved by victim but has also been proved by PW14, who had dropped her at the house of accused. He has further contended that PW8 Dayawati has also proved that on the day of incident, victim was present at the house of accused. He has further contended that victim in her examination in chief has clearly deposed that she was raped by accused and this fact has been corroborated by medical examination where the hymen of victim was found to be a fresh tear. He has therefore, contended that in view of the settled preposition of law that sole testimony of victim is sufficient to bring home the guilt of accused, the prosecution has proved its case. Therefore, the sole reliable testimony of victim which is corroborated by medical evidence is sufficient to bring home the guilt of the accused.
21. On the contrary, learned counsel for accused has contended that this is a clear case of false implication. He has further contended that there were quarrels between the mother and father of the victim and they were having strained relations for past two years. In order to falsely implicate the accused, mother has used her influence over victim and has levelled false allegations against accused. He has further contended that as per the FIR, the victim had stated that when she was summoned by her father/ accused, Ajeet and Pradeep had dropped at her father's house but while appearing as a witness in the court, she stated that it was Ajeet who FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 7 of 26 ASJ01/NE/KKD: 16.11.2017 had dropped her. However, Ajeet is the resident of same street and therefore, there was no occasion that he could have brought her from Nangloi and dropped her at her house. Even otherwise, this Ajeet has not been examined as a witness. He has further contended that on the day of alleged incident, victim was not in the house of accused. He has further contended that as per the case of the prosecution, victim was raped in the intervening night of 23/24.06.2014. However, as per PW3, who is mother of victim, she had met the victim on 23.06.2014 and at that time, victim had told her that she had been raped. If as per the case of the prosecution, the victim was raped in the intervening night of 23/24.06.2014, victim could not have disclosed these facts to her mother on 23.06.2014. Therefore, it is concocted story which has been built in order to implicate the accused. He has further contended that IO has also deposed that she had started the investigation of this case on 23.06.2014 whereas the incident would not have happened by then and thus, this shows a clear conspiracy to falsely implicate the accused. He has further contended that although the MLC of the victim has reflected a fresh tear of hymen but this is of no consequence as the doctor (PW12), during her cross examination, had clearly admitted that tear of hymen could also be caused by some other injuries and it is not necessary that it would always happen on sexual intercourse. He has further contended that the FSL report has clearly absolved the accused and had there been any sexual intercourse by father of victim i.e. accused, this FSL report could have revealed the presence of semen and this also proves that FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 8 of 26 ASJ01/NE/KKD: 16.11.2017 victim has falsely deposed in order to implicate the accused.
22. Countering the same, it has been contended by learned Addl. PP that it was merely a loss of memory of witnesses that mother of victim and IO had stated that they came to know about the incident on 23.06.2014. He has further contended that in the very beginning, mother of victim (PW3) had clearly stated that she did not remember the exact time but it was the month of June 2014 and therefore, she could not have stated about the date at a later stage. He has further contended that although IO had stated in her examination in chief that she started investigation of this case on 23.06.2014 but she went on to state that on the same day, the victim was medically examined and after medical examination of victim, she had deposited the exhibits of victim in malkhana. The factual position will thus emerge from the documents, which is the MLC, which reflects that victim was medically examined on 25.06.2014 and the statement of MHC(M), who appeared as PW9 and stated that the exhibits of victim were deposited in malkhana on 25.06.2014 and therefore, not much of weightage can be given to these dates as stated by these witnesses.
23. I have carefully considered the rival submissions.
24. First, I shall take the contention of learned counsel for accused that there was a motive for false implication of accused. The motive was that the mother of victim and the father of victim, who is accused, were having strained relations because mother of victim was inviting other men FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 9 of 26 ASJ01/NE/KKD: 16.11.2017 in her house. Due to these strained relations, accused has been falsely implicated. In this regard, he had drawn my attention to the cross examination of victim wherein she had admitted that there used to be quarrels between her mother and father. Thus, he has contended that motive has clearly been proved by accused.
25. In this regard, I find that accused has failed to prove the motive which has been imputed and the testimony of victim is being misinterpreted by learned counsel for accused.
26. The victim, during her cross examination, had stated that only sometimes there used to be some fights between her mother and father otherwise they were having good and cordial relations. So what the victim has stated is the story of every household. There are some fights which happen between husband and wife but they share good and cordial relations. Similarly, mother of victim had clearly denied that she was having strained relations with accused. Apart from giving these suggestions, accused has not brought any evidence to show that there were any strained relations between him and his wife which would give her a motive to falsely implicate him.
