Delhi High Court
Dalip @ Ballu vs State ( Govt Nct Of Delhi) on 12 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12th January, 2018
+ CRL.A. 247/2016
DALIP @ BALLU ..... Appellant
Represented by: Mr. Arun Kumar Rathi, Adv.
versus
STATE ( GOVT NCT OF DELHI) ..... Respondent
Represented by: Ms. Meenakshi Chauhan, APP
with SI Vidya rawat PS
Maurya Enclave.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present appeal, Dalip @ Ballu challenges the impugned
judgment dated 23rd January, 2016 whereby he was convicted for offence
punishable under Section 10 of Protection of Children from Sexual Offences
Act, 2012 (in short 'POCSO') and order on sentence dated 28 th January,
2016 whereby he was directed to undergo rigorous imprisonment for a
period of five years and to pay a fine of ₹5000/- for the offence punishable
under Section 10 POCSO and in default of payment of fine to undergo
further simple imprisonment for a period of six months.
2. Learned counsel for Dalip @ Ballu submits that child victim was
tutored. No internal medical examination of the child victim was got
conducted which falsifies the case of the prosecution. Though, it has come
in the testimony of the child victim and her mother that the child victim
made a call to her mother, however, the same has not been proved. Though
it was urged that the initial call was made by the mother of the child victim,
however the same is not reflected in the DD No.39A. There is delay in
lodging the FIR. There are contradictions in the statements of the child
victim recorded under Section 161 and 164 Cr.P.C.
3. Per contra, learned APP for the State submits that the impugned
judgment suffers from no illegality and conviction can solely be based on
the testimony of child victim.
4. Process of law was set into motion on 17th October, 2014 around 7.50
P.M. on receipt of information regarding attempt to rape upon a 10 years old
girl at C-32 Jhuggi, Gandhi Market, Pitampura. The aforesaid information
was recorded vide DD No.39A [Ex.PW-9/A] and was assigned to ASI
Ishwar Singh (PW-9). He along with Ct. Yogesh went to the spot and met
the child victim and her mother. On enquiry, he came to know that the child
victim was sexually assaulted by the appellant, who is her real paternal uncle
(chacha). In the meantime, WSI Upkar Kaur (PW-11) reached the spot. She
sent Dalip @ Ballu to the Police Station. Thereafter, she along with W/Ct.
Archana (PW-7) took the child victim and her mother to BSA Hospital and
also called Ms. Madhu Dass (PW-6) from a NGO to counsel the child
victim. Child victim was medically examined, however mother of child
victim refused for her internal gynaecological examination. Thereafter, she
recorded the statement of child victim vide Ex.PW-4/A. On the basis of
aforesaid statement, FIR No.801/2014 [Ex.PW-2/A] was lodged at PS
Maurya Enclave for the offence punishable under Section 376 IPC. Dalip @
Ballu was arrested vide arrest memo Ex.PW-11/A. His personal search was
conducted vide memo Ex.PW-11/B. He was also medically examined at
BSA Hospital. Statement of child victim was recorded under Section 164
Cr.P.C. [Ex.PW-3/B]. After the completion of investigation, charge sheet
was filed for offences punishable under Section 376 IPC and Section 6
PCOSO Act. Charge was framed against the appellant for offence
punishable under Section 6 POCSO Act.
5. Child Victim T was examined as PW-4 in Court. After ascertaining
that she was capable of giving rational answers to the questions put to her,
following questions were posed to her and she deposed as under:
"Q: Beta, batao kya hua tha?
Ans: Mere mummy, papa aur daadi ka jhagda hota tha, isliye
meri mummy meri mausi ke ghar rehti thi, kyunki mere
nana ki death ho gai hai.
Q: Beta, unka jagdha kis baat par hota tha?
Ans: Kunki meri mummy ko beta nahi hua, aur hum do hi
behne hai, iss baat par papa mummy ko maarte the aur
daddi bhi jagdha kjarti thi.
Q: Beta, app kahan rehte the?
Ans: Main, ghatna se 10 din pehle apni daadi ke saath rehne
aayi thi.
Q: Beta, batao aapke ke saath kya ghatna hui thi?
