Delhi District Court
Sc No. 245/17 State vs . Mohd. Intiyaj @ Salman on 25 July, 2017
SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL COURT : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 245/17)
Unique Identification No. DLNT010055832017
FIR No. 82/17
Police Station Jahangir Puri
Under Section 363/376 IPC &
4 POCSO Act
State V/s Mohd. Intiyaj @ Salman
S/o Mohd. Ayub
R/o H.No. 246/51 A, East School Block,
Mandawali, Fazal Pur, Delhi.
......Accused
Date of institution 03.05.2017
Date of arguments 25.07.2017
Judgment Pronounced on 25.07.2017
Decision Acquitted
Judgment : FIR No. 82/17 page 1 of 11
SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman
J U D G M E N T
1.The accused Mohd. Intiyaj @ Salman is facing trial in the present case on allegations of having kidnapped and committed penetrative sexual assault upon the prosecutrix S (identity withheld), aged about 12 years.
2. The facts in brief, which are borne out from the record are that on 23.02.2017 the complainant F (identity withheld) reached at the PS Jahangir Puri and made a complaint that she alongwith her family is residing at the given address, and is a housewife. She complained that her daughter S, aged about 12 years, was missing from 22.02.2017 at about 1.30 PM, and showed her apprehension that accused Salman, who works with Mohd. Naeem, had enticed and kidnapped her. She wanted legal action in the case.
3. Later on the same day i.e. 23.02.2017, complainant F produced her missing daughter S before ASI Ram Chander in the police station, who reported the said information regarding recovery of prosecutrix S, at 100 number. Prosecutrix S was taken to BJRM Hospital for her medical examination, where her MLC No. 130363/17 was prepared, but the victim refused for her internal medical examination. Official from NGO was called and the prosecutrix was got counselled. The clothes of the victim, which she was wearing at the time of incident, were taken into possession and converted into pullinda, which were sealed with the seal of S.V., and a case u/s 363/376 IPC & 4 POCSO Act Judgment : FIR No. 82/17 page 2 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman was registered vide the instant FIR bearing no. 82/17 dated 23.02.2017.
4. During investigation, on the pointing out of the sister in law (Bhabhi) of the victim, namely Ms. R, accused Mohd. Intiyaj @ Salman was apprehended and interrogated, and later arrested vide his arrest memo and personal search memo. Accused was got medically examined at BJRM Hospital, vide MLC No. 130443/17, and his statement u/s 161 CrPC was recorded. Prosecutrix S was produced before the Ld. MM and her statement u/s 164 CrPC was got recorded, wherein she stated that at about 2.00 PM, accused Salman approached her and told her that her grandmother was calling her, and when she accompanied the accused, he took her to Anand Vihar, where he had done wrong act with her and had threatened her not to disclose about the said act of his, to anyone. During investigation, age proof of the victim was obtained, and after completion of the investigation, the chargesheet was filed in the Court.
6. On appearance, the accused was supplied with the copy of the chargesheet and other documents. After perusal of the chargesheet, the documents, and hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused, since primafacie case against the accused was made out, he was charged with the offences punishable u/s 363 IPC and u/s 4 POCSO (Protection of Children from Sexual Offences) Act, 2012 and in alternatively u/s 376 (2) (i) IPC, on 12.05.2017, to which accused pleaded not guilty and claimed trial.
Judgment : FIR No. 82/17 page 3 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman
7. To substantiate its case, the prosecution examined the victim S, aged about 16 years, as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim to give rational answers, on being satisfied, the statement of the victim was recorded, wherein PW 1 / victim S deposed that she was beaten up by her mother as she (PW 1) refused to do the work, and out of the anger, she went to the house of maternal aunt (Mousi) at City Park. Despite her maternal aunt asking PW 1 to go back, she did not go to her home but slept there overnight. On her return to her home on the next day, she found that accused, under the influence of liquor, was quarreling and beating her mother. On the asking of her mother, PW 1 went to the police but did not lodge any complaint. She even denied that her statement was got recorded before the Judge Sahab (Ld. MM), however, she identified her signature at point A on the statement u/s 164 CrPC Ex. PW 1/A.