27. Next, I shall take up the contention of learned counsel for accused that the testimony of victim is uncorroborated and therefore, on the basis of sole testimony of victim, conviction can not be held.
28. Firstly, this contention of learned counsel for accused is not FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 10 of 26 ASJ01/NE/KKD: 16.11.2017 supported by the legal position as it existed today. It has been well settled by now that as sexual offences are more often than not committed in private, at secluded places and away from public eye, it is usually not possible to find an eye witness who would corroborate the testimony of victim. Therefore, if the testimony of the victim of a penetrative sexual assault is found to be completely reliable, there would be no reason for the court to ask for any corroboration from any other witness and a verdict of guilty can be handed down only on the basis of sole testimony of victim.
29. In this regard, law has been laid down by Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 , wherein it was held as under:
23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which case shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony.
30. Further, in State of Rajasthan v. Babu Meena (2013) 4 SCC 206, it has been held as under:
9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, of found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In case of wholly FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 11 of 26 ASJ01/NE/KKD: 16.11.2017 reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused. (emphasis supplied.)
31. Further in Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, Hon'ble Apex Court has held as under:
It is true that in a case of rape the evidence or the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.
32. In view of the above legal proposition, let us test the testimony of the victim to find out whether her testimony is credible and reliable?
33. The victim, appearing as PW2, deposed that in summer vacations, she had gone to the house of her maternal uncle Pradeep, at Nangloi. Her mother, brother and sister had gone to village as her mami was pregnant. On 23.07.2014, she again said on 23.06.2014, as her father had asked for her, she returned to her house with her maternal uncle Ajeet. Her mother had not returned to the house. On that day at about 10.15 p.m., after the dinner, she asked her father to go on open terrace so that she could sleep but her father replied that he would go there after the electricity supply goes off. She slept on the bed. Her father also slept with her. Her father bolted FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 12 of 26 ASJ01/NE/KKD: 16.11.2017 the door from inside and tied her hands with a chunni. He removed her lower clothes and thereafter, had sexual intercourse with her. She resisted and raised alarm but as everyone else was sleeping on third floor, no body could hear her voice. At about 02.00 a.m., her father took her on the terrace for sleeping. Thereafter at about 05.00 a.m., he brought her down and asked her to clean and dust the room. Thereafter, he asked her to get ready for going to the village. At about 6.30/7.00 a.m., she narrated the incident to Kusum, daughterinlaw of land lady. The land lady asked her father to make a call to her mother as she wanted to talk with her mother. Her land lady narrated the incident to her mother. She also talked to her mother and narrated the incident. Her mother told her to call her maternal uncle Pradeep and to go with him. She talked with Pradeep whereafter Pradeep and Ajeet took her to his house. On the next day, her mother also reached at the house of her maternal uncle. From there, they went to police station and her statement Ex.PW2/A was recorded. She was taken to GTB Hospital where she was medically examined. Thereafter, she was brought to court where her statement u/s 164 Cr.P.C (Ex.PW2/B) was recorded.
34. Some leading questions were put to her by learned Addl. PP and she admitted that after the incident of sexual intercourse, there was bleeding from the private parts of the accused and he cleaned them with a cloth used for dusting. She admitted that she had pointed out the place where accused had sexual intercourse with her.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 13 of 26 ASJ01/NE/KKD: 16.11.2017
35. During her cross examination, she deposed that her Ajeet mama had brought her back to the house of her father. She denied that the allegations made by her in her examination in chief were unbelievable and false. She admitted that accused used to equally love all her brother and sisters. Prior to the incident, accused had never committed similar or such act with her. She denied that no such incident as alleged had ever happened and as such she never raised any alarm. Her mother had initiated the move to make complaint to the police. She also wanted to make a complaint to the police regarding the incident. She denied that she had deposed falsely or that she was used by her mother and mama to falsely implicate the accused in this case.
36. Now, if the testimony of the victim is seen, no contradictions have emerged during her cross examination and she has been consistent in her stand. If it is compared to her initial statement (Ex.PW2/A) on the basis of which the FIR was lodged, it is found to be almost completely similar. Similar is the case in her statement u/s 164 Cr.P.C.
