Delhi District Court
State vs Mr.Rajeev Kumar @ Sanju -:: Page 10 Of 10 ... on 29 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 : 58149/2016.
Old Sessions Case Number : 249/2016.
State
versus
Mr.Rajeev Kumar @ Sanju
Son of Mr.Jagdish Lal
R/o N-195, IInd floor, JJ Colony,
Raghubir Nagar, Delhi.
First Information Report Number : 220/2016.
Police Station : Khyala
Under section 363/366/376 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 12.10.2016.
Arguments concluded on : 29.07.2017.
Date of judgment : 29.07.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State
Accused has been produced from judicial custody.
Mr. S. P. Sharma, counsel for accused.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
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JUDGMENT
1. Mr.Rajeev Kumar @ Sanju, the accused, has been charge sheeted New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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by Police Station Khyala for the offences under sections 363/366/376 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.Rajeev Kumar @ Sanju, has been prosecuted on the allegations that on 03.05.2016 at about 09:30 am, he had kidnapped to the prosecutrix and taken her to Vaishno Devi and thereafter, to Agra and between 03.05.2016 to 12.07.2016, in a room of hotel at Agra (U.P.) and also at Katra (Jammu), he had committed aggravated penetrative sexual assault on the prosecutrix and committed rape upon her. 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 before the Court of the learned Duty Metropolitan Magistrate on 12.10.2016.
4. After hearing arguments, charges for offences under section 363/366 of the IPC, section 6 of the POCSO Act and in the alternative under section 376 of the IPC was framed against New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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accused Mr. Rajeev Kumar @ Sanju vide order dated 18.11.2016 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 three (03) witnesses i.e. the prosecutrix as PW1, her father as PW2 and the Investigating Officer (IO) as PW3.
6. The evidence of the prosecutrix as PW1 has been recorded in the Vulnerable Witness Room in camera. Her father 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 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 New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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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 as PW1 has seen accused Mr.Rajeev Kumar @ Sanju, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused. She has deposed that "He was my neighbor....... 'Main inke saath kahin nahi gayi, ye mujhko kyun lekar jayenge" As the prosecutrix (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross-examined her at length but nothing material for the prosecution has come forth.
10.In her cross examination on behalf of the accused, the prosecutrix (PW1) has deposed that "Mei to jaanti bhi nahi hun ise" She has denied the contents of her statement to the police and before the learned Metropolitan Magistrate under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.).
11.The father of the prosecutrix (PW2) has deposed that the prosecutrix has told him that she had been enticed away by the accused and that he solemnized marriage with her and raped her. He has deposed in his cross examination on behalf of the accused that he does not remember the date of the prosecutrix. Police had New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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not taken any document regarding her date of birth from her school in his presence.
12.Investigation Officer Inspector Rajni Chopra (PW3) has deposed regarding the investigation conducted and proved all the documents prepared including the documents of arrest of the accused.
13.PW1 has not deposed an iota of evidence of accused Mr.Rajeev Kumar @ Sanju that he committed the offences of kidnapping, aggravated penetrative sexual assault and rape upon the prosecutrix. The evidence of the father of the prosecutrix is only hearsay and even that is not reliable when the prosecutrix herself has deposed that neither the accused had taken her nor he had raped her. PW2 is a formal witness of arrest of accused and is a hearsay witness only. IO has also deposed regarding the investigation conducted.
14.In the circumstances, as the prosecutrix (PW1), who is the star witnesses, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused and has not deposed anything incriminating against him, the case of the prosecution is neither reliable nor believable.
15.The statement under section 313 of the Cr.P.C of the accused New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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Mr.Rajeev Kumar @ Sanju is dispensed with as there is nothing incriminating against him as the prosecutrix (PW1), who is the star witness, is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State.
16.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.
17.In the light of the aforesaid nature of deposition of the prosecutrix (PW1), who is the star witness of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the prosecutrix has retracted from her earlier statement and turned hostile. Nothing material for the prosecution has come forth in her cross examination on behalf of the State. She has, in fact, deposed that the accused is innocent and he has not committed any offence against her. 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 New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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the evidence of such witness."
18.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
19.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held 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.
20.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).
21.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 New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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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.Rajeev Kumar @ Sanju. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22.Consequently, no inference can be drawn that the accused Mr.Rajeev Kumar @ Sanju is guilty of the charged offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and in the alternative under section 376 of the IPC
23.There is no material on record to show that on the allegations that on 03.05.2016 at about 09:30 am, the accused had kidnapped the prosecutrix and taken her to Vaishno Devi and thereafter, to Agra and between 03.05.2016 to 12.07.2016, in a room of hotel at Agra (U.P.) and also at Katra (Jammu), he had committed aggravated penetrative sexual assault on the prosecutrix and committed rape upon her.
24.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. Rajeev Kumar @ Sanju for the offences of kidnapping and committing aggravated penetrative sexual assault and raping New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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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. Rajeev Kumar @ Sanju has committed any of the charged offences.
25.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.Rajeev Kumar @ Sanju for the offence under sections 363/366 of the IPC, under sections 6 of the POCSO Act. The prosecution has also failed to bring home the alternative charge for the offence under section 376 of the IPC.
26.Consequently, accused Mr. Rajeev Kumar @ Sanju is hereby acquitted of the charges for the offences of offences of kidnapping and committing aggravated penetrative sexual assault and raping the minor prosecutrix punishable under sections under sections 363/366 of the IPC and under section 6 of the POCSO Act. He is also acquitted of the alternate charge under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
27.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-
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28.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
29.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.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 29th day of July, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 58149/2016 Old Sessions Case Number : 249/2016 First Information Report Number : 220/16 Police Station : Khyala Under sections 363/366/376 of the Indian Penal Code and under section 6 of the POCSO Act State versus Mr.Rajeev Kumar @ Sanju -:: Page 10 of 10 ::-