[CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE01: (NORTHWEST): ROHINI DISTRICT COURTS: NEW DELHI ([CASE NUMBER]) [CASE NUMBER] [ENTITY] V/s [ENTITY] FIR No. : 526/13 U/[SECTION] [ACT] and 10 of [ACT] P.S. : Shalimar Bagh [ENTITY] V/s [ENTITY] S/o [ENTITY] R/o House no. 537, Gali no. 5, Ambedkar Nagar, Haider Pur, Delhi. Date of institution of case : 06.01.2014 Date of arguments : 23.05.2015 Date of pronouncement of judgment : 05.06.2015 J U D G M E N T:
BRIEF FACTS OF THE CASE:
1. The facts of the case, as borne out from the record are that on 05.12.2013, at about 9.55 pm, an information was received in police station [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Shalimar Bagh, through wireless operator, with regard to molestation (chedchad), of a five year old girl at house no. 542, Gali no. 5, Haiderpur, Delhi. The said information was reduced into writing as DD no. 41A. The same was entrusted for investigation to ASI [ENTITY], who along with Ct. [ENTITY] and [ENTITY] went to the spot and found the caller outside House no. 537, Gali no. 5, Haiderper Pur. After making inquiry from the caller, ASI [ENTITY] called up the duty officer in the police station, for sending a lady officer at the spot. Accordingly, W/SI [ENTITY] was sent to the spot, who recorded the statement of child victim S, aged about 10 years, who in her statement stated that on that day, at about 5.00 pm, she had gone to the top floor (fourth floor) to collect the dried clothes. The accused [ENTITY], who was residing in a room at top floor, caught hold of her from back and fondled with her cheeks and breasts. The child victim raised alarm and with a view to set herself free from the clutches of the accused, she gave bite on the hand of the accused and came back to her house, which was at the first floor of the said building. She narrated the entire episode to her mother. Thereafter, in the night, when the father of the child victim came back at home, the entire incident was brought to his notice as well. At about 10.00 pm, a call to the police at number 100 was made. On the basis of aforesaid statement, the case FIR in the matter was registered and the further investigation in the matter was entrusted to SI [ENTITY] [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Kumar. In the meantime, W/SI [ENTITY] and [ENTITY] took the child victim to BJRM Hospital. At the spot, SI [ENTITY] prepared site plan and recorded supplementary statement of the child victim with regard to identity of the accused.
The accused was arrested in the matter and his medical examination was also got conducted. The statement of the child victim u/[SECTION] [ACT] was got recorded. The child victim was also produced before DLSA and CWC. After completion of the investigation, the charge sheet in the matter was prepared and filed.
2. After filing of the chargesheet in the matter, copy thereof along with documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 18.01.2014, charges u/[SECTION] of [ACT] (hereinafter referred to as the "Act"), punishable U/[SECTION] of Act and alternatively u/[SECTION] [ACT] and u/[SECTION] [ACT] 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 a[SECTION] witnesses, whereafter the PE in the matter was closed and statement of accused u/[SECTION] [ACT] was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the case by the child victim at [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 the instance of her mother, because of a previous quarrel. The accused wished to lead evidence in his defence, but later on, he closed defence evidence without examining any witness.
4. I have heard arguments advanced at bar by Ld.Addl.PP on behalf of [ENTITY] and Shri [ENTITY], learned defence 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 and her family members (b) Medical evidence (c) Formal witness (d) Evidence of police officials of investigation. Child victim and her family members
5. The child victim S, a minor girl aged about 10 years, was examined as PW7 and relevant portion of her testimony is as under : Q. Batao beta kya hua tha ?
Ans. 5 tarikh ki baat hai, shayad April me, mein chhat [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 par 5 baje shaam ko kapade uttarne gayi thi.