37. Therefore, as there are no contradictions in the testimony of the victim, it appears to be a very reliable and credible testimony especially in view of the fact that in Indian society, a girl would rarely level such allegations against her father without there being any truth in them, especially if there is no motive for false implication. Though learned counsel for accused has contended that the allegations are motivated and FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 14 of 26 ASJ01/NE/KKD: 16.11.2017 have been levelled by victim at the instance of her mother. He contended that due to strained relations between accused and his wife, the wife wanted to get rid of accused and so, she used the victim. He has contended that victim, during her cross examination, has admitted that there used to be regular quarrels between her mother and father. He has further contended that motive of mother (PW3) is proved from the fact, that during her cross examination, she has stated that prior to the incident also, 56 times accused had tried to commit similar acts with victim but she saved him. However, the victim during her cross examination had stated that prior to this incident, accused had never tried to commit any such act with her. Therefore, the false statement made by mother of victim shows that she wanted to have accused implicated in a case and this proves the motive.
38. I have considered the rival submissions.
39. I find there is no force in the contention of learned counsel for accused. Firstly, because the victim had never stated that there used to be regular quarrels between her mother and father. On the contrary, she had stated that sometimes, her mother and father used to quarrel but otherwise, their relations were cordial. The quarrels between her mother and father were not due to matrimonial relations. As is evident from the testimony of victim, the relations between her parents were quite normal as they should be in a matrimony. Similarly, mother of victim, who appeared as PW3, had denied having any strained relations with her husband and accused had not FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 15 of 26 ASJ01/NE/KKD: 16.11.2017 brought any evidence to show that he and his wife had strained relations. Therefore, even by probability, it has not been proved on record that the relations between the mother and father of victim were strained and thus, there could be no motive with the mother of victim to use her to frame the accused.
40. As regards the statement of mother of victim that on earlier occasions also, accused had tried to commit similar acts with victim, I find that it is a mere embellishment which should not be given much significance as every such embellishment or exaggeration cannot amount to a contradiction going to the root of the matter and it would not in any way discredit the victim, who has otherwise been consistent.
41. However, the testimony of this victim is not completely uncorroborated. According to the victim, she was raped in the intervening night of 23/24.06.2014. As reflected on MLCs Ex.PW12/A and Ex.PW12/B, her medical examination was conducted on 25.06.2014 at around 07.25 p.m. As per the MLC, when victim was examined, the doctor found a fresh tear of hymen which would mean that hymen was recently torn. A fresh tear of hymen further corroborates the testimony of the victim. Although learned counsel for accused has contended that mere a tear of hymen would not prove any sexual intercourse as tear of hymen could have been caused by any other injuries/ activities, I find that this contention of learned counsel for accused loses its force in view of the fact that FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 16 of 26 ASJ01/NE/KKD: 16.11.2017 immediately after the alleged rape was committed by accused, the tear of the hymen was found fresh.
42. The presence of victim at the house, which the accused has denied, is established none other than by a hostile witness of the prosecution. That witness is PW8 Dayawati, the land lady of accused.
43. PW8, during her examination in chief, had stated that accused was her tenant but denied knowing anything about this case.
44. She was cross examined by learned Addl. PP. During her cross examination, she denied making any statement u/s 161 Cr.P.C, to which she was confronted. However, she admitted that mother of victim had gone to village Devi Dass for about 45 days in the month of June and victim had gone to Nangloi in the house of her (victim's) maternal uncle. She then denied that she had stated to the police that in the morning of 25.06.2014, she found victim weeping while cleaning utensils and victim told her father had raped her. She also denied that she had stated to the police on 25.06.2014 that victim had used her mobile phone to call her maternal uncle and thereafter, her maternal uncle Pradeep came and took her to Nangloi. However, she volunteered that victim had taken her mobile phone and talked with someone but she did not know with whom the victim talked on phone.
45. Therefore, this witness although turned hostile but had voluntarily stated a fact which establishes the presence of the victim at the FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 17 of 26 ASJ01/NE/KKD: 16.11.2017 house of accused because in continuation of the suggestions, which were being given to her regarding the day of incident, she had stated that on that day, victim had taken her phone to call someone. Meaning thereby, that on that day, victim was present in that house.
46. Learned counsel for accused has further contended that in absence of any positive FSL result, the testimony of victim cannot be relied upon.
47. First of all, there is no force in the contention of learned counsel for accused because a positive FSL report could have corroborated the testimony of victim but a report where FSL could not link the accused to crime would not have the effect of eroding the credibility of victim. Secondly, I find that although the FSL has not been able to find any DNA of accused on the samples of victim but one aspect of the FSL report to some extent, corroborates the testimony of the victim. That aspect is regarding Ex.2. This Ex.2 is a pocha.
