1 IN THE COURT OF MS. [ENTITY] : [ENTITY] ([CASE NUMBER]) [CASE NUMBER] [ENTITY] Vs. [ENTITY] FIR No. : 236/2010 U/s : 363/366/[SECTION]/377 [ACT] P.S. : Saraswati Vihar [ENTITY] Vs. [ENTITY] S/o Sh. [ENTITY] R/o D29, Mange Ram Park, Pooth Kalan, Delhi. Date of institution of case 04.10.2010 Date on which, judgment has been reserved 29.01.2014 Date of pronouncement of judgment - 29.01.2014 JUDGMENT :
1. Brief stated that case of the prosecution is that on 24.06.2010, at about 8.50 pm, information regarding one person having taken away an eight year old child from her house at WZ144, Shakurpur Village, Delhi, at about 4.00 pm, was received at P.S. Saraswati Vihar. The said information was reduced to writing vide DD no. 28A i.e. Ex. PW3/A and was handed over to PW16 SI [ENTITY] for inquiry. The PW16 SI [ENTITY] went to the informed place i.e. house no. WZ144, Shakur Pur Village and met complainant [ENTITY], who informed him that on that day i.e 24.06.2010, one person who told his name as [ENTITY] had come to her house and told her that he was working under Ladli Scheme and that she (complainant) would get clothes for her daughters and asked complainant to tell him name of her daughters. The complainant told said person name of her daughters. At about 1.30 pm, said [ENTITY] came again and took measurement of daughter of complainant and said that he would return back at about 4.00 pm. When complainant came home at about 2.00 pm to have lunch, she scolded her daughter as to why she had given her measurement to said [ENTITY] and told her not to take anything from [ENTITY] in future. The complainant further stated that [ENTITY] returned at about 4.00 pm and told her daughter that he needed her passport size photograph and when the daughter of complainant told her that she did not have such photograph, he told her to accompany her to Lawrance Road to the studio of a Government Photographer to have a photograph taken and on this pretext, [ENTITY] took victim child C with him and did not bring her back. The complainant expressed suspicion that the person named [ENTITY] had kidnapped her daughter C and prayed that action be taken against him.
On the basis of this complaint. case FIR No. 236/10 Ex. PW3/B was registered at PS: Ashok Vihar and investigation of the present case were marked to PW16 SI [ENTITY].
2. During the course of investigation, prosecutrix was found by her family members near Gufa Mandir at about 7:00 AM. The prosecutrix, who was produced by her parents at PS Ashok Vihar on 25.06.2010, told the IO that accused had taken her with him on pretext of getting her photograph taken and had committed wrong act with her. The victim C was got medically examined. In the meantime, the accused was apprehended by PW4 [ENTITY] and was produced before the IO. The accused was arrested in the present case and at that time, he revealed that his real name was [ENTITY] and not [ENTITY]. The accused was also got medically examined. Later on, the statement of the prosecutrix was got recorded u/[SECTION] [ACT] The case property was sent to FSL After completion of investigation and recording of statement of witnesses the charge sheet was prepared and filed in the court for trial.
3. Upon Committal of the case to the court of Sessions, charges for offence under sections [SECTION] of [ACT] were framed against the accused [ENTITY], however, the accused pleaded not guilty and claimed trial, and thereafter the case was fixed for prosecution evidence.
4. In order to prove its case, prosecution has examined 16 witnesses:
5. The PW5 [ENTITY] is the mother of the prosecutrix. She deposed that on 24.06.2010 at about 9 AM the accused came to her house and told that he had come to collect form of [ENTITY] in which clothes and money were being provided to a girl child. He asked the name of her daughters and obtained her signatures on some pages and that at that time the accused disclosed his name as [ENTITY]. The PW5 further deposed that thereafter she left for her job and that the accused also left the house. She then stated that in the noon, when she came back to her house for lunch, she was informed by her children that the accused had come at about 11:45 AM and taken their measurements for clothes. She was further informed that the accused would be coming again at 4:00 PM. The PW5 stated that she instructed her children not to provide any measurement and not to go with the accused and thereafter, she again left for her job. The PW5 further stated that when she came back at about 6:30 pm, her younger daughter told her that the accused had come again to the house and had taken away the victim/prosecutrix C with him on the pretext of taking her photograph. The PW5 searched for her daughter for about one or two hours and thereafter she informed the police and made complaint Ex. PW5/A, on the basis of which, the FIR was registered and a copy thereof was handed over to her.
