Delhi District Court
State vs Mohd.Rashid on 12 April, 2018
: 1 :
IN THE COURT OF MS KAVERI BAWEJA
ADDITIONAL SESSION JUDGE05 (CENTRAL)
TIS HAZARI, DELHI
Sessions Case No.: 27685/16
State versus Mohd.Rashid
S/o Mohd.Salauddin
R/o H.No.1386, Chatta Rajan,
Farash Khana, Hauz Qazi,
Delhi110006
Case arising out of:
FIR No. : 71/2013
Police Station : Hauz Qazi
Under Section : 506 IPC & Section 8/12 POCSO Act
Date of Institution : 05.08.2013
Judgment reserved on : 23.03.2018
Judgment pronounced on : 12.04.2018
JUDGMENT
Case of the Prosecution:
1. The case in hand was registered on the complaint of victim 'Z.A' (name withheld in order to protect his identity), wherein he had stated that he is residing at Chhata Rajaan, Farash Khana, Hauz Qazi, Delhi and is a student of class 10 th. He further alleged that Accused SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 2 : Rashid, who used to reside in his gali and was also running a general store, used to smile upon seeing him. The complainant further stated in the complaint that about 22 ½ month prior to the registration of the case, both of them had exchanged their mobile numbers and that Accused used to call him in the night, however, he used to refuse for the same. Thereafter, Accused used to call him at his general store and when the complainant used to go there, the Accused used to do dirty talks with him and also used to perform obscene acts with his body. It is also alleged in the complaint that one day on the false pretext, Accused took him to India Gate and had done 'Gandi Gandi baatein and harkatein"
with him. The complainant upon disliking the same, stopped meeting the Accused. However, Accused used to follow him to the school and he used to touch and fondle his penis. Perturbed by his said acts, the complainant could not perform well in his 10 th exams and also did not told to his parents. It is also alleged in the complaint that when the complainant stopped meeting Accused, the Accused used to threat him by calling him and through SMS too.
2. On the basis of the aforesaid complaint a case under Section 8/12 of POCSO Act and Section 506 IPC as got registered against the SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 3 : Accused. During the course of investigation, the Accused was arrested at the instance of the Accused and from the personal search of Accused Rs.2300/, Voter ID Card and PAN Card were recovered, which were sent to the Malkhana. Mobile phones of victim and Accused were also taken into possession, statement of victim was also recorded under Section 164 Cr.PC, CDR and CAF of the mobile phones of Accused as well as Victim were collected, age proof documents of the victim were verified from the school and mobiles of accused and victim were sent to FSL for expert opinion. Thereafter, after completion of investigation, charge sheet was filed before the court.
Charge:
3. On the basis of material on record, Accused Mohd.Rashid was charged for the offences under Sections 363/506 IPC and Sections 10/12 POCSO Act vide order dated 04.10.2013. Accused pleaded not guilty and claimed trial when the aforesaid were read over to him.
4. In order to prove its case, Prosecution examined 12 witness besides CW1 Mahender Singh Niranjan, Jr.Forensic/Assistant Chemical Examiner, FSL Rohini, Delhi, who has been summoned by the court vide order dated 09.02.2018.
SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 4 : Prosecution Evidence:
Public Witnesses:
5. The victim 'Z.A' was examined as PW2. For the sake of brevity and in order to avoid repetition, the deposition of PW2 Victim 'Z.A' shall be discussed in detail later on in the course of the judgment.
6. PW1 is 'S.A', father of the victim. He deposed that he knows Accused Mohd.Rashid as he is residing in their gali. He further deposed that he noticed that his son 'Z.A.' was perturbed for two days and that he noticed that he was perturbed for the last 2 to 2½ months from the date of lodging of FIR. On 06.05.2013, his wife told him that Accused Mohd.Rashid was harassing his son. Accordingly, he informed the police and the police had registered the FIR on the statement of his son.
7. PW1 further deposed that on the same day, Police arrested the Accused from his shop in his presence at his pointing out. PW1 also proved the arrest memo of the Accused as Ex.PW1/A and that of seizure memo of the Accused as Ex.PW1/B, whereby two mobile phones were seized by the police at the instance of the Accused. PW1 also supplied the copy of admission card of 10 th Class and copy of SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 5 : school ID Card of his victim son and also deposed that the date of birth of his son is 05.05.1998. PW1 also identified the aforesaid mobile phones in the court and proved the said as Ex.P1 & Ex.P2.
8. PW3 is Nabi Ahmed, LDC of Anglo Arabic Sr. Secondary School, Ajmeri Gate, Delhi, who had brought the admission record of victim boy. He deposed that as per record, the victim 'Z.A.' was admitted in the school on 25.04.2008 in 06 th Standard vide admission No.15520. PW3 also proved the copy of admission register and proved the same as Ex.PW3/A. PW3 also proved the affidavit in support of date of birth of victim 'Z.A.' as Ex.PW3/B, which was given by the father of victim 'Z.A.' at the time of his admission in the school.
9. PW3 also proved the copy of admission form and that of letter written by the school Principal to the SHO about the particulars of victim 'Z.A.' including his date of birth as Ex.PW3/C and Ex.PW3/D respectively.
