1 IN THE COURT OF SH. [ENTITY], ADDITIONAL SESSIONS JUDGE-1 (POCSO), SHAHDARA, DISTRICT, KARKARDOOMA COURTS, DELHI. CNR No. : DLSH01-000010-2014 Sessions Case No : 01/2016 FIR No. : 116/2014 Under Section : 397 [ACT] Police Station : Harsh Vihar In the matter of : STATE Prosecution VERSUS 1. [ENTITY] S/o Sh. [ENTITY] Gali No.15, Mandoli Extn, Delhi. Accused Date of Institution : 10.05.2014 Date of Committal 01.04.2015 Date of reserving judgment : 27.08.2019 Date of pronouncement : 27.08.2019 JUDGMENT
1) Accused was sent up for trial by the police of PS Harsh Vihar for offences punishable under [SECTION] of [ACT] (herein after referred to as "[ACT]" in short)
2) In brief the prosecution case is that on receipt of DD No.36A, IO reached at the spot where he found crowd and one young boy in injured condition later on identified as [ENTITY]. He was sent to GTB Hospital in the custody of 2 [ENTITY] in PCR Van. He recorded statement of complainant Sh. [ENTITY] who stated that on 19.3.2014 at about 8:00 p.m., his son [ENTITY] aged about 13 years, who is mentally and physically weak, was playing in the street in front of his house. In the meantime one boy came and shown some sharp edged weapon to his son and frightened him and took away ear ring of gold about 2 gm from his right ear and run away when the child raised alarm. They chased him and then came to know that the said boy is [ENTITY] s/o [ENTITY], R/o Gali No.15, Mandoli Extn., Delhi who lives on rent and he (complainant) knows his very well. At about 10:40 p.m., accused was standing in the street opposite to park and nearby residents caught hold him and started giving beatings and in the meantime somebody called PCR. Police arrived at the spot and removed accused in injured condition to the hospital. On the basis of the said statement, FIR was got registered. Site plan was prepared. Complainant and his son were taken to GTB Hospital where son of the complainant/ victim identified the accused as the boy who had taken away his ear ring of gold after frightening him. Complainant also identified him. MLC of the accused was obtained where doctor recorded alleged history of assault as physical assault (alcohol smell) under observation blunt fit for statement. He was arrested. Exhibits were seized. After 3 completion of the investigation, chargesheet was filed before court of Ld. Metropolitan Magistrate, KKD Courts, Delhi.
3) After supplying necessary, Ld. MM took the cognizance and charge accused for offence punishable u/[SECTION] [ACT], to which he pleaded not guilty and claimed trial. However, after recording evidence of complainant and part examination-in-chief of victim child, Ld. MM was of the opinion that [SECTION] [ACT] is attracted in this case as accused has used knife while committing robbery and hence committed the case to the Court of Sessions for trial vide order dated 01.04.2015.
4) My Ld. Predecessor vide order dated 17.09.2015 charged the accused for offence punishable u/[SECTION] [ACT] and 397 [ACT], to which he pleaded not guilty and claimed trial.
5) The prosecution in support of its case, examined as many as 7 witnesses. The prosecution examined following material witnesses:-
i. PW-1 is victim child. ii. PW-5 is father of victim and complainant. He proved
his statement / complaint as Ex.PW-5/A, site plan as Ex.PW-5/B, arrest memo, personal search memo and disclosure statement and pointing out memo of accused as Ex.PW-5/C, Ex.PW-5/D, Ex.PW-5/E, and 4 Ex.PW-5/F respectively.,
6) The prosecution also examined following formal witnesses:-
i. PW-02 [ENTITY] was Incharge at PCR Van at the relevant time who removed accused to the hospital from the spot as he was given beatings by public persons.
ii. PW-03 ASI [ENTITY] was on patrolling duty who reached at the spot on receipt of information that a thief was caught. As per instruction of IO, he took the tehrir and statement of complainant to the police station and got the case registered and thereafter handed over the same to the IO.
iii. PW-4 [ENTITY] is duty officer who recorded formal FIR on the basis of rukka and proved computerized copy of FIR as Ex.PW-4/A and his endorsement as Ex.PW-4/B.
7) The prosecution also examined following witness of investigation:-
i. PW-06 Ct. [ENTITY] is witness who alongwith IO reached at the spot on receipt of information and took accused to GTB Hospital in PCR van and got his medical examination done. In addition to other documents, he proved MLC of accused as Ex.PW-6/A 5 and seizure memo of purse with three parchi handed over to him by doctor as Ex.PW-5/B (it should be PW- 6/B.) ii. PW-7 SI [ENTITY] is investigating officer. In addition to other documents, he proved his endorsement as Ex.PW-7/A.