She further stated that next day at about 7:00 AM she found Prosecutrix near Gufa Mandir and that she made inquiries from the victim C, who told her that the accused had taken her to a park, slapped her and had also committed rape upon her and that she took the victim C to PS Ashok Vihar at about 8.30 am. The PW5 then deposed that in the mean time, in the police station, the accused was also brought by PW4 [ENTITY] and that the prosecutrix identified him and that she (PW5) also identified him as the same person, who had visited her house for [ENTITY] and that thereafter, the accused was arrested vide arrest memo Ex. PW4/A and his personal search was also conducted. The PW5 further deposed about the medical examination of victim C at Bhagwan Mahavir Hospital and signing on the examination kit Ex. PW5/B. The PW5 identified the accused as well as the clothes of her daughter i.e. P1, in the court.
6. During her crossexamination, PW5 deposed that she used to leave her house at about 10.00 am for her work and returned back at about 1.30 pm for lunch and that she again left for work at 2.00 pm and came back to the house at about 6.00 pm. She further stated that on the date of the incident, accused had visited her house twice, once in her presence and second time, when she was not present in the house. Immediately, thereafter, the witness corrected herself by stating that accused had visited her house thrice, once in her presence and twice in her absence. She further deposed that when accused came to her house at about 9.00 am, she as well as both her daughter and son, were present in the house and that she was told by victim C that accused again came to their house at about 1.00 pm and then at about 4.00 pm in absence of PW5 and that when he came at about 1.00 am, both her daughters and son were present and when he came at about 4.00 pm, only her daughters were present. During her further crossexamination, PW5 termed it correct that when accused visited her house in her presence, he had told his name as [ENTITY]. She denied that she had come to know abut the actual name of accused, when he was detained in the PS by the police. The PW5 volunteered to state that she was told on the next day by one [ENTITY] that accused had told him some other name than [ENTITY]. The PW5 was also confronted with her complaint Ex. PW5/A and supplementary statements Ex. PW5/DA and Ex. PW5/DB qua her statement in the court, wherein she had told the police that accused had obtained her signatures on some papers.
7. The PW2, is the prosecutrix in the case, she is the star prosecution witness in the present case and her testimony shall be discussed at length in the following paragraphs of the judgment.
8. The PW4, [ENTITY], is a public witness, who had apprehended the accused and produced him before the police. He deposed that on 25.06.2010 the accused [ENTITY] came to his house and told him that he has come from [ENTITY] and asked him for measurements of his daughters. The PW4 further deposed that since he knew about the incident that had taken place a day earlier at home of [ENTITY] (father of PW2/victim child C), he became suspicious and raised an alarm and apprehended the accused with the help of 23 persons and thereafter, they all took the accused to PS Saraswati Vihar, where one [ENTITY] and her daughter/prosecutrix were found present and they both identified the accused as the same person, who had taken prosecutrix C with him. The PW4 [ENTITY] identified his signatures on arrest memo Ex. PW4/A and personal search of memo Ex. PW4/B of the accused. He also identified the accused in the court.
During his crossexamination, PW4 [ENTITY] stated that he was a tailor and used to work from his residence. He further deposed that the father of the prosecutrix was known to him and that there was a distance of about 30 houses between his house and the house of father of the prosecutrix. He further deposed that he came to know that some one had gone to the house of the prosecutrix to fill up the form of [ENTITY], because said person had firstly come to his house to fill up the form of [ENTITY], two days prior to the date of his arrest, and that he had not told about this fact to the police at that time, but told about it after accused went to the house of the prosecutrix. The PW4 also stated that he came to know about the incident from the neighbours, who were discussing about it in the evening on the same day. He further deposed that he had apprehended the accused with the help of 810 persons, who had gathered there and that police was called by [ENTITY], father of prosecutrix, who had also reached there. The PW4 then stated that accused had come in the gali and that he (PW4) reached there, when he heard noise and that he found accused in the custody of [ENTITY], father of the prosecutrix. He also stated that on the day of his arrest accused had not visited his home.
9. The PW10, Ms. [ENTITY], Teacher MCD Primary School, Srinagar OldI, Delhi, produced record from the school, wherein victim child/prosecutrix C was admitted in first standard/class vide entry at serial no. 6194, copy of which was proved by her as Ex. PW10/A. The PW10 further proved copy of admission form and affidavit of father of the victim child as Ex.PW10/B collectively and stated that as per the school record, the date of birth of child C is 11.02.2002.
10. The PW1, Dr. [ENTITY], deposed that on 25.06.2010, prosecutrix C was brought to Bhagwan Mahavir Hospital and that after carrying out her general physical examination vide MLC Ex. PW1/A, he referred the patient to gynecologist.