10. PW8 is Sh.Rajeev Ranjan, Nodal Officer, TATA Tele Services Ltd. He brought the original CAF pertaining to mobile number 9210899726, issued in the name of father of the victim 'S.A'. He proved the attested copy of CAF as Ex.PW8/A. PW8 also brought the call SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 6 : detail pertaining to the aforesaid mobile number from 02.02.2013 to 05.05.2013 running into five pages from back to back and proved the same as Ex.PW8/B. PW8 also proved the certificate under Section 65B of Indian Evidence Act issued in this regard and that of a forwarding letter dated 20.05.2013 as Ex.PW8/C and Ex.PW8/D respectively.
11. PW9 is Sh.Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. He brought the original CAF pertaining to mobile number 9953494465, issued in the name of Vijender S/o Bheem Singh. He proved the attested copy of CAF as Ex.PW9/A, bearing the signatures of Sh.Anuj Bhatia, the main Nodal Officer at point A. PW8 also proved the attested copy of election card which was submitted at the time of issuance of aforesaid mobile connection as Ex.PW9/B, which also bear the signatures of Sh.Anuj Bhatia at point A. This witness also brought the call detail pertaining to the aforesaid mobile number from 01.02.2013 to 05.05.2013 running into 57 pages and proved the same as Ex.PW9/C. PW9 also proved the certificate under Section 65B of Indian Evidence Act issued in this regard bearing the signatures of Sh.Anuj Bhatia at point A as Ex.PW9/D. PW9 further deposed that he SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 7 : identify the signatures of Sh.Anuj Bhatia as he had seen him while signing various documents.
12. PW10 is Sh.Amar Nath Singh, Nodal Officer, Idea Cellular Ltd. He brought the original CAF pertaining to mobile number 8743926213 issued in the name of Sh.Umardaraj Ahmed S/o Abdul Kayum. He proved the photocopy of said CAF as Ex.PW10/A. PW10 also proved the photocopy of ration card which was submitted at the time of issuance of aforesaid mobile connection as Ex.PW10/B. This witness also brought the CDR pertaining to the aforesaid mobile number from 01.01.2013 to 05.05.2013 and proved the same as Ex.PW10/C (Colly), bearing the signatures of Sh.Pawan Singh. PW10 also proved the certificate under Section 65B of Indian Evidence Act issued in this regard bearing the signatures of Sh.Pawan Singh at point A as Ex.PW 10/D. PW10 lastly deposed that he identify the signatures of Sh.Pawan Singh as he had seen him while signing various documents during the course of his duty.
13. PW11 is Sh.Rakesh Soni, Asstt. Manager, Store Wireless Service, Karol Bagh Telephone Exchange. He produced the original customer application of phone number 9013210371, which was issued in SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 8 : the name of Rashid S/o Saluddin. PW11 also proved the copy of the said application form as Ex.PW11/A. He also deposed that at the time of issuance of the said connection in the name of Rashid, he filed the attested copy of election card in the court. He further deposed that he had also furnished the copy of CDR to the police from 01.02.2013 to 05.05.2013 after generating the same from the computer and proved the same as Ex.PW11/B. The copy of the cell ID list was also furnished by him to the police and the copy of the same is Ex.PW11/C bearing his signatures at point A. PW11 also proved the certificate under Section 65B of Indian Evidence Act as Ex.PW11/D. Police Witnesses:
14. PW4 HC Kanwar Pal deposed regarding registration of FIR of the case on 06.05.2013 on receipt of rukka from SI Suman and proved the copy of the FIR as Ex.PW4/A and that of his endorsement on the rukka as Ex.PW4/B. He also proved the certificate under Section 65B issued in this regard as Ex.PW4/C.
15. PW5 Ct.Vicky deposed regarding collection of four mobile phones in a sealed pullanda vide road certificate on 28.05.2013 and after depositing the same, handing over its acknowledgment and copy of road SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 9 : certificate to the MHC(M).
16. PW6 HC Om Prakash deposed that on 06.05.2013, he after receiving the copy of FIR and original rukka from Duty Officer, delivered the same to SI Suman at Farashkhana. He further deposed regarding arrest of Accused Rashid from his house vide arrest memo Ex.PW1/A bearing his signatures at point C. He also correctly identified Accused Rashid in the court and also proved the personal search memo of Accused Rashid as Ex.PW6/A whereby Accused had produced two mobile phones make Nokia (one of black colour and the other of blackgrey colour) from his house. Seizure memo of the said mobile phones has also been proved by PW6 as Ex.PW6/B.
17. PW12 IO/SI Suman deposed regarding having conduced the investigation of the case and after completion of investigation, submission of charge sheet in the court. PW12 also correctly identified the case property when shown to her at the time of her deposition in the court.
18. Besides the aforesaid witnesses the court, also examined Sh.Mahender Singh Niranjan, Jr.Forensic/Assistant Chemical Examiner, FSL Rohini as CW1. This witness deposed in place of Dr.Narayan Waghmare, who had prepared the report Ex.PW12/H and was earlier SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 10 : working as Assistant Director at FSL Rohini and has been transferred from there. CW1 identified the signatures of Dr.Narayan Waghmare on the report dated 20.09.2013 already Ex.PW12/H as he had worked under Dr.Narayan Waghmare.