Q. Phir kya hua ? Ans. Waha par [ENTITY] aa gaya aur usne mera hath pakad liya. Q. [ENTITY] se aa gaya ? Ans. Woh wahi chhat par bane huye kamre me rahta tha. Q. Beta kya [ENTITY] aaj Court me hai ? Ans. Ha. (The witness identified the accused through the design in the wooden partition) Q. Phir kya hua ? Ans. Woh mujhe apne kamre ki tarif ghassit kar le jane
laga aur mere gaal (cheeks) pakade. Gardan ke niche bhi hath lagaya. Maine uske hath me kaat liya aur mein niche bhag aayi.
Q. Phir apne kya kiya ? Ans. Mein sab baat apni mummy ko bata di. Q. Phir mummy ne kya kiya ? Ans. Meri mummy ne 100 number par phone kar diya raat ko 10 baje. Q. Kya mummy ne [ENTITY] ko kuch nahi kaha ? [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Ans. Mummy ne [ENTITY] ko dantt lagai thi. Q. Phir kya hua ? Ans. Police aayi aur maine police ko sab bata diya jo police ne likh liya.
The witness identified her signatures on her complaint Ex.PW4/A and on the copy of statement u/[SECTION] [ACT], Ex.PW7/A. PW7 was crossexamined by learned defence counsel and during the said crossexamination, the witness stated as under : Q. Jis samay ki baat hai kya apki mummy uss samay ghar par thi ?
Ans. Ha. Q. Kya aap chhat par roj khelne jate the ? Ans. [ENTITY], mein kabhi kabhi khelne jati thi. Q. Kya ghatna se 10 din pehle aap aur bachho ke sath chhat par khelne gayi thi ? Ans. Ha. [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Q. Kya jab aap khelne gayi tab accused [ENTITY] ko pani se dho (clean) raha tha ? Ans. [ENTITY]. Q. Kya yeh sahi hai ki kyunki accused [ENTITY]
dho raha tha / saaf kar raha tha, usne aap bachho ko waha par khelne se mana kiya tha aur danta bhi tha ?
Ans. [ENTITY] yeh galat hai. Q. Kya yeh sahi hai ki [ENTITY] kaam par jata tha ? Ans. Ha. Q. Kya apko pata hai ki woh kaam par kab jata tha aur kab aata tha ? Ans. [ENTITY]. Q. Kya yeh sahi hai ki ghatnawale din accused ghar par nahi tha aur woh 10 baje raat ko ghar aaya tha ? Ans. Yeh galat hai. Q. Kya apne apne pehle bayano me (statement u/[SECTION] [ACT]) me kissi [ENTITY] ? Ans. [ENTITY] yeh galat hai. Q. Kya yeh sahi hai ki aaj aap apne mummy papa ke [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 kehne par yeh sab bata rahe ho ? Ans. [ENTITY] mere sath yeh hua tha.
6. PW8, Smt. [ENTITY], is the mother of the child victim and she deposed that at the time of incident, she was residing at house No.537, Gali No.5, Haiderpur, Delhi, as tenant with her family and on 05.12.2013, on her returning home from her place of work, her daughter/child victim S told her that she (child victim) had gone to the roof of their house to bring back the dry clothes and at that time, accused [ENTITY], who was residing in a room constructed on the roof, caught hold of her from her hand and was trying to drag her inside his room and he also touched her cheeks and breasts and for saving herself, she gave a tooth bite to the accused on his hand and ran away from there. She further deposed that on coming to know about the incident from her daughter, she went upstairs and questioned accused about his conduct with her daughter, but the accused did not admit his guilt and behaved in very arrogant manner and then, she called the police at 100 number. She further deposed about arrival of the police, about recording the statement Ex. PW4/A of her daughter in her presence and about her medical examination vide MLC Ex. PW8/A, on which, she refused for internal gynecological examination of her daughter. She also deposed about recording of her daughter's statement u/s. [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 164 [ACT], Ex.PW7/A. She further deposed that accused was arrested in his presence by the police vide arrest memo Ex.PW3/A. During crossexamination by learned defence counsel, the witness stated that her daughter S did not go to roof to play with other children. The witness denied that 10 days prior to incident, her daughter S had gone to the roof to play with other children or at that time accused was cleaning the roof with water or he had told child victim and other children to go away and had also scolded them. The witness admitted that incident had taken place at around 5:00 PM and she had made complaint to police at about 10:00 PM. She volunteered to state that she had tried to make the accused understand and then scolded him and when he did not listen, she made complaint to the police.