During his crossexamination, the PW1 admitted that there was some over writing in the column pertaining to date and hour of arrival of patient and also in column relating to FIR number, but he clarified that he had made his initials regarding the corrections. He further stated that he did not see any semen or blood stains on clothes of the prosecutrix.
11. The PW7, Dr. [ENTITY], SR Bhagwan Mahavir Hospital, Delhi, had come to depose in place of Dr. [ENTITY], who examined the prosecutrix C gynecologically and prepared the MLC no. 2318 and in her testimony, PW7 deposed that according to MLC, during examination, Dr. [ENTITY] found the hymen of the victim torn. She further proved the relevant portion in handwriting of Dr. [ENTITY] on MLC Ex. PW1/A and further stated that examination kit Ex. PW5/B had also been filled by Dr. [ENTITY] in her handwriting.
12. The PW12, Dr. [ENTITY], SR, Department of Surgery, Bhagwan Mahavir Hospital, Delhi, had examined the prosecutrix/victim child C on 30.06.2010 for purpose of opinion regarding sodomy and he deposed that after rectal examination, he found that there was no external injury and that no point tenderness was present. However he opined that sodomy cannot be ruled out. The PW12 proved his opinion on MLC Ex. PW12/A in this regard.
13. The PW15, Dr. [ENTITY] CMO, Bhagwan Mahavir Hospital, Delhi, examined the prosecutrix/victim child C on 30.06.2010 and prepared the MLC Ex .PW12/A. She deposed that after examination, she referred the patient back to S.R gynaecology and Surgery for review examination to rule out sodomy.
14. The PW13, Dr. [ENTITY], Medical Officer, Bhagwan Mahavir Hospital, Delhi deposed that on 25.06.2010 she examined the accused [ENTITY] and that on examination, she found multiple bruise present over left gluteal region, right upper thigh, swelling and bruise present below left eye, there was abrasion on right and left elbow. She further stated that on the basis of his external examination, she opined that there was nothing to suggest that patient was not capable of doing sexual intercourse. She proved the MLC of accused as MLC Ex. PW13/A and stated that regarding external genitalia and the capacity of patient for performing sexual intercourse, the accused was examined by Dr. [ENTITY], whose handwriting and signatures were also identified by Dr. [ENTITY] as f Dr. [ENTITY] had already left the hospital.
15. The PW3 ASI [ENTITY] was working as duty officer at PS Saraswati Vihar on 24.06.2010. He deposed that on that day, at about 8:50 PM, on receipt of information from PCR that some person had taken away a girl child from House no. WZ 144, he recorded DD no. 28A. He proved copy of said DD as Ex. PW3/A. He further stated that after recording the aforesaid DD, a copy of it, was given to PW16 PSI [ENTITY]. He further deposed that on the same day, at about 9.40 pm, on receipt of rukka from PW6 [ENTITY], he had registered the case FIR in the present case. He proved the computerized copy of FIR as Ex.PW3/B and endorsement made by him on rukka as Ex. PW3/C.
16. The PW16, SI [ENTITY], deposed that on 24.06.2010, at about 8:50 PM, on receipt of PCR call vide DD no. 28 A Ex. PW3/A regarding missing of a girl aged about 8 years from village Shakurpur, he along with PW6 [ENTITY] reached Shakurpur, where they met PW5 Smt. [ENTITY] (mother of the prosecutrix) and recorded her statement Ex. PW5/A. He further stated that on the basis of said statement, he made endorsement/rukka Ex. PW16/A, and handed it over to PW6 [ENTITY] for getting the FIR registered at PS and that after registration of FIR, PW6 [ENTITY] came back at the spot with the copy of FIR and original rukka and handed over the same to him. He further deposed that on 25.06.2010 PW5 [ENTITY] came along with prosecutrix to the PS and told him that her daughter was abducted by accused [ENTITY] and that some wrong act had been done by the accused with her daughter. He further stated that on this, he recorded the statement of prosecutrix and thereafter, he, along with PW9/lady home guard, took prosecutrix and her mother to Bhagwan Mahavir Hospital, Delhi, where medical examination of prosecutrix was conducted and that after medical examination, the concerned doctor handed over one box containing sexual assault collection kit and one sealed parcel containing undergarments of the prosecutrix to him, which were taken into possession by him vide seizure memo Ex.PW9/B. The PW16 further stated that he also took the booklet (examination kit for victim of sexual abuse) into his possession vide seizure memo Ex.PW9/A. He then stated that after medical examination, he came back to PS along with prosecutrix and her mother, where he met PW4 [ENTITY], who produced one person by the name of [ENTITY] before him and stated that [ENTITY] was the same person who had come to his house in the same manner as he had visited the house of prosecutrix and that the prosecutrix identified the accused as the same person who had kidnapped her and thereafter sexually assaulted her. He further deposed about arrest and personal search of the accused vide arrest memo Ex. PW4/A and personal search memo Ex. PW4/B, respectively, and about recording of disclosure statement of the accused vide Ex. PW6/A and preparing pointing out memo at the instance of accused vide Ex. PW8/A. The PW16 further deposed about getting the accused medically examined at Bhagwan Mahavir Hospital, Delhi and about seizure of exhibits taken from accused by concerned doctors, vide memo Ex. PW6/B. He further stated that on 29.06.2010 he moved an application Ex. PW16/B before the concerned court for recording statement of prosecutrix u/[SECTION] [ACT] and that after getting recorded the same, he obtained a copy of the said statement vide application Ex.PW16/C. He further stated that he had sent the exhibits to FSL, Rohini and proved the FSL results as Ex. PW16/D and PW16/E respectively.