19. CW1 further deposed that as per said report, the following two mobile phones along with their sim cards were examined by Dr.Waghmare:
1. Nokia (Model No.311) bearing IMEI No.354133053749793, which was marked as Ex.MP1 with one vodafone sim card marked as SC1.
2. Samsung (Model No.GTB3210) bearing IMEI No.359658031180179, which was marked as Ex.MP3 with one Idea sim card marked as SC3.
20. Dr.Wagmare had also examined the following two sim cards:
1. SC2 which was in Nokia mobile phone bearing IMEI No.358633046825804 Ex.MP2
2. SC4 which was in make Hauwei mobile phone bearing ME ID No.A00000336627B3 mark MP4.
21. CW1 also deposed that, the mobile phones MP2 and MP4 could not be analyzed as the analysis facility for the said mobile phones is not available in FSL, Rohini, Delhi as their software was not supporting SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 11 : the model number of the said mobile phones.
22. CW1 further clarified as under: Annexure A part of the said report pertains to MP1.Column 2 of the chart in Annexure A represents the mobile number from which SMS was either received or sent on mobile phone MP1 and shows the incoming and outgoing text messages on MP1. For example, at serial No.1 MP1 had sent the text mobile on mobile number 8743926213.
Annexure B pertains to mobile MP3.
Annexure C pertains to Sim Card SC1 which was in mobile phone Ex.MP1.
Annexure D pertains to Sim Card SC2 which was in mobile phone Ex.MP2.
Similarly, Annexures E & D are the reports pertaining to SC 3 & SC4 which were in mobile phones MP3 & MP4 respectively. Statement of Accused under Section 313 Cr.P.C.
23. In his statement recorded under Section 313 Cr.PC, Accused Rashid denied all the incriminating evidence put to him. He pleaded that he is innocent and have been falsely implicated in the present case. He further stated that he was running a General Store at 1064, Gali Rajan, Farash Khana, Delhi and that the father of the victim used to purchase groceries from him and when he requested the father of victim to make the payment for the same, he refused. Thereafter, he made several calls to the father of SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 12 : the victim for making the payment to him against the groceries purchased by him, but to no avail. Subsequently, the father of the victim even switched off his mobile phone and did not pay him for the purchases made by him till date.
24. Accused further stated that on one day, in the year 2013, he was called to Police Chowki Road Gran by one Constable Narender and he was given beatings by ASI Tohmad and Ct. Narender and thereafter his signatures were obtained by them forcibly on a blank paper. One Mukhbir namely Asad, who also resides in gali Rajan was also involved in his false implication in this case. The Accused prefer to lead evidence in his defence.
Defence Evidence :
25. Accused examined Sh.Aziz Ahmed as DW1. He deposed that he is residing in the same gali wherein the shop of Accused is situated and that he also have his shop of tailoring at the corner of the same gali. He further deposed that Accused has a shop of general store and that he had never seen the Accused quarelling with anyone except on one occasion, whereby Accused was having a quarrel with one person whom he do not know and that the Accused was asking that person for money. He also SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 13 : deposed that he had not seen the victim at the shop of the Accused. Arguments, Analysis & Findings:
26. I have heard arguments of Ld. Amicus Curiae representing Accused as well as Ld. Public Prosecutor and gone through the evidence on record.
27. The submissions made in the course of arguments may now be categorized as under for the sake convenience and for the purpose of brevity: Age of the Victim:
28. It is submitted by learned defence counsel that the age of the victim has also not been proved by the Prosecution and the offence under POCSO Act are thus not attracted in this case. In the course of arguments, my attention was drawn to the deposition of PW3, who produced the admission record of the victim. Learned defence counsel submitted that as per the testimony of PW3, the victim was admitted in the school in Class 6th on 25.04.2008. PW3 also deposed that at the time of admission, the father of the victim gave an affidavit in support of date of birth of his son, which is Ex.PW3/B.
29. It was argued by the defence that PW3 admitted in his cross SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 14 : examination that at the time of admission, no school leaving certificate of previous school or birth certificate of the victim issued by MCD was furnished and that the date of birth of the victim is mentioned in the school record on the basis of affidavit furnished by his father.
30. On the basis of the aforesaid evidence, it was vehemently argued by learned defence counsel that the age of the victim does not stand proved on record merely on the basis of the affidavit furnished by the father at the time of admission of the victim in Class 6th.
31. I have considered this submission, however, it is pertinent to note that the father of the victim, who was examined as PW1 was not crossexamined at all in this regard by the defence. In his deposition, PW 2, father of the victim categorically deposed that the date of birth of the victim i.e. PW2 is 05.05.1998. Not even a single suggestion was put to him to suggest that the date of birth of the victim is not 05.05.1998 or that the affidavit furnished by PW1 at the time of admission of the victim i.e. PW2 in school contained his incorrect date of birth.
32. In absence of any such rebuttal on the part of the defence to show that the date of birth of the victim as established from the record is incorrect, I am of the opinion that the testimony of PW3, coupled with the SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 15 : testimony of PW1 in respect of date of birth of the victim PW2, must be accepted as correct. Consequently, the prosecution, in my opinion, has been able to establish that the date of birth of the victim was 05.05.1998 and that at the time of alleged incident, he was below 18 years of age, implying thereby that the provisions of POCSO Act are very much applicable to the present case.
