Delhi District Court
Fir No. 293/2016 : State vs Shashi: Ps Subhash Place on 7 May, 2018
FIR No. 293/2016 : State V/s Shashi: PS Subhash Place
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No.53211/16)
State Vs. Shashi
FIR No. : 293/2016
U/s : 363/354 IPC & 10 of POCSO Act
P.S. : Subhash Place
State Vs. Shashi
S/o Sh. Ram Kumar Saxena
R/o H. No. G218,
J.J. Colony, Shakurpur,
Delhi.
Date of institution of case : 26.05.2016
Date of arguments : 07.05.2018
Date of pronouncement of judgment : 07.05.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 04.09.2016 DD no. 19A was recorded on a PCR call regarding some wrong act with a girl, aged 67 years and that boy who committed a wrong act being apprehended. The IO reached the spot near Britania Chowk where the accused was already Page 1 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place found apprehended and the victim child was inquired and was taken to hospital for medical. NGO counselor was called and after counseling, the statement of mother of victim was recorded who stated that today at about 1.00p.m. she was at her boutique where police along with her daughter P came and informed that one uncle has kidnapped her and took her to some distance and he was apprehended on the spot. The statement of the victim u/s 164 Cr.P.C. was got recorded where she stated that one person who she does not know took her to the park where one aunty saw him and called the police and that uncle did not do anything with her. After completion of investigation, chargesheet was filed. Copy supplied.
2. Two separate charges punishable u/s 363/366 IPC were framed against the accused who pleaded not guilty and claimed trial.
3. To bring home the guilt, the prosecution has examined as many as 10 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. wherein he has stated that he has been falsely implicated in the case by Manish and Page 2 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place Govind as he asked the child victim not to quarrel with other children playing in the park and Manish and Govind took him as a thief and falsely implicated him.
4. PW1 is the victim child whose testimony is reproduced herewith for the sake of brevity: "Q. Aap ke papa ka kya naam hai ?
Ans. Suraj Paswan.
Q. Aap ki mummy ka kya naam hai ? Ans. Micky Devi. Q. Aap school jate ho ? Ans. Haan, main 1st class main padhti hu. Q. Beta aapki friends hain? Ans Haan meri school main ek friend Laxmi hain. Q. Apke aur bhai behan hai ?
Ans. Meri ek badi didi hai, main aur meri ek chhoti babu hain.
Q Kya Khana achha lagta hain?
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FIR No. 293/2016 : State V/s Shashi: PS Subhash Place
Ans. Mujhe khane main Aloo, matar aur paneer achha lagta hai.
Q. Beta kya aap TV dekhte ho?
Ans. Cartoon dekhti hu motu patlu.
Q. Sach bolna achchi baat hai ya jooth bolna ?
Ans. Sach bolna acha hota hai.
From the answers given by her I am satisfied that she is capable of giving rational answers to the questions put to her. However, considering her tender age she is not being administered the Oath.
Q. Beta batao kya hua tha?
Ans Hamare ghar ke saamne do park hai ek Ramlil wala park aur ek Madrasi park. Ek din dopahar ko main Madrasi park mai khel rahi thi.
Q. Beta batao fir kya hua tha?
Ans Jab main khel rahi thi to ek uncle aaye aur mujhe hath pakad kar le jaane lage.
Q. Beta wo uncle aapko kaha le jaa rahe the?
Ans Wo mujhe sunsan ghat ki taraf le gaye.
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FIR No. 293/2016 : State V/s Shashi: PS Subhash Place
Q. Beta batao fir kya hua tha?
Ans Tabhi ek aunty ne dekh liya tha unhone apne bete ko bulaya to unke bete ne un uncle se puchha ki wo mujhe kahan le jaa rahe hai to uncle ne kaha ki wo mujhe jaante hain.
Q. Beta batao fir aage kya hua?
Ans Us aunty ke bete ne mujh se puchha ki kya main uncle ko jaanti hu to maine keh diya ki main nahi jaanti.
Q. Beta batao fir kya hua?
Ans Fir unhone us uncle ko bahut maara aur log bhi ikatha ho gaye.
Q. Beta fir kya hua?
Ans wahan per police aa gai aur meri mummy ko bhi bulwaya. Police mujhe hospital le gai . Wahan per bhi maine doctor ko ye sab baat batai thi.
Q. Beta kya aap pehle bhi court main aaye thi?
Ans Haan, ek aunty ke saamne sab baatein batai thi ( the witness is referring to recording of her statement U/S 164 CrPC by Ms. Meenu Page 5 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place Kaushik, Ld. MM).
At this stage, as sealed envelope duly sealed with the seal of MKB has been taken out from the judicial file and proceedings U/S 164 CrPC are taken out from it. The said statement / proceedings U/S 164 Cr.P.C. has been shown to this witness on which she identifies her signatures on both pages at point A. The said statement is Ex. PW 1/A. Q. Beta kya aap un uncle ko pehchan sakte ho?
Ans Haan.
Accused Shashi is present in the court today ( correctly identified by the witness through the design of wooden partition). XXX XXX XXX by Sh. Rajnish Antil, Ld. Amicus Curiae for the accused.