48. In her initial statement (Ex.PW3/A), victim had stated that after the sexual intercourse, accused had wiped the blood with that pocha. She stated so in her examination in chief also. This pocha was seized by the police vide seizure memo Ex.PW11/B. This seizure memo was proved by PW11 SI Anita and this recovery was not challenged by accused. As per the FSL report, blood was detected on this pocha i.e. Ex.2. I do not say that this blood in any manner can be linked to accused, because it has not been.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 18 of 26 ASJ01/NE/KKD: 16.11.2017
However, the victim had testified that after the sexual intercourse, accused had wiped the blood with a pocha. This pocha was recovered at the instance of victim on 25.06.2014 and her statement to the effect that this pocha was used by accused had been recorded prior to that. Therefore, the presence of blood on this gives weight to the testimony of victim. I accordingly find that not only the sole testimony of victim is so credible as to bring home the guilt of accused but it is also corroborated by the medical evidence as well as to some extent by FSL report.
49. It is also to be noticed that there is a presumption u/s 29 of the POCSO Act, which reads 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.
50. It is to be seen that the provision of section 29 of the POCSO Act had been added by the legislature in order to protect the children from sexual assault and to ensure that the victims of such assault get justice and that is why the legislature had raised a presumption in favour of the prosecution.
51. This presumption of course is rebuttable. However, as discussed above, the accused has not been able to rebut this presumption FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 19 of 26 ASJ01/NE/KKD: 16.11.2017 either by denting the case of the prosecution or by leading his own evidence.
52. I accordingly find that the prosecution has proved beyond reasonable doubts that in the intervening night of 23/24.06.2014, accused had committed aggravated penetrative sexual assault upon the victim and thus, he has committed offence punishable u/s 6 POCSO Act.
53. As the accused as the father of victim and despite that, he had raped the victim, who was his minor daughter, I find that accused has also committed offence punishable u/s 376 (2) (f) IPC.
54. Now coming on to the charge u/s 506 IPC. As per the case of the prosecution, after committing sexual intercourse with victim, accused had threatened the victim not to disclose this act to anyone otherwise she would be killed.
55. Though the victim, during her examination in chief, has not uttered a single word about any threats being given by accused, but during her cross examination on behalf of ld. Addl. PP, she admitted that her father also threatened her not to disclose the incident to anybody otherwise he would kill her. On this part, no cross examination has been done on behalf of the accused. Further, the victim in her statement u/s 164 Cr.P.C had also stated that while doing sexual intercourse, her father had threatened her that if she disclosed these acts to anyone, he would kill her. She further stated that when she was crying, her father threatened to strangulate her throat.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 20 of 26 ASJ01/NE/KKD: 16.11.2017
56. In view of the above testimony of victim, which I have earlier found to be a reliable and credible testimony, it stands proved that accused after committing sexual intercourse had threatened the victim. Thus, I find that accused has committed offence punishable u/s 506 IPC.
57. Accused accordingly stands convicted for offences punishable u/s 6 POCSO Act, u/s 376 (2) (f) IPC and u/s 506 IPC.
58. Be heard separately on the point of sentence.
Pronounced in open court (Parveen Singh) today on 16.11.2017. Judge Special Court (POCSO Act) (This judgment contains 21 pages ASJ01, North East Distt., and each page bears my signatures) Karkardooma Court, Delhi.
FIR No. 633/14 (Parveen Singh)
Judge Spl. Court (POCSO Act)
PS Gokal Puri 21 of 26 ASJ01/NE/KKD: 16.11.2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44479/15
FIR No. 633/14
PS Gokal Puri
U/S 376 (2) (f) & 506 IPC
Section 6 POCSO Act.
State
Versus
Ashwani Kumar @ Avnish,
S/o Sh. Mewa Ram,
R/o B655, Gali No. 8,
Johripur Mata Wali Gali,
Delhi94. ...... Convict.