Testimony of the Victim:
33. At the outset, it may be relevant to analyze the testimony of the victim, who is undoubtedly the most important witness of the Prosecution. The victim 'ZA' stepped into the witness box as PW2 and deposed that the Accused is residing in his gali and is running general store. He further deposed that the Accused met him for the first time about 2½ months prior to lodging of the FIR and again met him after 23 days. Accused asked him for his mobile number but he refused. But on the repeated requests of Accused, the victim gave his mobile number to the Accused. Thereafter, after 23 days, Accused made a call to 'ZA' and called him downstairs, to which he initially refused, but when the Accused again made a call to him 23 times, the victim 'ZA' came downstairs and the Accused took him to Dal Mandi Park and on the insistence of Accused, SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 16 : he consumed cold drink. Accused also told him not to worry about the pocket money and further told him that he was like his younger brother. After 23 days, Accused again called the victim 'ZA' to his general store in the evening, where he offered him some eatables, to which he refused.
34. After a weeks time, Accused again called him to his general store in the evening and on that day, he touched the thigh of victim 'ZA' and also put his arm on his shoulder. PW2 'ZA' did not like the same and he returned to his home.
35. After few days, Accused made a call to PW2 and took him to India Gate on the pretext of buying clothes. After reaching India Gate, he touched his penis. Thereafter, the victim 'ZA' returned to his home and thereafter, he did not go to the shop of the Accused despite the repeated calls and text messages (SMS) of the Accused.
36. PW2 further deposed that one day, Accused took him to the third floor of the house of his maternal uncle located at Tilak Bazar, where no one was present at that time. Accused put off his pant forcibly and started shaking his penis. The witness further deposed that he got rid of himself and ran to his house, but the Accused threatened to kill him. He further deposed that on 05.06.2014, he made a complaint Ex.PW2/A, SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 17 : which bears his signatures at point 'A'. The victim also identified his signatures on the statement recorded under Section 164 Cr.PC in the course of investigation, which is Ex.PW2/B. He also identified the mobile phone Ex.P1 and also correctly identified the Accused.
37. PW2 further deposed that the Accused was arrested in his presence on 06.05.2013 vide arrest memo Ex.PW1/A, bearing his signatures at point 'B'.
38. Learned Prosecutor argued that the testimony of the victim along with other evidence led on record had established the guilt of the Accused beyond reasonable doubt and prayed that the Accused be convicted for the alleged offences.
39. On the other hand, learned defence counsel contended that the Accused is entitled to be acquitted in this case as the Prosecution has failed to prove its case. At the outset, it is contended by learned defence counsel that the complaint does not bear the signatures of the complainant. I am afraid this contention is liable to be rejected outrightly since it is contrary to the record of the case. The signatures of the complainant are not only present on the complaint Ex.PW2/A at point 'Z' but have also been duly identified by PW2 i.e. the victim in the course of his deposition in court. SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 18 :
40. It is further submitted by learned defence counsel that admittedly the shop of the Accused is located at Gali Rajan and that the father of Accused is running a tea stall in the corner of Gali Rajan, which is near the shop of Accused. It is submitted that PW2 also admitted in his crossexamination that if some one raises an alarm from the shop of Accused, the same would be heard at the tea stall of his father. It is further pointed out that even PW1, the father of the victim admitted in the course of his crossexamination that Gali Rajan is a crowded place and that in the said locality people also used to available till late night. Learned defence counsel thus argued on the basis of the said evidence that the Accused could not have been possibly committed the alleged acts with the victim PW2 in such crowded place, moreso, when the shop of the father of Accused was also nearby.
41. It is further submitted that admittedly the victim made no complaint to the father of the Accused or to any passerby or even raised any alarm when the Accused allegedly touched his thigh and shoulder in his shop. Further, the victim also admittedly did not make any complaint to his parents after he returned from India Gate or from the flat at Tilak Bazaar, where the Accused has allegedly harassed the victim. Learned SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 19 : defence counsel further submitted that the victim PW2 deposed in his crossexamination that he told the police about the incident that had allegedly taken place at India Gate and at flat on 06.05.2013. However, upon confronted with his statement Ex.PW2/A, wherein the incident of flat is not mentioned.
42. The next contention of the defence is that as per PW2, he had informed his parents before going to India Gate and had gone there with the permission of his parents, implying thereby that no such incident took place otherwise his parents would not have permitted him to go through.
43. On the other hand, learned Prosecutor submitted that the mere fact that the victim did not raise any alarm or made any complaint against the alleged act of the victim before he finally confided in his mother to hold that the victim has not deposed truthfully before this court.
44. Learned defence counsel further contended that the mother of the victim was not summoned and was dropped by the Prosecution. He submitted that as per the prosecution case, the father of the victim PW1 was informed of the alleged acts of the Accused by the mother of the victim and since she has not been produced in the witness box, the Prosecution case has suffered a major dent.
SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 20 :
45. I have considered the submissions and gone through the evidence on record. It is apparent on going through the crossexamination of PW2 that he clarified at the very outset upon being questioned as to why he did not make any complaint to his parents and stated that he did not make any complaint to his parents when the Accused alleged touched his body at his shop "due to shame". The shame and embarrassment which the teenaged boy must have felt upon being inappropriately touched and sexually harassed by the Accused is not incomprehensible and there is no reason why the court should disbelieve the reason spelt out by the victim for not making any complaint regarding the alleged acts of the Accused to his parents.