During his crossexamination, the witness termed it correct that no document regarding [ENTITY] was found in possession of the accused.
17. The PW6 Head Constable [ENTITY] had joined the investigation of the present case with PW16 SI [ENTITY] on 24.06.2010 and deposed regarding the same.
18. The PW8, Ct. [ENTITY] had joined the investigation of the present case with PW16 SI [ENTITY] on 25.06.2010 and deposed regarding the same.
19. The PW9, [ENTITY] [ENTITY], deposed about joining the investigation of the present case with PW16 SI [ENTITY] on 25.06.2010. She stated that she got the prosecutrix C medically examined on that day.
20. The PW14 SI [ENTITY] is the second IO in the case and he deposed that on 26.07.2010, investigation of the present case was assigned to him and that on 27.08.2010, he got the exhibits of the case sent to FSL, Rohini through PW11 [ENTITY]. He further deposed that on 10.09.2010, he collected the certificate Ex. PW14/A regarding age of the prosecutrix from Nagar Nigam, Prathmik Balika Vidyalaya Sri Nagar, Old Pratham, Rohini and that after completion of investigation, he filed the charge sheet.
21. The PW11, [ENTITY], took the exhibits of the present case to FSL and deposited the same there and deposed about the same.
22. After closing of the prosecution evidence statement of accused [ENTITY] was recorded u/[SECTION] of [ACT], wherein he denied all the incriminating evidence put to him. He stated that he is innocent and he has been falsely implicated in the case by the prosecutrix as well as her parents. The accused declined to lead evidence in his defence.
23. Arguments have been addressed by Ld. Counsel for the accused as well as Ld. Addl. Public Prosecutor for the state.
24. Ld. Addl. PP has contended that the prosecutrix C as well as other public witness have fully supported the case of the prosecution and that prosecution has succeeded in proving its case against the accused beyond all reasonable doubt by examining the said witnesses. It is stated that in view of the statement of the prosecutrix, no other evidence is required and it is accordingly prayed that accused [ENTITY] be convicted u/s [SECTION] of [ACT].
25. On the other hand, Ld. counsel for the accused has contended that the accused is innocent and that he has nothing to do with the prosecutrix or the present case. He stated that the accused has been falsely implicated in place of some other person named [ENTITY], who is a relative of the prosecutrix. It is further stated that the medical evidence does not support findings of rape or unnatural offence. It was also argued that there are major contradictions in the testimonies of the witnesses and loopholes in the prosecution case and that the story setup by prosecution is false and concocted and same does not inspire confidence and that applicant/accused is entitled to be acquitted of all charges in the present case and it is prayed accordingly.
26. I have heard the arguments put forward by Ld. Addl. PP as well as Ld. Counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by prosecution in support of its case.
27. In the present case prosecutrix is the star witness of the prosecution. The prosecutrix is alleged to have been taken away by the accused on 24.06.2010 on the pretext of getting her photograph clicked and she was found on the next day near Gufa Mandir at about 7:00 AM and during the said period, accused took her to a park and raped her, committed sodomy with her and outraged her modesty. It is also alleged that the child victim was a minor girl aged about 8 years at the time of incident and had been kidnapped by the accused with intention to force her to have illicit intercourse with him.