ORDER ON SENTENCE
Convict Ashwani Kumar @ Avnish stands convicted for offences punishable u/s 6 of the POCSO Act, u/s 376 (2) (f) IPC and u/s 506 IPC
2. Arguments on the point of sentence have been heard.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 22 of 26 ASJ01/NE/KKD: 16.11.2017
3. Ld. Addl. PP for State has contended that the convict had committed sexual assault upon the victim, who was her daughter and was aged about 11 years at the time of incident. He has further contended that being a father of victim, it was his duty to protect the victim and rather, he had committed sexual assault upon the victim. He has further contended that the convict has broken the trust of her daughter. He has further contended that such an incident is very traumatic and scars the child for life. There are no mitigating circumstances and therefore, maximum imprisonment i.e. life imprisonment should be awarded to the convict and a heavy fine should be imposed.
4. Countering the same, it is contended by learned counsel for the convict that convict is more than 40 years of age. He is the sole bread earner of his family. The convict has no previous criminal antecedents. He has further contended that convict has three brothers. One brother of convict is handicapped and convict is looking after his brother. One brother of convict has expired and convict has the responsibility to take care of the family of his deceased brother. He has thus prayed that lenient view should be taken towards the convict.
5. I have considered the rival contentions and weighed the mitigating and aggravating circumstances.
6. The Hon'ble Delhi High Court in Vikas Yadav v. State of Govt of UP in Crl. A. 910/2008 in judgment dated 06.02.2015 had held FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 23 of 26 ASJ01/NE/KKD: 16.11.2017 that an inquiry is required to be conducted by the court in order to arrive at a just and reasonable fine to be imposed upon the convicts.
7. The socio economic status of the convict was asked for.
8. SHO PS Gokal Puri has filed socio economic report of the convict. According to the report, the convict is of 41 years of age. He is 7th passed. He is doing stitching work in Gandhi Nagar. His monthly income is Rs.8,00010,000/.
9. As regards the mandate of section 357 Cr.P.C regarding defraying the expenses incurred by the State on investigation and prosecution of this case, Ld. Addl. PP has submitted that the State is not in a position to quantify the expenditure incurred upon the prosecution.
10. SHO, PS Gokalpuri has not filed any report regarding the expenses incurred on the investigation of the case. In these circumstances, I find myself handicapped to arrive at an amount which the convict should be ordered to pay to the State on account of expenses incurred by State in investigation and prosecution of this case.
11. The convict has been convicted for offence punishable u/s 6 POCSO Act as well as for offence punishable u/s 376 (2) (f) IPC. In view of section 42 of POCSO, if an offender is found guilty for offence punishable under this Act and under IPC, punishment which is greater in degree should be awarded. Accordingly, as punishment u/s 376 (2) IPC is greater in degree, convict is liable to be punished u/s 376 (2) (f) IPC.
12. The fact, that convict had committed sexual assault upon a FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 24 of 26 ASJ01/NE/KKD: 16.11.2017 child of 11 year of age, who was his daughter, makes the crime very serious. However, considering the fact that the convict has no previous criminal antecedents and the social and economic background of the convict, I find that this is not a case where maximum sentence should be awarded. Advance age of the convict is also a mitigating circumstance in his favour.
13. Considering the facts, I find that ends of justice would be served if convict Ashwani Kumar @ Avnish is sentenced as under: U/s 376 (2) (f) IPC
(a) Convict Ashwani Kumar @ Avnish is hereby sentenced to undergo rigorous imprisonment for a period of 10 years and,
(b) A fine of Rs.1,00,000/ is also imposed upon the convict. In default of payment of fine, he shall undergo simple imprisonment for a period of six months.
U/s 506 IPC
(a) Convict Ashwani Kumar @ Avnish is hereby sentenced to undergo rigorous imprisonment for a period of 01 year and,
(b) A fine of Rs.5,000/ is also imposed upon the convict. In default of payment of fine, he will undergo simple imprisonment for a period of one month.
14. Benefit of section 428 Cr.P.C shall be given to the convict.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 25 of 26 ASJ01/NE/KKD: 16.11.2017 All the sentences shall run concurrently.
15. The victim is entitled to a compensation u/s 357 Cr.P.C, where from the fine imposed upon the convict, compensation can be awarded to a person who had suffered any loss or injury because of that crime.
16. I accordingly order that u/s 357 (2) Cr.P.C, out of the fine of Rs.1,05,000/, Rs.52,500/ shall be paid to the victim as compensation.
17. Copy of judgment and order on sentence be given to the convict free of cost.
Announced in open court (Parveen Singh) today on 04.12.2017. Judge Special Court (POCSO Act) (This order contains 05 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 633/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokal Puri 26 of 26 ASJ01/NE/KKD: 16.11.2017