46. The victim further added that he initially ignored the incident in question when the Accused touched his thigh and shoulder. At this stage, it may also be pertinent to refer to his complaint Ex.PW2/A where the victim is stated that he stopped going to the Accused and that he started disliking the acts which Accused used to commit with him. He also stated in his complaint Ex.PW2/A that due to shame, he could not confide in his family members and started avoiding the Accused.
47. In these circumstances and the material on record I am unable SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 21 : to accept the contention of learned defence counsel that since the victim did not make any complaint to anyone including his parents prior to the day he confided in his mother, should be a ground to reject his entire deposition. The victim also testified that Accused had threatened to kill him.
48. The testimony of the victim must be analyzed from the perspective of a young boy and it is not hard to believe that it took him some time to gather courage and overcome his shame before he finally confided in his mother, who in turn informed his father PW1. I would also like to mention at this stage that the mere fact that the mother was not examined as a witness by the Prosecution also cannot be said to be fatal to the case of the Prosecution inasmuch as the father of the victim was examined as PW1 and he also testified before the court that he was informed by his wife i.e. mother of the victim as to what Accused was doing with his child i.e. PW2.
49. Pertinently, the testimony of PW1 to the effect that he was informed by his wife that Accused Rashid is harassing his son is unrebutted as PW1 was not examined at all in this regard. The unrebutted testimony of PW2, coupled with the testimony of PW1, thus clearly SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 22 : establishes that the child confided in his mother, who ultimately revealed the facts to the father of the child i.e. PW1, who took the victim to the Police Station and lodged the complaint Ex.PW2/A, on the basis of which the FIR in this case was registered. Thus, nonexamination of the mother of the victim cannot be said to have much bearing, as argued by the defence. Other Arguments:
50. The next contention of the defence that the testimony of the victim cannot be believed inasmuch as the Prosecution has failed to cite any witness, who could have seen the complainant sitting at the shop of the Accused and it is not safe to believe the story of the Prosecution and victim in the present case. This argument of the defence, in my opinion, is outrightly rejected inasmuch as the Accused would not have committed the alleged offence with the child victim in the presence of any witness.
51. The defence has further contended that the four places of incident cited by the Prosecution are the shop of the Accused, flat of maternal uncle of Accused, India Gate and the Dal Mandi. It is contended that India Gate is extremely congested place and there are so many police pickets, despite which the child admittedly did not convey any police official upon being harassed by the Accused at India Gate. In this regard, SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 23 : it may again be relevant to note that as per the child victim PW2, he had gone to India Gate along with the Accused after informing his parents. However, he returned from India Gate alone in one auto. In his examinationinchief itself, PW2 deposed that after the Accused touched him inappropriately at India Gate, he returned to his house and did not come to the shop of the Accused despite the fact that Accused made calls to him.
52. It is thus apparent from the deposition of PW2 that the victim though could not overcome his shame and informed about the offence committed by the Accused, however, he himself started avoiding the Accused. Similarly, he has deposed that when the Accused took him to the roof of a house located at Tilak Bazaar and again touched his private parts, he got rid of himself again gone to his house. Thereafter, he did not meet the Accused, who thereafter started extending threats to him.
53. Thus, upon a careful perusal of the deposition of the child victim, it appears that he has tried to explain the circumstances due to which he did not make any complaint to anyone and rather find his own way out of the situation by trying to avoid the Accused. Certainly, the child victim cannot be expected to behave like an adult and instantly make a SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 24 : complaint to the police and confide in his parents, as any reasonable adult person would do. The victim being minor withdrew into his shell and started avoiding Accused, but finally managed to overcome his shame and embarrassment and confided in his mother, as deposed by him.
54. Learned defence counsel also contended that though the victim cited in his statement recorded under Section 164 Cr.PC Ex.PW2/B as well as his testimony in court that the Accused also took him to flat at Tilak Bazaar, where he allegedly committed the aforesaid acts with him. However, the same finds no mention in the complaint Ex.PW2/A and thus is an afterthought.
55. It is well settled law that the FIR is not an encyclopedia of the entire facts and is an initial statement only to set the criminal process in motion. Although the effect of a statement made in the FIR at the earliest point of time should be given primacy, it would not probably be proper to accept that all particulars in regard to commission of offence in detail must be furnished.
56. In this regard, I may refer to a recent pronouncement of Hon'ble Apex Court in the case titled as Latesh @ Dadu Baburao SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 25 : Karlekar vs. The State of Maharastra in Crl. Appeal No.1301/2015 decided on 30.01.2018, in which it has been categorically held by the Hon'ble Apex Court as under: "The value to be attached to the FIR depends upon facts and circumstances of each case. When a person gives a statement to the police officer, basing on which the FIR is registered. The capacity of reproducing the things differs from person to person. Some people may have the ability to reproduce the things as it is, some may lack the ability to do so. Sometimes in the state of shock, they may miss the important details, because people tend to react differently when they come across a violent act. Merely because the names of the accused are not stated and their names are not specified in the FIR that may not be a ground to doubt the contents of the FIR and the case of the prosecution cannot be thrown out on this count."