8) After conclusion of evidence, statement of accused was recorded u/[SECTION] [ACT], wherein he denied the prosecution evidence and claimed to be innocent. He stated that this is a false case. 3 days prior to the date of incident, he had quarrel with father of victim child and his labourers on some petty issue and he had fled away on that day after abusing them (sic). Thereafter on the day of incident, father of victim child alongwith his labourers surrounded him and gave beatings, in order to take revenge of quarrel which had taken place on 3 days prior to the incident. He sustained multiple injuries.
In order to avoid registration of case against them, they had falsely implicated him in this case. They had tutored victim child to falsely implicate him. He has also been given beatings by the police. He stated that he is innocent, however, he chose not to lead evidence in his defence.
9) I have heard Sh. [ENTITY], Special P.P. for [ENTITY] and Sh. [ENTITY], Advocate, Amicus Curiae for accused.
6 I have also gone through the record.
10) PW-1 child victim was examined in designated child witness court room. He has given his age as 12 years and therefore he was put preliminary question to ascertain his competency and after satisfying himself, recording his statement without oath.
11) It is also observed by my Ld. Predecessor that from physical appearance and body structure witness appears to be around 10/11 years of age, however, he has given his age as 12 years, his father, who was accompanying him in the court, was asked regarding the age of the witness and he stated that witness is about 14 years of age and is mentally dull/ retarded to some extent, however, he has the capacity to understand and make a statement. My Ld. Predecessor was also of the view that witness fully understands the question put to him and is capable of making sensible answers and has sufficient maturity of understanding, however, he has some difficulty in speaking.
12) The victim child PW-1 testified that on 8th day of month, he did not remember the month and year, on that day day, in the evening, he was playing cricket in the park, [ENTITY] had come there and shown him a knife and threatened him and thereafter cut the bali (ear ring) from his ear (witness has signaled towards his right ear). After removing bali, [ENTITY] [ENTITY] put the bali in his mouth. Thereafter, [ENTITY] had given him Crax and toffee (santre ki goli) and thereafter [ENTITY] had fled away from the park. He had informed the incident to his father. He identified the [ENTITY] correctly to be same person who had committed the offence with him.
13) PW-5 Sh. [ENTITY] testified that he knew and identified accused as he was residing in the same locality. On 19.3.2014, his son [ENTITY] who is physically and mentally disable and is now aged 17 years old, had gone out to play in the street. At around 8:00 p.m., he heard voice of son, then he came out and found that his son was crying and he noticed that ear ring which he was wearing in one of his ears was not there. His son who knew accused before the incident informed that accused had cut said ear ring from his ear and had fled away from there.
14) He further testified that at around 10:45 p.m., accused was found present on the corner of Rakesh Park Street. He himself and public caught hold accused. The accused was thrashed by the public. Police was informed. Police came at the spot. The accused was handed over to the police and he was taken to the hospital by the police. He further stated that ear ring was of gold and weighing about 2-3 grams and was not recovered thereafter. The said ear ring was put in the ear 8 of his child out of love and affection.
15) PW-7 IO SI [ENTITY] testified that on 19.3.2014 after receipt of DD No.36 A, he alongwith [ENTITY] reached at the address mentioned thereon and found crowd gathered there and one person was in injured condition stated to have been thrashed by the public. He got sent accused to GTB Hospital through PCR of medical. Complainant was also there, who was examined and his statement was recorded by him. He arrested the accused on 20.3.2014 in the hospital after his discharge from the ward and victim and his father was also accompanying him. The accused was arrested on the identification of the father of the victim who is complainant.
16) In reply to question by Ld. Addl. PP that when the victim was with him during identification of the accused and his arrest at the hospital, why he has not got signature of the victim on the memos, IO stated since, the complainant had made clear that victim is special child (mandbudhi) (intellectural disable). In reply to further question that what inquiry he made or got conducted to find out the intellectual abilities of the victim child to understand about the events about happening and identify of culprits, IO stated that on inquiry with the child, he was satisfied and since the accused was residing in the same street, hence, the child was able to identify him.
17) On being led by Addl. PP, IO admitted that disclosure statement, pointing out memo and seizure memo were prepared by him. However he denied the suggestion that he has not supported the prosecution by withholding the other aspect of the investigation in order to save the accused from conviction. He admitted that he has refreshed his memories before his evidence.