Medical evidence :
7. PW5 Dr. [ENTITY] proved the MLC of the child victim as Ex. PW5/A and deposed that said patient was examined by Dr. [ENTITY], the then JR, under his supervision and thereafter, the patient was referred to [ENTITY]. He further deposed that as per the notings made by Dr. [ENTITY], SR [ENTITY], mother of the child victim had refused for gynecological examination of her daughter. [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Evidence of Formal witness
8. PW1, Sh. [ENTITY], is the owner of the house bearing no. 537, Gali No. 5, Haider Pur, Delhi and he deposed that accused [ENTITY] was his tenant and was residing in a room situated on the top floor of his said house and [ENTITY] (mother of child victim) was residing on rent in a room situated on first floor of his said house. He further deposed that after the incident, [ENTITY] had vacated said tenanted room.
9. PW2, [ENTITY] was lying posted as Duty Officer at the relevant time in PS Shalimar Bagh and he has proved the computerized copy of FIR Ex. PW2/A in the matter
10. PW9, Ms. [ENTITY], Ld. MM in her evidence has proved the statement of child victim recorded by him U/[SECTION] [ACT] as Ex. PW9/B. Evidence of police officials of investigation.
11. PW3, W/[ENTITY] joined the investigation of the present case with PW6 ASI [ENTITY] and deposed that on 05.12.2013, at about 10.00 pm, on receipt [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 of a call by PW6, she along with PW6 ASI [ENTITY] and Ct. [ENTITY] reached at the spot i.e. House No. 537, Gali no. 5, Ambedkar Nagar, Haider Pur, Delhi and on finding the matter regarding teasing of a girl, PW4 SI [ENTITY] was called at the spot. She further deposed that PW4 SI [ENTITY] recorded the statement of the child victim, prepared rukka and got the FIR in the present case registered. This witness also accompanied PW4 to BJRM Hospital for medical examination of the child victim and also joined investigation with PW10 SI [ENTITY] at the time of arrest of the accused vide arrest memo Ex. PW3/A.
12. PW4 SI [ENTITY], deposed that on the night intervening 05/06.12.2013, on receipt of call from duty officer, she reached at House no. 537, Gali no. 5, Khadar, Ambedkar Nagar, Haiderpur, Delhi, where PW6 ASI [ENTITY], PW3 [ENTITY][ENTITY], PW8 Smt. [ENTITY] and child victim were also present. She further deposed that she recorded the statement Ex. PW4/A of the child victim in the presence of her mother, made her endorsement thereupon, prepared rukka Ex. PW4/B and got the FIR in the present case registered through Ct. [ENTITY]. She further deposed about medical examination of child victim and about arrest of the accused.
[CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015
13. PW6 ASI [ENTITY], deposed that on 05.12.2013, on receipt of DD no. 41A, he along with Ct. [ENTITY] and PW3 Lady [ENTITY] reached at the spot i.e. House no. 537, Gali no. 5, Ambedkar Nagar, Delhi, where they met the child victim and her mother [ENTITY] and on inquiry, he came to know that some chedchad had been done with the child victim by one boy. He further deposed about reaching of W/SI [ENTITY] on the spot and registration of the present case on the rukka prepared by W/SI [ENTITY].
During crossexamination by learned defence counsel, the witness termed it correct that House number in the said DD was mentioned as 542, however, he did not visit the said house as caller met him outside house no. 537.