Defence of the Accused:
57. The Accused in his statement recorded under Section 313 Cr.PC stated that he has been falsely implicated in this case as the father of the victim used to purchase groceries and that when he requested him to make the payment for the same, he refused. Accused further stated that he made several calls to him for making the payment against the groceries purchased by him, but to no avail. He also stated that one day in the year SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 26 : 2013, he was called to the Police Chowki Road Gran and was given beatings by the police and his signatures were obtained by the police forcibly on a blank paper. He further pleaded that one mukhbir namely Asad, who also resides in gali Rajan is also involved in his false implication in this case.
58. Before analyzing the deposition of the witness examined by the Accused in his defence, it may be pertinent to note that none of the said pleas were put by the defence to the father of the victim examined as PW
1. In the course of his crossexamination, the only suggestion put to him i.e. PW1 is that he used to he used to purchase grocery items from the shop of Accused, which the witness denied. Pertinently, PW2 also denied the suggestion that his father used to purchase grocery items from the shop of the Accused. In his entire crossexamination, the father of the victim was not even given any suggestion that he had not paid the money to the Accused for the grocery articles allegedly purchased by him from the shop of the Accused.
59. DW1 Aziz Ahmed was examined by the Accused in his defence. The witness stated that he is having a tailoring shop at the corner of the same gali where the shop of the Accused is situated. DW1 deposed SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 27 : that on one occasion was having quarrel with one person and that Accused was asking for money from him, but DW1 did not know now the name of that person. DW1 was crossexamined at length by the Prosecution and in his crossexamination he deposed that "I am not aware as to who is the victim in the present case. I do not even know the name of the victim." The victim examined by the Accused in his defence was thus, in my opinion, unable to support the plea of defence of the Accused inasmuch as he did not even know as to who owe money to the Accused and thus from his deposition, it cannot be derived that he was taking about the father of the victim i.e. PW1.
Evidence regarding Mobile Phones:
60. The next contention of the defence is that PW9 Nodal Officer from Vodafone Mobile Service Ltd. produced CAF pertaining to mobile number 9953494465 and as per the said record, the said mobile number was in the name of Vijender S/o Bheem Singh. It is submitted that the Prosecution has thus failed to prove that the said mobile number was subscribed in the name of the Accused or that the Accused was using the said phone inasmuch as the said Vijender has not been examined as a witness to establish that his mobile phone was used by the Accused. SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 28 :
61. Similarly, PW10 Nodal Officer, Idea Cellular Ltd. produced the CAF of mobile phone number 8743926213, which was issued in the name of Umardaraj Ahmed S/o Ahdul Kayum and thus there is no material on record to show that the said mobile phone was being used by the father of the victim.
62. I have considered the aforesaid submissions and I find myself in agreement with the arguments of the defence that the Prosecution has failed to establish that the mobile phone number 9953494465 was being used by the Accused or that the mobile phone number 8743926213 was being used by the father of the victim PW1. It is noteworthy that PW1 even in his examinationinchief had not deposed even once that he was using Mobile Number 8743926213, although he identified the mobile handset of make TATA DOCOMO. I am unable to subscribe to the contention of the Prosecution that since the sim card SC3 was found inside the mobile phone MP3 having number 8743926213 i.e. TATA DOCOMO Ex.P2, it must be presumed that the father of the victim PW1 was using the said mobile phone.
63. Similarly, I am unable to agree with the submissions that the Prosecution that since the sim card SC1 was found in mobile phone MP1, SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 29 : as per FSL report Ex.PW12/H, it must be presumed that the said mobile phone was being used by the Accused. I am of the considered opinion that it was essential that the Prosecution to show either the said mobile number was subscribed in the name of Accused and the father of the complainant respectively or the relevant witness should have testified that though the said mobile phones were subscribed in their respective names, however, they were being used by the Accused or the father of the victim, as the case may be.
64. However, I may hasten to add that in view of deposition of PW11, it stands proved on record that the mobile phone number 9013210371 was issued in the name of Accused. The CDR of the said mobile phone is Ex.PW11/B. The said mobile phone, as per the FSL report Ex.PW12/H is MP4, which was found containing sim card SC4. However, PW8 produced the CAF pertaining to mobile phone number 9210899726, which is in the name of Sarfaraj S/o Abdul Kayum i.e. father of the victim. The said mobile phone as per the FSL report Ex.PW12/H is MP4 having sim card SC4.
65. In the course of trial, Dr.Narayan Waghmare, who was Assistant Director, FSL, Rohini, Delhi was ordered to be summoned to SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 30 : prove the FSL report dated 20.09.2013 Ex.PW12/H. However, in his place CW1 Sh.Mahender Singh Niranjan, Jr. Forensic/Assistant Chemical Examiner, FSL, Rohini, Delhi appeared and he deposed that since Dr.Narayan Waghmare has been transferred from Delhi, he has been deputed to appear and depose in his place. He deposed that he can identify the signatures of Dr.Narayan Waghmare on the report Ex.PW12/H.
