Delhi District Court
State vs Mr.Manoj. -:: Page 12 Of on 25 July, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE (POCSO ACT),
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56908/2016
Old Sessions Case Number : 97/2016.
State
versus
Mr.Manoj
Son of Mr.Munna Lal
Resident of B-72, Ambika Enclave,
Nihal Vihar, Delhi.
First Information Report Number : 1270/2015.
Police Station : Nihal Vihar
Under sections 363 / 376 of the Indian Penal Code
and section 6 of the POCSO Act.
Date of filing of the charge sheet : 28.04.2016.
Arguments concluded on : 25.07.2017.
Date of judgment : 25.07.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State
Accused has been produced from Judicial Custody.
Mr.S.P.S Chauhan,counsel for accused.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Prosecutrix and her mother are present.
Ms.Vandana Bhatia, counsel from DLSA is also present as
a Support Person.
New Sessions Case Number : 56908/16
Old Sessions Case Number : 97/2016.
First Information Report Number : 1270/15
Police Station : Nihal Vihar
Under sections 363/376 of the Indian Penal Code
and section 6 of the POCSO Act
State versus Mr.Manoj. -:: Page 12 of
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JUDGMENT
1. Mr. Manoj, the accused, has been charge sheeted by Police Station Nihal Vihar for the offences under sections 363/376 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Manoj, has been prosecuted on the allegations that on 17.12.2015 at about 01:00 p.m he had administered some intoxicating substance to the prosecutrix (who is a minor girl and who was born on dated 07.07.2002) to make her unconscious; he had kidnapped the prosecutrix; he had kidnapped to the prosecutrix and took her at Bawana, Delhi with the intention that she may be forced or seduced to illicit intercourse with her; accused had also repeatedly committed aggravated penetrative sexual assault on the prosecutrix and accused had repeatedly raped the prosecutrix. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
3. After completion of the investigation, the charge sheet was filed New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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before the Court of the learned predecessor on 28.04.2016.
4. After hearing arguments, charge for offences under sections 328/363/366 IPC and under section 6 of the POCSO Act and in the alternative under section 376 of the IPC was framed against accused Mr.Manoj vide order dated 16.07.2016 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined as many as two (02) witnesses i.e. the prosecutrix Ms.X as PW1 and her mother Ms.Y as PW2. Fictitious identities of Ms.X and Ms.Y are given to the prosecutrix and the mother of the prosecutrix respectively, in order to protect the identity of the prosecutrix.
6. The evidence of the prosecutrix Ms.X as PW1 has been recorded in the Vulnerable Witness Room in camera. Her mother Ms.Y as PW2 has also been examined in camera.
7. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix.
Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
8. Preliminary inquiries were made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
9. The prosecutrix Ms.X as PW1 has seen accused Mr.Manoj, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused, with whom he had gone to Bawana and lived for 2-3 day. She has deposed that "He has not committed any offence against me. I identify him as Manoj."
10.As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross-
examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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11.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that accused Manoj has not committed any offence against me. It is correct that my school record does not have the correct date of birth. It is correct that I could have been above 18 years of age as on 17.12.2015. It is correct that I do not have any birth certificate issued by the Municipal Authorities. It is correct that accused Manoj is innocent."
12.The mother of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused and had turned hostile and retracted from her earlier statement. She has deposed that"She had returned home after 2-3 days. I had informed the police about her return. The date when my daughter had left the house was 17.12.2015. She informed me that she left the house along with her friend Manoj."
13.The mother of the prosecutrix has been cross examined by the Additional Public Prosecutor for the State and nothing material for the prosecution came forth. She has deposed that " I cannot admit or deny if the date of birth informed by my husband in the school at the time of admission of the prosecutrix i.e 07.07.2000 is correct or not. Vol. I do not know the date of birth of the prosecutrix so, I cannot comment on this. I know accused Manoj New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016.
First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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as he used to reside in my neighbourhood...... It is wrong to suggest that accused Manoj present in the Court had kidnapped my daughter."
14. Accused Mr. Manoj has not cross examined this witness despite opportunity was given to him.
15.Both the witnesses PWs 1 and 2 have not deposed an iota of evidence of accused Mr. Manoj that he committed the offences of sexual harassment, intoxication, kidnapping, seducing to illicit intercourse, committing penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix.
16. From the evidence of the proscutrix and her mother it is clear that there is no birth certificate of the prosecutrix and date of birth mentioned in the school records of the prosecutrix as 07.07.2000 is not correct. The mother of the prosecutrix does not know the date of birth of the prosecutrix and could not comment regarding the correctness of 07.07.2000 being the date of birth of the prosecutrix.
In the circumstance, it cannot be said with certainty that the prosecutrix was minor on the date of alleged offence.
New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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17.In the circumstances, as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses and the most material witnesses, have not supported the prosecution case and are hostile.
18.The statement under section 313 of the Cr.P.C of the accused Mr.Manoj is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses, are hostile and nothing material has come forth for the prosecution in their cross examination by the Additional Public Prosecutor for the State.
19.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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20.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
21.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
22.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
23.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
24.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Mr.Manoj. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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25.Consequently, no inference can be drawn that the accused Mr.Manoj is guilty of the charged offences under sections 328/363/366 IPC and under section 6 of POCSO Act and in the alternative under section 376 of the IPC
26.There is no material on record to show that on unknown dates and time but for the last few days prior to the registration of the FIR on 18.12.2015, within the jurisdiction of Police Station Nihal Vihar accused Mr.Manoj on 17.12.2015 at about 01:00 p.m had administered some intoxicating substance to the prosecutrix (who is a minor girl and who was born on dated 07.07.2002) to make her unconscious; he had kidnapped the prosecutrix; he had kidnapped to the prosecutrix and took her at Bawana, Delhi with the intention that she may be forced or seduced to illicit intercourse with her;
accused had also repeatedly committed aggravated penetrative sexual assault on the prosecutrix and accused had repeatedly raped the prosecutrix.
27.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Manoj for the offences of sexual harassment, intoxication, kidnapping, seducing to illicit intercourse, committing New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Mr.Manoj has committed any of the charged offences.
28.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Manoj for the offences under sections 328/363/366, under section 6 of the POCSO Act and in the alternative under section 376 IPC.
29.Consequently, accused Mr.Manoj is hereby acquitted of the charges for the offences of offences of sexual harassment, intoxication, kidnapping, seducing to illicit intercourse, committing penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix punishable under sections 328/363/366, under section 6 of the POCSO Act. He is also acquitted of the alternate charge under section 376 IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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30.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
31.Accused Mr.Manoj is in judicial custody. He be released forthwith, if not required in any other case.
32.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
33.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
34.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 25th day of July, 2017. Additional Sessions Judge-01, New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016. First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-
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Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 56908/16 Old Sessions Case Number : 97/2016.
First Information Report Number : 1270/15 Police Station : Nihal Vihar Under sections 363/376 of the Indian Penal Code and section 6 of the POCSO Act State versus Mr.Manoj. -:: Page 12 of 12 ::-