8. Since the witness / PW 1 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 1 admitted that she had signed at point A on statement u/s 164 CrPC Ex. PW 1/A in the Chamber of the Judge Sahab (Ld. MM) and that whatever she had stated to the Ld. MM, the same was reduced into writing, in her statement. She volunteered that she was pressurized by the police and people of her locality to depose against the accused. She denied that she told to the Ld. MM that accused had taken her to Anand Vihar and committed wrong act with her Judgment : FIR No. 82/17 page 4 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman and also threatened her not to disclose about the same to anyone. She denied the suggestion that she has compromised with the accused and in order to save him, she was deposing falsely in the court. She denied that the accused had committed sexual assault upon her but in order to save him, she was deposing falsely.
9. During her crossexamination by Ld. Counsel for the accused, PW1 admitted it to be correct that the accused had not done anything wrong with her and due to this reason, she had refused for her internal medical examination. She admitted it to be correct that the accused had a quarrel with her mother, on the day of incident, and in order to teach him a lesson, she had got the instant case registered against him, under the pressure of people of her locality. She admitted it to be correct that the accused had not taken her to anywhere nor had he done anything wrong with her.
10. Prosecution further examined Ms. F (identity withheld) mother of the victim as PW 2, who deposed that one day in the month of February, 2017, her daughter / victim S left the house of her own and returned back on the next date. Matter was reported to the police, and the police official obtained their signatures on some blank papers.
11. Since the witness / PW 2 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 2 admitted it to be correct that on Judgment : FIR No. 82/17 page 5 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman 22.02.2017 at about 1.30 PM, her daughter went missing, but she denied that she complained before the police that accused Salman, had enticed and kidnapped her daughter S. She denied that her statement was recorded by the police but admitted her signature at point A on statement Ex. PW2/A. She volunteered that police had obtained her signatures on blank papers. She denied that she had handed over the clothes of victim S to the police, and that the same were seized by the police. PW 2 denied that on return of her daughter S, she told her that accused had left her near the house or that at that time victim was in intoxicated condition. She denied the suggestion put to her by Ld. Addl. P.P. for the State that accused had committed wrong act with her daughter. She admitted that statement of her daughter / victim S was got recorded before the Judge Sahab (Ld. MM). She denied that she had colluded with the accused and in order to save him, she was deposing falsely in the court. PW 2 denied that her daughter had told her that accused had done wrong act with her. She denied that the accused had taken her daughter with him.
12. Prosecution further examined Mrs. R (identity withheld), bhabhi of the victim, as PW 3, who deposed that on 22.02.2017 her Nanad / victim S, left her house of her own, without disclosing to anyone, and despite efforts made by her and her mother in law (PW 2), she could not be traced out and in the evening, her mother in law (PW2) lodged a complaint with the police.
13. Since the witness / PW 3 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was Judgment : FIR No. 82/17 page 6 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 3 denied that later she came to know that accused Salman had committed wrong act with her Nanad / victim S or that she had seen the accused sitting in Peer Baba Park and informed the police. She denied that on her pointing out, the police arrested the accused but she admitted her signature at point A on the arrest memo Ex. PW 3/A. She volunteered that police had obtained her signature on blank papers. She denied that police had recorded her statement Ex. PW 3/B. She denied that she had colluded with the accused and in order to save him, she had deposed falsely in the court.
14. During her crossexamination by the Ld. Counsel for the accused, PW 3 admitted it to be correct that in the morning of 22.02.2017, her mother in law had slapped her daughter (victim S) as she was not doing any work, and due to this reason, victim S left the house and went to the house of her Bua.
15. The victim, her mother as well as her sister in law, who were cited as the material witnesses of the occurrence, by the prosecution, did not support the prosecution case and resiled from their previous alleged statements and complaint. Even on being cross examined by the Ld. Addl. P.P. for the State, their stand remained consistent that the accused had not committed sexual assault upon the victim S. Ld. Addl. PP for the State stated that there is no other incriminating evidence, which would connect the accused with the offences he has been charged with and therefore recording of further prosecution evidence was not necessitated Judgment : FIR No. 82/17 page 7 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman and accordingly PE was closed.
16. Since there was no incriminating evidence against the accused, the recording of statement of accused u/s 313 CrPC was dispensed with.
17. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Sh. Kamal Sharma, Ld. Amicus Curiae for the accused, scrutinized the evidence adduced by the prosecution and have gone through the record.
18. Age of the Victim: In order to ascertain the age of the victim S, the prosecution collected and relied upon the Certificate dated 19.04.2017 issued by the Principal, M.C. Primary School, Jahangir Puri, Delhi110033, where the victim S was studying, which reveals that the date of birth of victim S is 03.07.2000. The photocopy of the relevant entry of the Admission & Withdrawal Register maintained in M.C. Primary School, Jahangir Puri, Delhi110033, has also been placed on record, which shows the date of birth of victim S as 03.07.2000. Defence has not disputed the age of the victim in any manner. As such, on the date of alleged incident i.e. 22.02.2017, the victim was aged about 16 ½ years, and hence she is a "Child" within the meaning given under the POCSO Act.