66. A careful perusal of the report Ex.PW12/H and its accompanying annexures would reveal the following:
a) Annexure 'A' pertains to mobile phone MP1 number 9953494465, which has not been proved to have been subscribed in the name of the Accused, as discussed above. Thus, any text message or call detail retrieved from his sim card SC1 cannot be related to the mobile phone being used by the victim, as claimed by the Prosecution.
b) Annexure 'B' pertains to MP3 i.e. mobile number 8743926213. However, the same has not been proved by the PW2 to have been registered in the name of father of the victim, as claimed by the Prosecution. Thus, the exchange of SMSes and phone calls from the said mobile phone also do not establish the case of the Prosecution.
c) Annexure 'C' is in respect of SC1 i.e. sim card, which was SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 31 : recovered from the mobile phone MP1. However, the same has also not been proved to have been subscribed in the name of Accused.
d) Annexure 'D' relates to SC2, which was found in MP2 i.e. mobile phone number 9013210371, which shows that two deleted text messages sent to mobile phone No. 8743926213 on 28.02.2012 and 30.08.2012. However, since the Prosecution has failed to prove that the said mobile number was subscribed in the name of father of the victim, Annexure 'D' to the Report Ex.PW12/H also does not come to the aid of the case of the Prosecution.
e) Annexure 'E' is in respect of SC3, which again is not connected to the mobile phone allegedly being used by the victim.
f) Annexure 'F' is in respect of SC4, which was recovered from MP4 i.e. mobile phone number 9210899726, which is subscribed in the name of father of the victim. However, no text message or call record of outgoing or incoming calls were recovered as per Annexure 'F' from the said sim card.
67. It is also noteworthy that as per report Ex.PW12/H, exhibit mobile phones marked Ext. "MP2" and "MP4" could not be analyzed as the analysis facility is not available in laboratory. SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 32 :
68. Thus, from a careful analysis of the report Ex.PW12/H, it appears that the Prosecution has not been able to establish that the Accused used to make calls or send text messages to the victim, as alleged.
69. However, at the same time, it must also be borne in mind that the lapse on the part of the Investigating Agency cannot be a ground for acquitting the Accused. Undoubtedly, the Investigating Agency in the present case has failed to take appropriate steps for ensuring that mobile Phones MP3 & MP4 were sent to proper agency, where the same could be analyzed despite the fact that it has been mentioned in the report Ex.PW 12/H that the facility for analysis of the said mobile phones is not available at FSL, Rohini, Delhi. Further, no steps were made by the Investigating Agency for the reasons best known to examine the person in whose name the mobile phone numbers were subscribed.
70. In this regard, I am supported in my view by the observations of Hon'ble Supreme Court in the case of Hema vs. State, thr. Inspector of Police, Madras, Criminal Appeal No. 31 of 2013 (Arising out of S.L.P. (Crl.) No. 9190 of 2011), decided on 7 th January, 2013 wherein the Hon'ble Supreme Court held: SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 33 : "It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth." [Para 13]
71. Similar view was also taken in the case of C. Muniappan and Others vs. State of Tamil Nadu, 2010 (9) SCC 567, where the Hon'ble Apex Court observed: "......The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 34 : of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
72. Be that as it may, I find that the Accused himself has stated in his statement recorded under Section 313 Cr.PC that he used to make calls on the mobile phone of the father of the victim. However, his plea that he used to make the said phone calls only to request the father of the victim PW1 to make payment for the groceries purchased by him, has not been proved on record. In these circumstances, not much importance can be attached to the fact that the Investigating Agency could not bring on record sufficient evidence to prove the contents of the text messages and the mobile calls admittedly made by the Accused on the mobile phone of the victim and his father.
Conclusion:
73. In the light of the above discussion and on the basis of evidence on record, I am thus of the opinion that the Accused had committed aggravated sexual assault upon the victim more than once and is thus liable to be convicted for offence punishable under Section 10 of POCSO Act.
74. From the evidence on record, it has also been established that SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 35 : the Accused took the minor victim boy to various places, as deposed by him, where be committed the aggravated sexual assault on the minor victim and thus committed offence of kidnapping punishable under Section 363 IPC.
75. In view of deposition of the victim, it also stands proved on record that the Accused had criminally intimidated him by threatening to kill him and thus thereby committed offence punishable under Section 506 IPC.
76. Accused Mohd.Rashid S/o Mohd.Salauddin is accordingly convicted for the offence punishable under Sections 10 POCSO Act and Sections 363/506 IPC.
77. Let Accused be heard on the point of sentence.
Announced in the open Court on 12.04.2018 (Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 36 : IN THE COURT OF MS KAVERI BAWEJA ADDITIONAL SESSION JUDGE05 (CENTRAL) TIS HAZARI, DELHI Sessions Case No.: 27685/16 State versus Mohd.Rashid S/o Mohd.Salauddin R/o H.No.1386, Chatta Rajan, Farash Khana, Hauz Qazi, Delhi110006 Case arising out of:
FIR No. : 71/2013
Police Station : Hauz Qazi Under Section : 506 IPC & Section 8/12 POCSO Act Judgment pronounced on : 12.04.2018 ORDER ON SENTENCE
1. Accused Mohd.Rashid S/o Mohd.Salauddin has been convicted for offence under Sections under Section 363/506 IPC and Section 10 of POSCO Act vide separate judgment dated 12.04.2018.
2. Learned counsel appearing for the above named Accused has filed an application for releasing the Accused on probation under Section 360 Cr.PC read with Section 4 of the Probation of Offenders Act, 1958.