28. So far as the age of the prosecutrix is concerned, it is not disputed that the prosecutrix was aged about 8 years and 41/2 months at the time of incident. Even otherwise, her date of birth has been proved to be 11.02.2002 by PW10 Ms. [ENTITY], Teacher, who produced record from first attended school i.e. MCD Primary School,. The issue which arises for consideration is whether, accused had kidnapped the prosecutrix out of the keeping of her lawful guardians/parents without their consent and had taken her first to a park and thereafter to his house and kept her there to force her or seduce her to have illicit intercourse with him and committed rape and/or other sexual acts upon her and/or criminally intimidated her. \
29. In order to prove that the prosecutrix was kidnapped by the accused, prosecution has examined Smt. [ENTITY] (mother of the prosecutrix) as PW5. She deposed that on 24.06.2010 at about 9:00 AM the accused came to her house and told that he had come to collect the form of [ENTITY]. He asked for names of her daughter and got some papers signed from her. Thereafter the accused again came at about 11:45 AM and took measurement of her daughters. At about 4:00 PM accused came to their house and yet again took away the prosecutrix with him on the pretext of getting her photograph clicked, but did not return back. . Though the family mem bers tried to search for the prosecutrix/victim child C but she could not be traced and thus, PW5 filed complaint Ex.PW5/A. She further deposed that on 25.06.2010 she found the prosecutrix near Gufa Mandir at about 7:00 AM and that she took the prosecutrix to PS Ashok Vihar at about 8.30 am and that at that time, one person was brought by PW4 [ENTITY], who was identified by the prosecutrix as well as PW5 [ENTITY], as the same person who had visited their house for [ENTITY] and had taken away the prosecutrix in absence of PW5 to sexually abuse her.
30. The Ld. counsel for the accused has contended that accused has been falsely implicated in the case and that the actual culprit was one [ENTITY], who is a relative of PW5 and that in order to save the honour of their family, name of said [ENTITY] was deleted and in his place, accused was planted in the case. The contention of ld. Counsel for the applicant/accused cannot be sustained, since PW5 has clearly stated that when accused came to their house, he has disclosed his name as "[ENTITY]". She has denied that accused was not the same person, who had told his name [ENTITY] and had come to their house on the fateful day. Even otherwise, the accused has also been identified by the prosecutrix/victim child C as the same per son, who had come to their house on 24.06.2010 and taken her with him, when ex amined before the court as PW2.
31. The prosecutrix appeared before the court for the first time on 29.06.2010, when her statement u/[SECTION] [ACT] recorded. In the said statement, she gave details of the manner, in which, the accused had taken her away from her house on the pretext of getting her photograph taken for a Ladli Yozna and had subsequently, sexually abused her. The relevant portion of her statement is reproduced as under :
"Ek aadmi hamare ghar pe aaya aur bola ki photo khichwane chalo. Mere ghar par mera bada bhai aur main khud thi. Mere papa auto cha late hain ve subah ghar se kaam ke liye chale gaye the. Meri maa ([ENTITY]) sabzi lene ke liye gayi thi mere bhai ([ENTITY]) ne use bola ki meri behan kahin nahi jayegi. Phir waha aadmi bola ki main isko 5 minute me photo khichwa kar chhod dunga. Phir waha mujhe bus me lekar chala gaya. Phir waha mujhe bahut door le gaya jahan par pehle main kabhi nahi gayi thi. Phir waha mujhe park me lekar aaya. Phir waha mujhe apne ghar par le gaya phir usne mere kapde jabardasti utare. Phir waha mere saath ganda kaam karne laga. Phir main chillayi to waha bola ki agar chillayegi to yahin par maar doonga. Phir usne mera mooh ko roomal se baandh diya. Phir waha mere saath peeche se galat kaam karne laga. Phir usne mere peshab karne wali jagah ungli bhi daali. Phir subah tak waha meri dehi par sota raha. Jab subah maine usse kapde maange to usne mujhe maara. Phir waha mujhe mere ghar ke paas bus se lekar aaya aur mujhe bus se dhakel kar bhaag gaya phir usne isse pehle bola ki agar kisi ko batayegi to tujhe utha kar aur le jaakar maar doonga."