Us samay park main aur bhi bachhe khel rahe the. Main nahi keh sakti ki un bachon main ek bacha Rahul aur ek bachi Shweta bhi the. Ye kehna galat hai ki khelte khelte mere waha bachon se jhagda ho gaya tha. Ye kehna galat hai ki jo uncle peechhe baithe hai ( accused) ne mujhe Page 6 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place samjhaya tha ki jhagda nahi karte. Ye kehna galat hai ki jo do uncle baad main aaye the unhone mujh se kuch nahi puchha aur accused ko aate hi dande se maarna shuru kar diya. Ye kehna sahi hi ki do uncle park mai aaye the. Ye kehna sahi hai ki un do uncle ne aur bachon se kuch nahi puchha. Ye kehna galat hai ki aaj court ke bahar policewali aunty ne mujhe sikhaya padhaya tha ki mujhe kya bayan dena hai. Ye kehna galat hai ki pehle bhi maine policewali aunty ke kehne per baatein batai thi. Ye kehna galat hai ki main aaj court main jhotha bayan de rahi hu."
PW2 is the mother of the victim who stated that at about 67 months ago at about 12.00/1.00p.m., Police along with her daughter P reached her beauty parlour and informed that one person tried to kidnap her. On inquiry the victim told her that when she was playing in Madrasi Park, one uncle offered her Kurkure and took her to lonely place. Police apprehended that uncle. Victim child was brought to PS and the statement of her mother was recorded. Police took the victim child to Mahavir hospital where she was medically examined. In the cross examination, she admitted that number of Page 7 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place children were playing in Madrasi park but she denied the suggestion that accused has been falsely implicated as he intervened in the quarrel amongst the children in the park or that accused was mistaken as a thief.
PW3 is witness from the school of the victim who proved onrecord date of birth of the victim as 09.08.2009 on the basis of the affidavit given by her mother in the first attended school. There is no material cross examination.
PW4 is the doctor who examined the victim as well as the accused at Bhagwan Mahavir hospital. There is no cross examination.
PW5 is the record keeper of PCR, Police Headquarter, who proved on record a PCR call by which DD 19A was recorded. There is no cross examination.
PW6 is the Duty Officer who has proved on record the FIR Ex.PW6/B and endorsement on rukka Ex.PW6/C and DD no. 19A as Ex.PW6/A. There is no material cross examination.
PW7 is the public person Govind who stated that on 09.04.2016, his mother Maya Devi saw a person entering a dilapidated room near Page 8 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place shamshan ghat and she called him to inquiry as to why that person has entered a room with small girl child. He along with brother in law Manish reached near that room and asked that person in loud voice to come out and after some time, he came out and told that child is of his aunty but on inquiry, the child stated that this person is a stranger. They brought that person to police post and narrated the incident. Accused was arrested. He was cross examined at lengh but he denied that accused was falsely implicated and accused scolded the victim as she was fighting with other children in the park and due to misunderstanding he was apprehended.
PW8 is the IO who proved on record the site plan Ex.PW8/A and arrest memo Ex.PW8/B, personal search memo Ex.PW8/C and her application to record the statement of victim Ex.PW8/D and there is nothing in the cross examination to hold that she did not conduct fair investigation.
PW9 is the Ct. who accompanied the victim for medical to the hospital. There is no cross examination.
PW10 is the Ct. who joined the investigation with the IO and supported the version of IO. There is no relevant cross examination. Page 9 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place
5. It has been argued for the accused by Sh. Rajneesh Antil, Ld. Amicus Curiae that victim or her mother did not mention about the date of the alleged incident, even the original statement Ex.PW2/A is without mentioning the date of incident, PW7 is not an eye witness and reached after the incident and tea stall vendor near the place of incident was not made as a witness and further the PCR form shows that accused brought the victim twice and as such prosecution has failed to prove the offence beyond reasonable doubt.
On the other hand, Ld. APP has argued that victim is consistent throughout, her age has been proved beyond reasonable doubt and conviction can be based on the sole testimony and prosecution has proved the offences beyond the reasonable doubt.
6. I have heard the submission and perused the record.
7. As far as the age of the victim is concerned, through her school Page 10 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place proved by PW3, her date of birth has been proved as 09.08.2009 which was recorded on the basis of the affidavit given by mother of the victim at the time of her admission in first attended school. There is no reason to disbelieve the date, the prosecution has such has proved that victim was minor on the date of incident.
8. Coming to the main offence, the victim in her statement in the court as well as u/s 164 Cr.P.C. has stated that accused took her to some distance before one aunty saw her and accused was apprehended. She also clarified that accused did not do anything with her. She consistently stated that she was taken away by the accused towards Shamshan ghat and one uncle called by that aunty rescued her. She also identified the accused in the court. She is reliable witness and there is no reason to disbelieve her. It is a well settled law that the conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court, after careful scrutiny of its evidence, In case of Dattu Ramrao Sakhare Vs. State of Maharashtra (1997) 5 SCC 341, it was held that, Page 11 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place " A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his / her demeanor must be like any other competent witness and there is no likelihood of being tutored."
9. The prosecution has as such proved commission of offence punishable u/s 363 IPC beyond reasonable doubt. Accused is convicted for Page 12 of 13 FIR No. 293/2016 : State V/s Shashi: PS Subhash Place this offence.
10. As far as offence punishable u/s 366 IPC is concerned, there is no evidence on record to show that accused has any intention to had illicit intercourse with victim child. The victim only stated that accused took her to some distance towards shamshan ghat where he was apprehended by an uncle called by an aunty. She did not state that accused took her to an abandoned dilapidated room as stated by PW7. The prosecution has failed to prove the offence punishable u/s 366 IPC and as such accused is acquitted for offence u/s 366 IPC.
(Announced in the open ) (Amit Kumar)
(Court on 07.05.2018) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
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