Ans: 15 taarik, pichle saal diwali ke mahine ke baat hai, mere
chacha ne sham ko 8.00 baje towel se mere muh beech
diya.
Q: Beta, phir kya hua?
Ans: Meine, kaha chacha mujhe chod do, par wo mujhe chod
nahi rahe the, ussi time meri daadi ne sabun lene ke liye
mujhe awaz lagai aur tab unhone mujhe chod diya.
Q: Beta, phir kya hua?
Ans: Raat ko 3-4 baje ke karib kisi ne mujhe sofa se uthakar
palang par leta diya. Jab meri aankh khuli to meine
chacha ko apne saamne bina kapado (naked) he dkeha
aur meri bhi leggings uteri hui thi.
Q: Beta, phir kya hua?
Ans: Phir chacha mere upar let gaye aur apna susu mere susu
mein lagane lage. Mujhe dard hua tha aur chadar par
aur mere upar kuch gila gila white white paani jaisa gira
tha.
Q: Beta, phir kya hua?
Ans: Meine chacha ko Dhaka maara, jis se mere chacha ka
paon meri daadi, jo jamin par so rahi thi ko lag gaya aur
wo boli ke kya hua. Chacha ne kaha kuch nahi hua, so
jaa, so jaa.
Q: Beta, phir kya hua?
Ans: Phir daadi ne mujhe do thapad mare aur mein
chupchaap so gayi.
Q: Beta, aapko daadi ne kyun thapad mare?
Ans: Mujhe nahi pata, par din mein wok eh rahi thi ki mein
raat mein kyun uthi hui thi, jiski wajah se unki neend
kharab ho gayi thi.
Q: Beta phir kya hua?
Ans: Din mein meine daadi ko towel wali baat bhi batai thi,
par daadi ne kaha ki aisa kuch nahi hai, ye to sabse
majak karta hai.
Q: Beta, phir kya hua?
Ans: Meine apni mummy ko phone karke daadi ke ghar bulaya
aur unhe saari baat bata di. Phir meri daadi ne mujhe
meri mummy ke saamne do thapad mare the aur mere
chacha mujhse keh rahe the ki mein jooth bol rahi hu.
Q: Beta, phir kya hua?
Ans: Meri daadi mere mummy ko gaali bakne lagi. Meri
mausi bhi mummy ke saath aayi thi, unko bhi meri
mummy ne gaali nikali. Mere daadi ne papa ko bhi
phone kar ke bula liya the."
6. Mother of child victim T was examined as PW-10. She corroborated
the testimony of child victim T.
7. Shri Arun, Primary Teacher, MCD Primary School, Mangolpuri (PW-
1) stated that as per the school records, date of birth of child victim T, on the
basis of admission form [Ex.PW-1/A] and affidavit [Ex.PW-1/B] was 5th
August, 2008.
8. Ms. Madhu Dass, CIC Counsellor, NGO Sampoorna (PW-6) stated
that on 17th October, 2014, she had counseled the child victim T and
exhibited her report vide Ex.PW-6/A.
9. Dr. Anita Sonvane, SR (Obs. & Gynae), BSA Hospital (PW-9) stated
that on 18th October, 2014, she conducted the general medical examination
of the child victim T, however the mother of child victim T had refused for
the gynaecological examination. She exhibited the MLC of the child victim
as Ex.PW-9/A.
10. The child victim has been proved to be a minor on the date of
incident. In cross-examination the only question put to the victim is that she
falsely implicated the appellant at the instance of her mother which she
denied. Merely because internal gynaecological examination of the child
victim was not got conducted would be no ground to discard the cogent and
convincing testimony of the victim. DD No.39A received at PS Maurya
Enclave mentions the phone number from which the call was sent to the
PCR which number has not been confronted to the mother of the child
victim. Though contended that there are contradictions in the statements of
the child victim but she has not been confronted with the same.
11. Considering the evidence on record and the testimony of child victim
T, this Court finds no merit in the appeal. Conviction of Dalip @ Ballu for
offence punishable under Section 10 POCSO and the order on sentence are
upheld.
12. Appeal is dismissed.
13. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record and intimation to the appellant.
14. Trial Court Record be returned.
(MUKTA GUPTA)
JUDGE
JANUARY 12, 2018
'anu/ga'