3. I have heard the submissions at length made by learned counsel for the convict as well as learned Addl. PP representing the State.
4. It is contended on behalf of convict that he has clean antecedents SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 37 : and is about 30 years of age. It is further submitted that he has already remained in custody for about 21 days during the investigation, inquiry and trial of this case and has been regularly appearing on each and every date during the course of trial. It is further submitted that there is no specific provision under the POCSO Act which bars or restricts the application of the Probation of Offenders Act and it is prayed that considering the circumstances of the convict, be may be released on probation.
5. In support of his submissions, learned counsel for the convict also placed reliance on the documents annexed with the application to show that the convict is Asthama patient and is undergoing treatment for the same at Lok Nayak Hospital, Delhi. His father is also stated to be Asthama patient and mother is a diabetic, besides being Thyroid patient. It is further submitted that the applicant was working as unskilled employee earning Rs.8000/ per month and is also having liability of marrying his sister who is about 18 years of age.
6. Learned counsel for the applicant/convict placed reliance on the following judgments in support of his submissions for releasing the convict on probation:
a) Isher Das vs. The State of Punjab reported as AIR 1972 SC 1295;
b) Jitender & Anr. vs. Manohar Lal & Ors., (Crl. Appeal No.924/2010) decided on 12.02.2014 (Delhi High Court);
c) Bishnu Dev Shaw vs. State of West Bengal, reported as AIR 1979 SC 964;
d) Pakhar Singh vs. State of Punjab being Crl. Revision No.1927/2006 decided on 24.10.2006 (Punjab & Haryana High Court) and
e) Naresh Kumar vs. State reported as IV (2001) CCR 244
7. On the other hand, learned Public Prosecutor strongly opposed the SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 38 : submissions made by the counsel for the convict. It was submitted by the Prosecution that the convict has been found to have committed the aforesaid offences with a minor boy and with a view to curtail the increasing trend of offences against the minor victims, it is necessary that he be awarded maximum prescribed punishment, so as to act as a deterrent for society at large.
8. The prayer for releasing the convict on Probation has also been opposed on the ground that the same is not legally permissible in view of the fact that Section 10 of POSCO Act prescribes minimum punishment of 5 years, thus disentitling the convict to be released on probation.
9. I have considered the submissions made before me and gone through the relevant case record. In a recent pronouncement, the Hon'ble High Court of Delhi in a case titled as State vs. Sunil being Crl. Appeal No.288/2017 decided on 02.05.2017, while relying on a ruling of Hon'ble Supreme Court in case titled as Shyam Lal Verma vs. CBI, (2014) 15 SCC 340, it has held that in cases where a specific provision prescribe a minimum sentence, the provisions of the Probation of Offenders Act cannot be invoked.
10. In the present case, besides being convicted for the offence punishable under Section 363 & 506 IPC, the above named convict has also been convicted for the offence punishable under Section 10 of POSCO Act. The provision of Section 10 POSCO Act prescribes a minimum punishment of 5 years and maximum punishment of 7 years, in addition to payment of fine.
11. In view of the aforesaid rulings of the Hon'ble Apex Court viz., Shyam Lal Verma vs. CBI (Supra) and State vs. Sunil (Supra), I see no ground to release the convict Mohd. Rashid on probation, as prayed. The application filed by the convict in this regard is accordingly dismissed. SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 39 :
12. I have made inquiries from the convict regarding his status and have also considered his submissions made in this regard in his application for probation. It is stated that he is working as unskilled employee earning Rs.8000/ per month and is also having liability of marrying his sister who is about 18 years of age besides his aged parents to support.
13. Having regard to the gravity of the offences committed by the above named convict and with a view to ensure that adequeate sentence commensurate with the offences proved to have been committed by the Accused is awarded to him, I am of the opinion that the above named convict is liable to be sentenced as under:
a) For the offence punishable under Section 10 POCSO Act, the above named convict is directed to undergo RI for a period of 05 years in addition to payment of fine of Rs.3000/ In default of payment of fine, he shall undergo SI for 01 year.
b) For the offence punishable under Section 363 IPC, the above named convict is directed to undergo RI for a period of 03 years in addition to payment of fine of Rs.2500/. In default of payment of fine, he shall undergo SI for 03 months.
c) For the offence punishable under Section 506 IPC, the above named convict is directed to undergo RI for a period of 02 years in addition to payment of fine of Rs.2000/. In default of payment of fine, he shall undergo SI for 02 months.
14. All the above sentences shall run concurrently. The convict shall be entitled to benefit of Section 428 CrPC, if any. In view of pronouncement of the Hon'ble High Court in case of Daya Prasad Pal @ Mukesh vs. State in Crl. Appeal No.538/2016 decided on 09.12.2016, it is directed that the fine if SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi : 40 : paid by the Accused be given to the victim as compensation.
15. In addition thereto, I recommend payment of adequate compensation to the victim in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DLSA, Central District for necessary action.
16. Copy of the judgment and order on sentence be supplied to the convict free of cost.
Announced in the open Court on 19.04.2018 (Kaveri Baweja) Additional Sessions Judge05(Central) Tis Hazari Courts: Delhi SC No. 27685/16 State Vs Mohd.Rashid FIR No. 71/2013 PS Hauz Qazi