32. The prosecutrix appeared before the court on 08.11.2010 for her statement. At that time, Ld. Predecessor put certain preliminary questions to the victim child C to as certain her capability to understand the questions and to give rational answers and after being so satisfied with her capacity and capability to depose as a witness, her statement was recorded as PW2, wherein, she deposed as under :
"On the 24th day about one month before, again said, it was summer of this year. I was present in my house with my brother [ENTITY]. At about 2.00 p.m., one Uncle came to our house. I cannot identify the said person. I cannot tell the approximate age of the said person. (At this stage, the witness has seen the accused present in the court today and has stated that he is the same person, who had come in her house on that day). Accused told us that he had come from Ladli Scheme. Accused told that clothes and money will be given under the Ladli Scheme. My mother was washing clothes downstairs. Ac cused obtained signatures of my mother on some papers and also demanded photographs, but my mother refused as no photograph was available. Thereafter, accused left our house.
My mother went to purchase vegetables. At about 4.00 p.m., accused again came to our house and asked me to accompany him to take my photograph. My brother asked the accused to take photo graph in the house itself, but accused scolded my brother. My broth er is aged about 10 years. Again accused told that he will arrange the photograph nearby the house. Thereafter, accused took me and made me to sit in the bus with him. Thereafter, after sometime, ac cused boarded me in another bus with him. Accused took me to a park. I started weeping because the place, where accused had tak en me was unknown to me. It was night time. Accused asked me to remove my clothes, but I refused. Then accused slapped me. There after, accused laid down on my side. Accused also removed my clothes. Thereafter, the accused touched my private part. Accused also threatened me, if I will disclose the same to anyone, then he will kill me. Then, I put on my clothes and found accused sleeping there. Thereafter, accused left me at Gufa Mandir at about 7.00 a.m From the Gufa Mandir, I came to my house.
I told all the facts to my mother and also about the acts, which were done by the accused with me. Thereafter, we went to police. Police made inquiries from me. Thereafter, I was sent for my medical examination at Bhagwan Mahair Hospital. Again, I was brought back to the PS. Then I saw accused present in the court today, in the PS and identified him as the same person "
33. The PW2 further deposed that her statement Ex. PW2/A was recorded by one Magistrate and that she had told all the facts to the Magistrate which were done by the accused with her. She also remembered that accused has put his finger in her vagina and that when she started weeping he gagged her mouth.
34. Considering the tender age of witness, Ld. Predecessor also allowed some leading questions to be put to the witness, wherein the PW2/prosecutrix deposed that in the house accused removed her clothes and started committing wrong act with her and that when she raised noise, accused threatened to kill her and that accused gagged her mouth with handkerchief and committed wrong act with her from be hind. Accused also slept over her in the night and on her demanding her clothes, he gave beatings to the prosecutrix.
35. During her crossexamination PW2 denied the suggestion that she had deposed in the court at the instance of her mother and affirmed the fact that she had deposed on her own. She termed it correct that neither she nor her brother raised any alarm, when accused took her from her house and that she further did not raise alarm on the way. She clarified stating that she had not raised alarm as the accused had as sured her that after getting her photograph taken he would send her back to her house, and that later also, she did not raise alarm as accused told her nearby pho tographer was not good and that he would get her photograph taken at some other place. She also stated that it was dark when accused took her to the park and that no one was present in the park at that time and that she did not see any persons coming and going in the park. She further stated that she stayed in the park with the accused for some time and when she started weeping, accused took her to his house and that no one else was present in his house.
36. From the deposition of PW5 [ENTITY] i.e. mother of the prosecutrix and PW2 i.e. the prosecutrix and Ex. PW2/A i.e. the statement of the prosecutrix u/[SECTION] [ACT], the prosecution has succeeded in proving the allegations against the accused and the manner in which the accused induced the prosecutrix to go with him on the pretext of getting the photograph clicked, and thereafter sexually abused her, stand established. No doubt that there are some discrepancies in statements of PW2 i.e. victim child C and PW5 [ENTITY], mother of the prosecutrix, regarding the exact time of visits made by the accused to the house of the victim child and the time when the victim child was found by PW5. There are also some discrepancies in the statement of the victim child as PW2 and her statement u/[SECTION] [ACT] i.e. Ex. PW2/A. However, these discrepancies are of minor nature and do not tarnish the reliability and genuineness of the testimony of PW2 Victim child C and PW5 Smt. [ENTITY] in any manner. Even otherwise in the case of [ENTITY] of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that : "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence. It must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may took for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
37. Even otherwise, the testimony of PW2 i.e. victim child C is corroborated by the medical evidence on record. In this regard, testimony of PW7 Dr. [ENTITY] is very relevant. This witness proved the MLC of victim C as Ex. PW1/A, wherein Dr. [ENTITY], who had examined victim C had given observation "no injury noted over inner thigh/labia ; hymen torn with tags seen circumferentic little finger could be inserted". Similar observations were made by Dr. [ENTITY] in Ex. PW5/B i.e. examination kit for victim of sexual abuse. Further, PW12 Dr. [ENTITY], who examined the victim for purpose of opinion regarding sodomy also proved the MLC of his examination of the victim C as Ex. PW12/A and stated that "sodomy cannot be ruled out" . The FSL result Ex. PW16/D has also corroborated the ver sion of victim child as Ex. 1a i.e. baby's underwear tested positive for human se men. It is noteworthy that a specific question was put to the accused in his state ment u/[SECTION] [ACT] regarding the findings of human semen on Ex. 1a in FSL result Ex. PW16/D and in response to the said question, the accused stated "It is a matter of record". He has not disputed the findings in the FSL result, nor offered any ex planation for the same. In a judgment titled as "Munish Mubar vs. [ENTITY] of Haryana" 2012 X AD (S.C.) 636, the Hon'ble Supreme Court held that it is the duty of the accused to furnish some explanation to the incriminating material put to him, in his statement u/[SECTION] [ACT], failing which, an adverse inference is liable to be drawn against the accused regarding the correctness of the said incriminating mate rial.