18) PW-6 [ENTITY] corroborated IO regarding DD No.36A, they reached at the spot and found crowd gathered and accused in injured condition, accused was taken to hospital in PCR van and arrest of accused. In reply to question that whether the accused was discharged from the ward, if he was admitted by the hospital or he (witness) had on his own got him identified from the complainant and then arrested and thereafter took him to the spot, he stated he did not remember. He was cross-examined by Ld. Addl. PP for [ENTITY] as he was not supporting the prosecution case. However, thereafter he admitted that accused made disclosure statement and pointed out. He denied the suggestion that he has not supported the case of prosecution intentionally in order to help the accused.
19) Ld. Amicus Curiae for accused submitted that there are material inconsistencies in the testimony of witnesses and 10 therefore they are not reliable. Further the child was special child and hence can be easily tutored and was in fact tutored by complainant to depose against accused. Further there is no recovery of ear ring as well as knife/sharp edged weapon from the possession of accused. Further allegedly the ear ring was taken away but cutting, however, there is no medical examination of the victim child which falsify the said version. Further no such alleged incident had taken place and therefore there is no independent witness despite the fact that spot is situated at thickly populated area. Further, it is also submitted that allegedly accused has taken away ear ring of the child at about 8:00 p.m. and was chased by father of the victim who has identified him with residential address, however, despite that police was not called at 100 number to report the matter and police was only called at 10:45 p.m. when accused was given beatings and subsequently complainant in collusion with police have falsely implicate the accused in this case.
20) On the other hand Ld. Addl. PP for [ENTITY] submits that witnesses have supported the prosecution case and hence they had proved their case. There is no question of identification of accused as he was known to victim and his father previously being resident of same locality.
21) In this case victim was minor. Further as per his own father and IO, he was mentally and physically weak. The evidence on the child witness is to be appreciated as per the law laid down by Hon'ble Supreme Court in case of K. Venkateshwarlu v. [ENTITY] of A.P., (2012) 8 SCC 73 wherein it is held that the evidence of the child witness has to be subjected to closest scrutiny. To quote :-
9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see [SECTION] of the [ACT]). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other 12 evidence on record is a must before the court decides to rely upon it.
22) In view of above law, evidence of PW-1 victim child shall be appreciated. In his cross-examination, PW-1 stated that accused had shown him a sharp object which was a knife. The said knife was shown to him near the garbage house (kuredan). Many public persons (sari duniya) were present in the park when [ENTITY] shown him knife. He was playing cricket alongwith 3-4 other boys in the park situated behind the kuredan. The incident took place adjacent to the park. The ornament (bali) was slightly bigger in size. Her father had given beatings to the [ENTITY]. He was never taken to the hospital for his medical examination. He knew the accused before the incident.
23) In his cross-examination, PW-5 father of victim child/ complainant stated the accused was not known to him prior to the incident. There is three street difference between his house and house of accused. He admitted that his son faces difficulty elaborating things or about the person but he voluntarily stated that he takes time but give complete details of things or person. His son had left house for playing about 8:00 p.m. and within 15 minutes, he (witness) heard the voice of his son. When he came out his son only was found present there. He admitted that he had not seen accused committing 13 offence. His son was playing at a distance of about 30 steps away from his house. At the time of incident, in the year 2014, his son was about 14 years old. His son knew the accused as he was residing in the same locality. He stated that his son probably did not know accused prior to incident by his name. Availability of the accused at near Rakesh Park was told by his victim son to him. Accused was caught hold at about 10:00 p.m. on the same day of incident. Public persons had called the police. Police came at around 10:45 p.m. after apprehension of accused. Police van and 03-04 police officials came there. Police recorded his statement at spot of apprehension of accused i.e. Rakesh Park where accused was caught hold. At that time, there was no street light in the park. accused was given beatings by public persons including him. His statement was recorded on the next day.
24) As observed by Ld. Predecessor of this court as well as deposed by father and IO, the victim child was intellectually impaired. The child faces difficulty in speaking but he can explain and elaborate the question. As regards the arguments that child was tutored by father, testimony of the child witness is very natural, he pointed towards his ear while deposing that he was having ear ring which accused had taken. He had also explained that accused kept same in his mouth. He has also consistently stated that accused was 14 carrying knife, though knife was not recovered.
25) Only question is regarding identification of the accused. The child in his testimony has stated that he had not gone to the hospital for his medical examination. As per prosecution case, the child has identified the accused after seeing him at the hospital. The accused is resident of that area and was roaming in the said area and therefore he was not only known to the child but also known to the father of the victim child. Child could explain him by his name. The child has categorically stated in his statement that it was [ENTITY] who had taken away his bali (ear ring).
