Delhi District Court
Sc No. 142/13 State vs Bhanu Kumar Shah Page No. 1 Of 7 on 23 January, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0111922013
SESSIONS CASE NO. 142/13
FIR NO. 33/13
POLICE STATION : LODHI COLONY
UNDER SECTION : 376 IPC & 4 POCSO ACT
STATE
VERSUS
BHANU KUMAR SHAH,
S/O SH. JYOTISH CHANDRA,
R/O SERVANT QUARTER NO. 20/47, LODHI COLONY,
NEW DELHI110003.
DATE OF INSTITUTION : 25.04.2013.
DATE OF RESERVING ORDER : 23.01.2014.
DATE OF DECISION : 23.01.2014.
J U D G M E N T
Case of Prosecution:
1 Brief facts of the case as per the prosecution are that on SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 1 of 7 15.02.2013 complainant/prosecutrix namely 'X' (name withheld to keep her identity confidential ) along with her brother and sister came to police station and gave her statement that she is residing at Servant Quarter H.No. 20/45, Lodhi Colony, New Delhi and is aged 16 years. She has studied upto 3rd class and her mother is working as Maid servant. About three months prior to this incident, accused Bhanu Kumar Shah is staying with his brother Ravi in her neighborhood. Few days thereafter, Ravi went abroad. Everybody in her family except herself used to go for their work.
She used to talk to accused Bhanu Kumar Shah. They started liking each other and also fell in love. Accused applied vermilion (sindur) in her maang. Thereafter, he forcibly caught hold of her and made physical relations with her and stated that he will marry her. She stated to him that he should tell her parents about their relationship but he did not inform them. She then told the facts to the police. On the statement of complainant, case was registered against the accused Bhanu Kumar Shah. Prosecutrix 'X' was then medically examined at AIIMS Hospital. Exhibits and MLC were deposited in Malkhana. Victim/prosecutrix was handed over to her sister. IO also collected the date of birth of the prosecutrix from her school. At the instance of prosecutrix, site plan was prepared. Counseling of prosecutrix was conducted through NGO, Prayas, Tuglakabad. IO along with Ct. Rakesh at the instance of prosecutrix 'X' reached at the house of accused and arrested him. SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 2 of 7 Accused was also medically examined at AIIMS Hospital and exhibits were taken into possession by the police. Accused was produced before the Duty MM and was sent to judicial custody. Statement of prosecutrix under section 164 Cr.P.C was got recorded. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 4 POCSO Act and 376 IPC was filed against the accused in the court. 2 Since the offence under Section 376 IPC & 4 POCSO Act are exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused:
3 Prima facie case under section 4 POCSO Act and in the alternative U/s 376 IPC was made out against the accused. Charge under Section 4 POCSO Act and in the alternative U/s 376 IPC was framed upon the accused on 21.10.2013 to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4 In support of its case, prosecution has examined three witnesses in all. The brief summary of the deposition of the prosecution witnesses are as under: 5 PW1 is prosecutrix namely 'X' herself. She deposed that SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 3 of 7 she knows accused Bhanu Kumar Shah who about three months prior to this incident, came to Delhi from his native village and started living with his elder brother Ravi in their neigbourhood in a rented room. Few days thereafter, the elder brother of the accused namely Ravi went abroad. Everybody in her family except herself used to go to their workplace in the day time. The accused often used to talk to her and very soon they became good friends. She started liking him and vice versa. Accused even proposed her to marry him which she accepted. One day she was alone in her house, she called him. The accused applied vermilion (sindur) in her maang. Since then, she began to behave like his wife. They both informed their respective families who reluctantly conceded to their decision. She had sexual intercourse with the accused with her own consent only after the marriage. Her parents wanted to perform some necessary rituals which off late have been performed and now she and accused are residing under the same roof as husband and wife. She stated that she does not know anything else about the case. However, witness resiled from her statement. Ld. APP for state has cross examined the witness but nothing material came in the cross examination of the witness.
6 PW2 is Sh. Surjeet, brother of prosecutrix, who deposed that in the month of January, 2013 her sister/prosecutrix 'X' had informed him about her affection with a nearby resident accused Bhanu Kumar SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 4 of 7 Shah and also that they performed marriage. He advised her that she is not mature enough to take decisions and that the accused would leave her. On his asking about the marriage documents she stated that no documents were executed. Since at that time accused refused to go by the marriage process in the legal way, he decided to report the matter to the police. Police obtained signatures of his sister on some papers. Later on, they came to know that police had made a case of rape which they never intended for. In the meanwhile, their family as well as the family of accused intervened and the necessary marriage ceremonies were performed in the presence of both the families. Her sister/prosecutrix 'X' has been staying with the accused under the same roof as his wife. He stated that he has no issue left. However, witness has resiled from his statement. Ld. APP for state has cross examined the witness but nothing material came in the cross examination of the witness. 7 PW3 is Ms. Meenakshi, sister of the prosecutrix who had also deposed on the lines of PW2. However, witness has resiled from her statement. Ld. APP for state has cross examined the witness but nothing material came in the cross examination of the witness. Conclusion: 8 Perusal of the file reveals that PW1, PW2 and PW3 are the only material/star witnesses of this case who all have turned hostile and have not supported the case of the prosecution. The prosecutrix/ PW1 SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 5 of 7 has stated that she had married the accused one day in his house and thereafter she started behaving like his wife and that her family also conceded to their decision and that she had sexual intercourse with the accused with her consent after the marriage. She has also stated that when she insisted for court marriage in the presence of their respective families the accused refused on which she complained to the police who asked the accused to marry her legally for which the police obtained his signatures on blank papers. She has also stated that though as per the school record her date of birth is 28.12.1995 but she was 4/5 years elder to her actual age and when she was admitted in the school her parents did not have any official date of birth record and so the date of birth was recorded on the basis of guess. On the similar lines the brother of the prosecutrix and the sister of the prosecutrix, PW2 and PW3 had deposed. In view of the statement of the prosecutrix and her brother and sister, it will be futile to record the statement of the Principal of the school to prove the school record or to record the statement of the remaining witnesses who are formal witnesses. Even if, the statement of remaining witnesses are recorded, it cannot bring home the guilt of the accused. Hence, prosecution evidence is closed. Since there is no incriminating evidence against the accused, statement of accused is dispensed with.
9 In the facts and circumstances, accused Bhanu Kumar Shah SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 6 of 7 is acquitted of the offence under Section 4 POCSO Act and in the alternative under section 376 IPC.
10 In view of the Section 437A of Cr.PC, accused is directed to furnish bail bond in a sum of Rs. 20,000/ with one surety of like amount for the period of six months with the condition that he shall appear before the Hon'ble High Court as and when notice be issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be confiscated to the state after expiry of period of revision/appeal, if any.
11 File be consigned to the Record Room.
ANNOUNCED IN THE OPEN COURT ON 23.01.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 142/13 State Vs Bhanu Kumar Shah Page No. 7 of 7