38. Ld. Counsel for the accused has contended that the testimony of victim C cannot be relied and that she is a tutored witness, who has deposed as per instructions of her parents. It is true that the statement of the child witness is to be scrutinized with great care and caution, yet the testimony of victim child cannot be disbelieved mere ly on the ground of tender age and possibility of tutoring of a child witnesses, spe cially when the same is supported by the other material placed on record by the prosecution.
39. In this regard it has been held by Hon'ble Supreme Court in case titled as [ENTITY] of UP Vs. Krishan Master, AIR 2010 SC 3071, that : "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 care fully 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 confi dence of the Court, his deposition does not require any corrob oration 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 wit ness wanted to implicate the accused falsely in a case of a se rious nature."
40. In the Nutshell of the foregoing discussion, the prosecution has succeeded in proving that accused [ENTITY] cheated [ENTITY] by pretending to be a pub lic servant working in Ladli Yozna, which was working for welfare of the girl child and under it, clothes were provided to the children free of cost and that on this pretext, he took the measurement of the prosecutrix and later on, took the prosecutrix out of keeping of her guardians i.e. her parents, without their consent, on pretext of taking her passport size photographs from a Govt. Studio. The prosecution has further succeeded that the accused kidnapped the prosecutrix, a minor aged about 8 years knowing it to be likely that she may be so forced/seduced for illicit intercourse with you and further committed rape and carnal intercourse against the order of nature, upon the prosecutrix. The prosecution has also succeeded in proving that accused threatened the prosecutrix that he would kill her, gagged her mouth with a handker chief and again threatened to kill her on the next day. Accordingly I hold accused [ENTITY] guilt for the offences u/s [SECTION] of [ACT] and he is convicted accordingly.
(Announced in the open Court ) ([ENTITY]) (Today on 29.01.2014) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi IN THE COURT OF MS. [ENTITY] : [ENTITY] ([CASE NUMBER]) [CASE NUMBER] [ENTITY] Vs. [ENTITY] U/s : 363/366/[SECTION]/377 [ACT] P.S. : Saraswati Vihar [ENTITY] Vs. [ENTITY] S/o Sh. [ENTITY] 15.02.2014 ORDER ON THE POINT OF SENTENCE In the present case, the convict - [ENTITY] has been convicted u/s [SECTION] Part II [ACT].