14. PW10, SI [ENTITY] is the investigating officer of the case and he deposed about the investigation conducted by him in the matter. He deposed that on the night intervening of 5/6.12.2013, at about 2:15/2:30 am, Ct. [ENTITY] handed over the original rukka Ex.PW4/B, computerized copy of FIR Ex.PW10/A and true copy of D.D. No41 A Ex.PW10/B, to him for investigation and thereafter, he along with Ct. [ENTITY] reached at the spot i.e. House no. 537, Gali No5, 5th floor, Ambedkar Nagar, Haidarpur, Shalimar Bagh, Delhi and after some time, PW4 W/SI [ENTITY] and PW3 [ENTITY][ENTITY] came back from the hospital [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 along with the child victim and her mother at the spot and PW4 SI [ENTITY] had handed over the MLC of child victim to her. He further deposed that after making inquiry from child victim, he prepared site plan Ex. PW10/C at the instance of child victim. He further deposed about arrest of the accused from gali no. 5 in front of House No534 vide arrest memo Ex.PW3/A, about personal search of the accused vide memo Ex.PW10/D and proved the disclosure statement Ex.PW10/E made by the accused and his MLC as Ex. PW10/F. He further deposed about getting the statement Ex. PW9/B of the child victim recorded u/[SECTION] [ACT], vide his application Ex. PW9/A and obtaining the proceedings vide his application Ex.PW9/D. During crossexamination by learned defence counsel, PW10 termed it correct that child victim had taken name of [ENTITY] in her statement u/[SECTION] [ACT] and on his clarification, child victim told him that she knew accused by the name of [ENTITY] and that his correct name i.e. [ENTITY], had been told to her by her mother later on.
15. The learned Addl. PP has very vehemently argued that the child victim was aged about 10 years at the time of incident and her age has not been disputed by the defence. The prosecution has proved through the evidence of child victim [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 PW7, her mother PW8 and the owner of the building PW1 about the commission of aggravated sexual assault upon the child victim by the accused, whereas the accused has miserably failed in proving his defence in terms of [SECTION] of the Act.
16. Per contra, the learned defence counsel has raised following arguments :
(a) that the accused has been falsely implicated in the matter, his identity has not been established properly
(b) that there is unexplained delay in registration of FIR in the matter ;
(c) the medical evidence has not been properly proved
(d) that the prosecution rests upon the testimony of interested witnesses and there is no independent corroboration of the testimonies of the PW7 and PW8 False implication of the accused
17. It has been very vehemently argued by the learned defence counsel that the first document, through which the matter was reported to the police, is DD no. 41 A, (Ex. PW10/B). In the said document, the information was with regard to [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 chedchad with a five year old girl child at House no. 542. Neither the house number nor the age of child victim was stated correctly in the said information.
18. It is next contended that the child victim in her statement recorded u/[SECTION] [ACT], Ex. PW7/A, has named the person, who had committed sexual assault upon her as [ENTITY], whereas the name of the accused is [ENTITY].
19. It is further contended that the accused has been falsely implicated in this case, as he was not present at the time of alleged commission of offence.
20. A perusal of the evidence of PW10 SI [ENTITY] and PW6 ASI [ENTITY], reveals that pursuant to receipt of Ex. PW10/B, when he reached at the spot, he found the caller standing in front of house no. 537. The identity of the caller however, has not come on record. It is quite possible that the caller might have heard or assessed the age of child victim as 5 years and he might have given wrong house number in the call. But the fact of the matter, is that the child victim in her statement Ex. PW4/A, Ex. PW9/B and her evidence has categorically deposed that the accused was residing in a room at the fourth floor of their building. This fact has also been corroborated by the land owner PW1 Sh. [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 [ENTITY]. It is not the stand of the accused that he was not residing in a room at fourth floor in house no. 537, wherein at the first floor, the family of the child victim was residing. In her initial statement Ex. PW4/A, the child victim did not tell the name of the accused and the name of the accused was told by her to be [ENTITY] in her statement recorded u/[SECTION] [ACT] Considering the age of the child victim and the fact that the word [ENTITY] and [ENTITY] are some what phonetically similar, the child victim might have picked wrong name in her mind. It is not the stand of the accused that he was known to the child victim and her family. The mother of the child victim PW8 has categorically deposed that she had not even noticed the accused to be resident of top floor of the building prior to the date of incident. The identity of the accused has been duly proved by landlord PW1 in addition to the child victim and her mother. The other defence, which has been taken in the matter by the accused is that he has been falsely implicated in the matter on account of a previous quarrel between him and PW8. As per the scheme of Act, the accused is required to prove his defence by leading positive evidence. The accused has not lead any positive evidence with regard to his defence.