19. Medical and forensic Evidence : There is no forensic or medical evidence, which was gathered, as allegations against the accused neither necessitated nor warranted gathering of medical or Judgment : FIR No. 82/17 page 8 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman forensic evidence in this case. Thus there is no such evidence on record, to connect the accused to the offences allegedly committed.
20. Testimony of victim, her mother and her sister in law:
The victim S as PW 1, denied the prosecution case in its entirety, deposing that on the day of incident, she had an altercation with her mother, and out of anger, she left her house, of her own, and went to the house of her maternal aunt, where she stayed overnight, and on her return on the next day, she found that the accused, under the influence of liquor, was quarreling with her mother, and on the asking of her mother, victim S had lodged a complaint against the accused. She denied the prosecution case and on specific suggestions being put to her by the Ld. Addl. P.P. for the State, to the effect, that she was enticed and taken away by the accused to Anand Vihar, where accused committed wrong act / sexual assault upon her, she denied the prosecution story. She denied the suggestion that the accused had injected an intoxicating substance into her body. She even denied the suggestion that her mother had compromised with the accused and in order to save the accused, she was deposing falsely. During her cross examination by Ld. Counsel for the accused, she admitted it to be correct that accused had not done anything wrong with her. She further deposed that the accused had a quarrel with her mother, on the day of incident, and in order to teach him a lesson, she had got the instant case registered against him, under the pressure of people of her locality.
21. Similar was the case with the testimony of PW 2, mother of the Judgment : FIR No. 82/17 page 9 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman victim S. She did not support the prosecution case and deposed that one day in the month of February, 2017, her daughter S left the house, of her own, without disclosing to anyone, and that the victim S returned on the next day. She denied the suggestion put to her by the Ld. Addl. P.P. for the State that accused after enticing her daughter, had taken her with him and had committed wrong act / sexual assault upon her. She specifically denied the suggestion that she had compromised with the accused and in order to save him, she was deposing falsely.
22. Similarly, PW 3 Mrs. R also denied the prosecution case in its entirety, deposing that on the day of incident, the victim, after having an altercation with her mother, had left the house and returned back on the next day. She denied the suggestion put to her by the Ld. Addl. P.P. for the State that later she came to know that accused had committed wrong act / sexual assault upon her or that on her instance, the accused was arrested.
23. As such, the victim herself as well as her mother and sister in law, who were the only material witnesses, on whose testimony, the case of the prosecution was hinging, did not support the prosecution case. The three star witnesses, examined by the prosecution, on which the case of the prosecution was based, have denied the happening of the alleged incident, in totality. As per the prosecution case, the accused was arrested at the instance / pointing out of the sister in law (PW3) of the victim, but she in her crossexamination by the Ld. Addl. P.P. for the State, has categorically denied the suggestion that accused was arrested Judgment : FIR No. 82/17 page 10 of 11 SC No. 245/17 State Vs. Mohd. Intiyaj @ Salman on her pointing out. All the witnesses had further went ahead to depose that the police officials had obtained their signatures on blank papers. Prosecutrix and her mother were the material witnesses of the incident and they not having supported the prosecution case and having given a clean chit to the accused, there is nothing that survives in the prosecution case, which falls flat on its face, failing to bring home the guilt of accused.
24. Conclusion : From the aforesaid discussions, allegations against accused are not proved. Accordingly, accused Mohd. Intiyaj @ Salman stands acquitted for the offences, he has been charged with. Bail bond of the accused stands cancelled and his surety is discharged. Documents of the surety, if any retained on record, be released to him on appropriate application being moved by him.
Accused is directed to furnish a personal bond in the sum of Rs.10000/ under provisions of Section 437A CrPC, with one surety in the like amount.
Since victim has not suffered any injury or loss, either physical, mental or psychological, he has not been granted any compensation as per provisions of section 33 (8) POCSO Act.
File be consigned to record room.
Announced in the open court today i.e. on 25.07.2017 (SEEMA MAINI) ASJ01/Special Court : POCSO Act :
North : Rohini/Delhi : 25.07.2017 Judgment : FIR No. 82/17 page 11 of 11