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for [ENTITY] and Ld. defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict [ENTITY] firstly cheated [ENTITY], mother of the victim child, by pretending to be a public servant working in Ladli Yozna, which was working for welfare of the girl child and under it, clothes were provided to the children free of cost and that on this pretext, he took the measurement of the prosecutrix and later on, took the prosecutrix, a minor girl aged about 8 years, out of keeping of her guardians i.e. her parents, without their consent, on pretext of taking her passport size photographs from a Govt. Studio. It is also stated that he kidnapped the prosecutrix/victim C knowing it to be likely that she would be forced/seduced for illicit intercourse with him and further committed rape and carnal intercourse against the order of nature, upon the prosecutrix. He also criminally intimated her and threatened her and that in view of the serious nature of offences, the convict does not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Defense counsel that the convict [ENTITY] is a married man with wife and two minor daughters aged abut 6 years and 31/2 years, to look after. He also has responsibility of his old parents . It is further submitted that convict belongs to a low strata of society and he remained on bail in this case without misusing the liberty of bail and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict [ENTITY] has been convicted for committing the offence punishable u/s- [SECTION] of [ACT]. It stands proved that the convict had cheated [ENTITY], mother of the victim child, by pretending to be a public servant, implementing the Govt. Scheme, i.e. the Ladli Yozna, working for welfare of the girl child. It also stands proved that the convict represented that under the said scheme clothes were being provided to the children free of cost and on this pretext, he took the prosecutrix, a minor girl aged about 8 years, out of keeping of her guardians i.e. her parents, without their consent, to get her passport size photographs taken from a Govt. Studio. It further stands proved that the convict kidnapped the prosecutrix, a minor aged about 8 years knowing it to be likely that she may be so forced/seduced for illicit intercourse with him and further committed rape and carnal intercourse against the order of nature, upon the prosecutrix. It further stands proved that during this period, the convict repeatedly threatened the prosecutrix that he would kill her and gagged her mouth with a handkerchief. Though, ld. Counsel for the convict has prayed for a lenient view on the ground that convict has two minor daughters, it is brought out that convict already stands convicted in a case of similar nature by Gurgaon Court. In fact, the convict was released on bail in the present case vide order dated 01.12.2010 and during the period that he was on bail, a case FIR no. 7 dated 14.01.2012 u/s [SECTION] [ACT], PS Udyog Vihar, Gurgaon, was registered against him, wherein he has been sentences for the offences u/s [SECTION] [ACT], vide order dated 28.01.2013, as is apparent from the details received from the Superintendent of Prison, Distt. Prison, Gurgaon. It, thus, appears that the fact that the convict is a father of two minor daughters did not deter him from repeating a sexual offence with a minor girl, and an offence of similar nature as in the present case, after being released on bail, in this case. In these circumstances, the acts of the convict can only be concluded to be most cruel and gruesome considering the submissions that he has two minor daughters of his own. As a father having daughters himself, he ought to have refrained from such a conduct, which has spoiled entire life of a young girl child, and thus, no leniency is called for in the matter. I hereby award the following sentence to convict [ENTITY] :
(i) For offence u/[SECTION] [ACT], the convict is sentenced to rigorous imprisonment of three years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
(ii) For offence u/[SECTION] [ACT], the convict is sentenced to rigorous imprisonment of five years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
(iii) For offence u/[SECTION] [ACT], the convict is sentenced to rigorous imprisonment of seven years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
(iv) For offence u/[SECTION] [ACT], the convict is sentenced to life imprisonment along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for one year.
(v) For offence u/[SECTION] [ACT], the convict is sentenced to rigorous imprisonment of seven years along with a fine to the tune of Rs. 2,000/, in default of payment of fine, to further undergo simple imprisonment for three months.
(vi) For offence u/[SECTION] [ACT], the convict is sentenced to rigorous imprisonment of three years along with a fine to the tune of Rs. 1,000/, in default of payment of fine, to further undergo simple imprisonment for one month.
The sentences u/[SECTION] and [SECTION] shall run, one after another and sentences awarded under other Sections shall run concurrently.
Benefit u/[SECTION] [ACT] be also given to the convict.
6. Coming now to the aspect of compensation to the 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 [SECTION] of the [ACT]. In a case titled as [PRECEDENT], 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.
7. 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 [PRECEDENT], 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 [ACT]. [SECTION] enables the [ENTITY] to make special provisions inter alia for children and [SECTION] 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 [SECTION] provide that the [ENTITY] 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 goaloriented perambulatory introduction."
8. Therefore, in order to provide Restorative and Compensatory Justice to the victim i.e prosecutrix, I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant compensation to the tune of Rs. 2,00,000/ (Rs. Two lac only) to the victim child. 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. It is further directed that compensation amount, which is kept in secured form of FDR, shall not be released to any one, until the child attains the age of majority. In the event, the money is required for welfare of the child prior to child attaining the age of majority, the parents and/or guardian of the child may approach the court for released of the amount by moving appropriate application, in this regard. Consequently, the concerned bank, which issues the FDR, in the name of the child, shall not release the FDR amount to any one, till the child attains the age of majority, except by the order of this court.
9. A copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi, Chief Secretary, GNCT of Delhi, Principal Secretary (Social Welfare), GNCT of Delhi and Director, Department of Social Welfare (Women and Child Development), GNCT of Delhi, for information and necessary action under intimation to this Court.
10. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that 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.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) ([ENTITY]) (Court on 15.02.2014) Addl. Session Judge (NorthWest)01 Rohini/Delhi