Unexplained delay in recording the FIR
21. I find no substance in the argument of the learned defence counsel that [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 there is an unexplained delay in reporting the matter to the police, as the alleged incident had taken place at about 5.00 pm and the matter was reported to the police at 9.55 pm. It is evident from the evidence of PW8 that after coming to know of the incident from child victim, she had gone to the top floor and confronted the accused and when the accused even misbehaved with her that she thought of reporting the matter to the police. In this regard, it was held by Hon'ble Supreme Court in the case of Ramdas & Ors. Vs. [ENTITY] of Maharashtra, (2007) 2 SCC 170, as under : "24. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. [ENTITY] of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
22. Now adverting to the facts of the present case, PW8 Smt. [ENTITY], mother of the child victim has specifically stated that on her return from the work, [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 her daughter told her about the acts of the accused and on hearing this, she immediately went upstairs and confronted the accused, but he was adamant and that is why, she made a call to the police at 100 number and as such, the delay in the matter, has been explained.
Age of the child victim
23. Now the issue which arises for consideration is that whether the victim S was less than 12 years old as on the date of commission of the offence. In the present case, the age of the child victim S has not been disputed by the accused. Even otherwise, in order to prove that the child victim was less than 12 years of age as on the date of offence, the prosecution has relied upon a certificate (though not proved in evidence) issued by Principal of Nigam Pratibha Vidyalaya Girls School, Haiderpur, Delhi, wherein date of birth of the child victim was mentioned as 20.10.2002. No tampering or manipulation has been seen on the said certificate. Thus, from the certificate also, it is evident that child victim 'S' was a child aged about 11 years at the time of commission of offence.
Medical evidence whether properly proved or not
24. PW5 Dr. [ENTITY] has proved the MLC of only child victim and [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 inadvertently, he did not depose about the MLC of the accused, which was very well prepared by him only. The said MLC has been proved by IO SI [ENTITY]. The learned defence counsel has argued that the MLC of the accused cannot be looked into as the same has not been proved by the concerned doctor. It is evident from record that the accused had not disputed his medical examination by the police. Two witnesses i.e. PW3 W/[ENTITY] and PW10 SI [ENTITY] have specifically deposed about preparation of the MLC of the accused. No suggestion to these witnesses that that the accused was not medically examined by the police was given. The MLC itself shows the name of PW10 who had taken the accused to BJRM Hospital after his arrest and got him medically examined. Therefore, the MLC of the accused Ex. PW10/F can be relied upon. The MLC of the accused corroborates the testimony of child victim to the effect that in order to get herself free from the clutches of the accused, she had bitten the hand of the accused. The relevant examination detail of the accused on his MLC Ex. PW10/F reads as under : " Abrasion of 0.5 x 0.5 cm present over ralnar side of rt. Hand." Whether the prosecution case is bad for want of independent corroboration of the testimony of PW7
25. It is evident from record that the accused was the only person, who was [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 residing in a room at the top floor. When the child victim had gone to collect the dried clothes at the top floor, the accused was alone and he had committed sexual assault upon her and as such, there was no possibility of someone else having seeing the incident. Further, it is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, finds it acceptable. In case titled as Dattu Ramrao Sakhare Vs. [ENTITY] of Maharashtra (1997) 5 SCC 341, it was held that, " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under [SECTION] of the [ACT] provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 competent witness and there is no likelihood of being tutored."
26. In case of Pancchi Vs. [ENTITY] of U.P., AIR 1998 SC 2726, it was further held : "It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
Therefore, nonexamination of any independent witness is not fatal to the prosecution case.