26) Now coming to submission that no call was made immediately after the incident, the victim child was intellectually impaired and therefore it is not expected from father to immediately call the police instead of taking care of the child with whom incident had taken place. Moreover accused after couple of hours was seen therefore was apprehended by public persons. Therefore it does not go to the roots of the matter. The inconsistencies pointed out are minor in nature and can be safely ignored. Therefore prosecution has succeeded in proving that the accused having shown him knife snatched ear ring from the ear of the child and accordingly offence punishable u/[SECTION] [ACT] is proved.
27) As regards offence u/[SECTION] [ACT], Ld. Defence counsel submitted that offence u/[SECTION] [ACT] is not proved as the knife could not be recovered nor the size of knife was described and therefore prosecution failed to prove that it was deadly weapon.
28) The Hon'ble Delhi High Court in case titled as Sunil @ Munna v. [ENTITY] (Govt. of NCT), 2010 (114) DRJ 289, held with approval, to quote:-
18. In the absence of the necessary ingredients not having been established by the prosecution the conviction of the appellant under [SECTION] cannot be sustained. His conviction is altered from [SECTION] to a conviction under [SECTION] of the [ACT].
19. In Balik Ram v. the [ENTITY], 1983 Crl. L.J. 1438, a coordinate Bench of this court had held that:
" Though the knife that was recovered from the accused a few hours of the occurrence was no doubt a deadly one on account of its size and design but it was not shown to the victim when he came to depose nor has he given any description of the knife so that it could be held that the knife alleged to have been placed by the accused on his abdomen was the one recovered or the one similar to that one. The accused can, therefore, legitimately claim that the weapon used by him has not been proved to be a deadly one "
20. In [ENTITY] v. [ENTITY], 70(1997) DLT 595, a coordinate Bench of this Court while altering the conviction under [SECTION] to a conviction under [SECTION] of the [ACT] had held that the evidence on 16 record had not established that the same knife was used for the purpose of commission of the offence by [ENTITY]; only after the appellant had been chased and overpowered was the knife recovered from him; [SECTION] of the [ACT] had been held not attracted.
29) In this case admittedly no knife was been recovered from or at the instance of the accused, allegedly to have been used for commission of offence. Even no description regarding its size and design was given. Therefore keeping in view the said facts and law, I am in agreement with Ld. Defence Counsel that offence u/[SECTION] [ACT] is not proved against accused.
30) However, it is out of place to mention that IO in this case had not done investigation properly as despite coming to know that child is intellectually disable, he could not seek assistance of special educator in examining the child. It was not proper for the police to examine victim child - firstly, he was child and secondly was intellectually weak. The testimony of IO leaves much to desire. He was declared hostile by Ld. Addl. PP as he could not give proper evidence. In reply to further question that what inquiry he made or got conducted to find out the intellectual abilities of the victim child to understand about the events about happening and identify of culprits, IO stated that on inquiry with the child, he was satisfied and since the accused was residing in the same street, hence, the child was able to identify him.
31) Coming to the facts of the present case. The prosecution has succeeded in proving that accused had taken away bali (ear ring) from victim child and therefore offence punishable u/[SECTION] [ACT] is proved.
32) Now coming to defence. Accused has stated that father and his labourers gave beatings to him, in order to take revenge of quarrel which had taken place on 3 days prior to the incident and in order to avoid registration of case, falsely implicated him in this case. There is no evidence that quarrel had taken place with father of victim and accused three days prior or that accused has any enmity with father of victim to implicate him. Further, accused has not led any evidence to substantiate his defence. The defence is bald, unsubstantiated and weak and hence rejected.
33) The testimony of victim and his father is found trustworthy, cogent and reliable that accused [ENTITY], who was known to child and his father being resident of the same colony, had robbed ear ring from right ear of the minor victim child who was physically weak and intellectually impaired. Therefore in the totality of the facts and circumstances of the case and keeping in view testimony of victim and his father, I am of the opinion that prosecution has succeeded in proving offence punishable u/[SECTION] [ACT] against accused beyond 18 reasonable doubt. However, prosecution has failed to prove offence u/[SECTION] [ACT] against accused beyond reasonable doubt.
RESULT
34) Therefore as per discussion above, I am of the opinion that prosecution has succeeded in proving offence punishable u/[SECTION] [ACT] against accused beyond reasonable doubt. Accordingly, accused is convicted for offence punishable u/[SECTION] [ACT].
35) Let accused be heard on quantum of sentence.
Announced in the open court [ENTITY] Location: Addl. Seessions Judge-1 today i.e. 27.08.2019 SINGH (POCSO),Shahdara/KKD Date: 2019.08.28 16:02:37 +0530 ([ENTITY]) ASJ-1 (POCSO) [ENTITY]/DELHI/27.08.2019