Delhi District Court
State vs Mr.Abhay Dixit -:: Page 11 Of 11 ::- on 7 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 : 57799/16
Old Sessions Case Number : 87/2016.
State
versus
Mr. Abhay Dixit
Son of Mr.Akshay Dutt Dixit
Resident of G-76, Rajdhani Park,
Nangloi, Delhi.
First Information Report Number : 301/2014.
Police Station : Nangloi
Under sections 354-A / 354-D of the Indian Penal Code
and sections 12 of the POCSO Act.
Date of filing of the charge sheet : 11.04.2016.
Arguments concluded on : 07.07.2017.
Date of judgment : 07.07.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Accused Mr.Abhay Dixit on bail with counsel,
Mr.Rakesh Rajmurty, Mr.Nagender Singh and Mr.C.P.
Dubey.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Mother of the prosecutrix.
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New Sessions Case Number : 57799/16
Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14
Police Station : Nangloi
Under sections 354-A/354-D of the Indian Penal Code
and section 12 of the POCSO Act.
State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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JUDGMENT
1. Mr. Abhay Dixit, the accused, has been charge sheeted by Police Station Nangloi for the offences under sections 354 A / 354D of the Indian Penal Code (hereinafter referred to as the IPC) and under section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Abhay Dixit has been prosecuted on the allegations that on unknown dates and time but for the last few days prior to the registration of the FIR on 03.05.2014, within the jurisdiction of Police Station Nangloi, he was repeatedly following the prosecutrix (a minor born on 15.04.1998) whenever she went to her school and he insulted her by using filthy language (gandi gandi galinyan), assaulted her, repeatedly caught hold of her hand; on unknown dates and time and also on 26.02.2014 in the afternoon, when she came to his residence to watch television, he had shown porn movies to her and had threatened 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 predecessor on 28.05.2016.
New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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4. After hearing arguments, charge for offences under section 12 of the POCSO Act in the alternative under section 354 D of the IPC, under section 10 of the POCSO Act in the alternative under section 354 of the IPC, under section 12 of the POCSO Act in the alternative under section 354 A of the IPC and under section 506 of the IPC was framed against accused Mr.Abhay Dixit vide order dated 12.08.2016 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. New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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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 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 Abhay Dixit, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused, who was her neighbor. She has deposed that "He has not committed any offence against me."
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. She has admitted signing the complaint (Ex.PW1/A) but she has denied the contents New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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of the complaint. She has admitted appearing before the learned Metropolitan Magistrate and has admitted her signatures on the statement under section 164 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) but has denied the contents of the same stating that "I was threatened by my landlord to make the statement".
11.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that the accused is innocent and has not committed any offence against me."
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 "I do not know the nature of allegations leveled by the prosecutrix in the complaint...." She has been cross examined by the Additional Public Prosecutor for the State and nothing material for the prosecution came forth. She has deposed that "The prosecutrix had not informed that accused follow her while she went out from the house . She did not inform me accused had shown him obscene pictures on the T.V and on his mobile phone. She did not inform me that accused had caught hold her hand and asked her to marry with him." In her cross examination on behalf of the accused, the mother of the prosecutrix Ms.Y (PW2) has deposed New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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that "It is correct that the accused is innocent and he has not committed any offence against my daughter."
13.Both the witnesses PWs 1 and 2 have not deposed an iota of evidence of accused Mr.Abhay Dixit that he committed the offences of sexual harassment, stalking, assaulting, outraging the modesty of the prosecutrix and threatening her against disclosing about the offences to anyone.
14.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.
15.The statement under section 313 of the Cr.P.C of the accused New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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Mr.Abhay Dixit 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.
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 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 New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016. First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act. State versus Mr.Abhay Dixit -:: Page 11 of 11 ::-
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and unworthy of credence and in the absence of special circumstances no conviction can be based on 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). New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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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 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.Abhay Dixit. 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.Abhay Dixit is guilty of the charged offences under section 12 of the POCSO Act in the alternative under section 354 D of the IPC, under section 10 of the POCSO Act in the alternative under section 354 of the IPC, under section 12 of the POCSO Act in the alternative under section 354 A of the IPC and under section 506 of the IPC.
23.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 03.05.2014, within the jurisdiction of Police Station Nangloi, accused Mr.Abhay Dixit was repeatedly following the prosecutrix (a minor born on 15.04.1998) whenever she went to her school and he insulted her by using filthy language (gandi gandi galinyan), assaulted her, repeatedly caught hold of her hand; on unknown New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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dates and time and also on 26.02.2014 in the afternoon, when she came to his residence to watch television, he had shown porn movies to her and had threatened 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.Abhay Dixit for the offences of sexual harassment, stalking, assaulting, outraging the modesty of the prosecutrix and threatening her against disclosing about the offences to anyone.
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.Abhay Dixit 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.Abahy Dixit for the offences under section 12 of the POCSO Act in the alternative under section 354 D of the IPC, under section 10 of the POCSO Act in the alternative under section 354 of the IPC, under section 12 of the POCSO Act in the alternative under section 354 A of the IPC and under section 506 of the IPC.
New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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26.Consequently, accused Mr.Abahy Dixit is hereby acquitted of the charges for the offences of sexual harassment, stalking, assaulting, outraging the modesty of the prosecutrix and threatening her against disclosing about the offences to anyone punishable under section 12 of the POCSO Act in the alternative under section 354 D of the IPC, under section 10 of the POCSO Act in the alternative under section 354 of the IPC, under section 12 of the POCSO Act in the alternative under section 354 A of the IPC and under section 506 of the IPC. He is hereby acquitted of the charge offences under the POCSO Act and in the alternative under the offences under 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.
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 New Sessions Case Number : 57799/16 Old Sessions Case Number : 87/2016.
First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of July, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
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First Information Report Number : 301/14 Police Station : Nangloi Under sections 354-A/354-D of the Indian Penal Code and section 12 of the POCSO Act.
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