27. In the present case, the evidence of the child victim is cogent, reliable and trustworthy and same is duly corroborated by the testimonies of her mother PW8 Smt. [ENTITY]. Even the injuries found at the hand of the accused and duly mentioned in MLC Ex. PW10/F, duly support the testimony of the child victim. [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015
28. Therefore, from the aforesaid discussion, the consistent testimony of PW7 duly corroborated by the medical evidence Ex. PW10/F and the accused having failed to prove his defence through positive evidence, the charges against the accused in the matter are held to be established. The accused is accordingly convicted for the offence punishable u/[SECTION] of [ACT].
29. Let the convict be heard on the point of sentence on 06.06.2015.
(Announced in the open ) ([ENTITY]) (Court on 05.06.2015) Addl. Session Judge (NorthWest)01 Rohini/Delhi [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 IN THE COURT OF VINOD YADAV: ADDL. SESSIONS JUDGE
(NORTHWEST01): ROHINI DISTRICT COURTS: NEW DELHI ([CASE NUMBER]) [CASE NUMBER] [ENTITY] V/s [ENTITY] U/[SECTION] [ACT] and 10 of [ACT] P.S. : Shalimar Bagh [ENTITY] V/s [ENTITY] S/o [ENTITY] R/o House no. 537, Gali no. 5, Ambedkar Nagar, Haider Pur, Delhi.
Convict 06.06.2015 ORDER ON SENTENCE Pr: Ld.Addl.PP for state.
Convict produced from J.C with Sh. [ENTITY], ld. Defence counsel. ORDER ON THE POINT OF SENTENCE [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 In the present case, the convict - [ENTITY] has been convicted u/[SECTION] of [ACT].
I have heard arguments on the point of sentence advanced at Bar by the Ld. Addl. PP on behalf of the [ENTITY] and Sh. [ENTITY], ld. 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. It is specifically emphasized that the child victim in this case was of tender age i.e. aged about 10 years, when she was sexually assaulted by the convict. The learned Addl. PP has prayed for the maximum punishment prescribed under [SECTION] of the Act to the convict, so that the same may act as a deterrent for other impending offenders.
3. Per contra, the learned counsel for the convict has argued that convict is a young person having age of 27 year and is having responsibility of maintaining his old aged father, wife and two minor children, aged about 4 and 6 years. It is further submitted that father of the convict remains at home due to old age and the convict is the sole bread earner of his family. It is further submitted that convict was doing the work of nailpolish and is the first time offender. He further submitted that convict has already remained in [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 jail for about one and half months, during the trial of the case. He prays that in view of the aforesaid family circumstances of the convict, a lenient view may kindly be taken in sentencing the convict.
4. I have given thoughtful consideration to the arguments advanced by Bar by both the sides and to the facts and circumstances of the case in totality. The offence, for which the convict has been convicted in the matter, is highly derogatory. However, I cannot loose sight of the fact that convict is the sole bread earner of his family, having responsibility of his family, his old aged father and minor children. 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 [SECTION] of [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 5 (five) years along with fine of Rs. 5,000/, in default of payment of fine, further SI for a period of 6 months, for the offence u/[SECTION] of [ACT].
Benefit of [SECTION] [ACT] is accorded to the convict.
5. Coming now to the aspect of compensation to the child victim, who is a minor girl aged about 10 years, 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 [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 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.
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 [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 [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 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 [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 [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 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 girl, I hereby direct learned Secretary, D.L.S.A, North West Distt. to grant compensation of Rs. 10,000/ (Rs. Ten thousand only) to the child victim. The said amount shall be used for their welfare and rehabilitation, under the supervision of Welfare Officer, so nominated by the Government of NCT of Delhi.
8. A copy of this order be sent to learned Secretary, D.L.S.A, North West Distt., Rohini Courts, Delhi and Director, Department of Woman and Child Development, GNCT of Delhi, for information and necessary action under intimation to this Court.
9. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High [CASE NUMBER] : FIR No. 526/13 : PS Shalimar Bagh : [ENTITY] V/s [ENTITY] : DOD: 01.06.2015 Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
A copy of judgment and copy of order on sentence be supplied free of cost to convict against receipt.
File be consigned to record room.
(Announced in the open ) ([ENTITY]) (Court on 06.06.2015) Addl. Session Judge (NorthWest)01 Rohini/Delhi