Delhi District Court
State vs Jugnu Kumar Prajapati S/O Sheetla on 20 October, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL
SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0219182009
Sessions Case No. 03/2011
Assigned to Sessions. 29.01.2011
Arguments heard on 19.10.2011
Date of order. 20.10.2011
FIR No. 141/2009
State Vs Jugnu Kumar Prajapati s/o Sheetla
Parajapati, r/o F147, Gali No.5, Gali
Chand Masjid, Gali Shastri Park, Delhi.
Police Station New Usmanpur
Under Section 367/354 IPC
JUDGEMENT
1. Station House Officer of Police Station New Usmanpur had filed a challan vide FIR No. 141/2009 dated 30.04.2009 u/s 354 IPC for the prosecution of accused Jugnu Kumar Prajapati in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Vide this judgment I shall dispose off this case. Since, this court is designated court for trial of cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial.
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2. Case of the prosecution is that on 29.04.2009 a DD No.24A Ex.PW4/A was recorded at police station New Usmanpur in connection with rape upon victim, aged about 05 years at house No. F229, Gali No.8, Near Durga Mandir, Shastri Park, Delhi and same was assigned to SI Ratnu Oraon. On receipt of DD No.24A SI Ratnu Oraon along with Ct. Puneet reached at the spot where victim aged about 05 years was produced before them by the complainant Smt. Sunita, mother of victim and victim was got medically examined from GTB Hospital vide MLC Ex.PW5/A through lady Ct. Krista. Lady Ct. Krista had produced one slide and sample seal before the I.O. after the MLC of victim which I.O. took into possession vide seizure memo Ex.PW5/B. I.O. had recorded statement of complainant Smt. Sunita, mother of victim Ex.PW2/A and made endorsement Ex.PW6/A upon the same. Accordingly, FIR Ex.PW6/D u/s 354 IPC was registered against Jugnu Kumar Prajapati. During the course of investigation police arrested accused Jugnu Kumar Prajapati.
3. On the basis of material available on record this court vide order dated 11.02.2011 framed a charge against accused Jugnu Kumar Prajapati for the offence punishable u/s 367/354 IPC to which accused did not plead guilty and claimed trial.
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4. In order to prove its case prosecution has examined 07 witnesses namely PW1 Kumari Kajal @ Kalu victim, PW2 Smt. Sunita, mother of victim/complainant, PW3 Sh. Santosh, father of victim, PW4 Ct. Puneet, PW5 Lady Ct. Krista, PW6 SI Ratnu Oraon and PW7 HC Jagbir Singh.
5. PW1 Kumari Kajal @ Kalu is a material witness being victim. This witness has been examined by this court for ascertaining her knowledge and capacity of understanding of this witness being child witness by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
6. This witness has been declared hostile by ld. APP for the State. Even in her cross examination by ld. APP for the State, this witness did not support the case of prosecution. In her cross examination by ld. APP for the State, this witness has denied that accused removed her underwear (kachhi) and put his hand on her private part (pesab wali jagah).
7. PW2 Smt. Sunita, mother of victim is a material witness being complainant. This witness has also been declared hostile by ld. APP for the State. Even in her cross examination by ld. APP for the State, this witness has not supported the case of prosecution and her statement Ex.PW2/A was confronted by Ld. APP for the State.
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8. PW3 Sh. Santosh, father of victim is a hearsay witness. This witness has also been declared hostile by ld. APP for the State. Even in his cross examination by ld. APP for the State, this witness has not supported the case of prosecution and his statement Ex.PW3/A was confronted by Ld. APP for the State. This witness has deposed that he cannot say what had happened with his daughter and by whom.
9. PW4 Ct. Puneet. This witness had remained with the I.O. during the investigation. In his presence statement of Smt. Sunita, mother of victim was recorded by the I.O. and prepared rukka. This witness had got registered FIR mark Z from the police station. This witness has proved MLC of victim mark X. In his presence accused Jugnu Kumar Prajapati was arrested vide arrest memo Ex.PW4/B at the instance of victim and his personal search was conducted vide personal search memo Ex.PW4/C. In his cross examination by ld. Defence counsel, this witness admits that time of arrest of accused is not mentioned in arrest memo Ex.PW4/B.
10.PW5 Lady Ct. Krista. This is a formal witness. This witness had got medically examined victim from GTB Hospital vide MLC Ex.PW5/A and she had handed over one slide to the I.O. which was handed over by the doctors at GTB Hospital to her and I.O. had seized the same vide seizure memo Ex.PW5/B. SC No.03/2011 State Vs. Jugnu Kumar Prajapati 4/12
11.PW6 SI Ratnu Oraon is a material witness being Investigating Officer. This witness has deposed that on 29.04.2009 on receipt of copy of DD No.24A Ex.PW4/A, he along with Ct. Puneet reached at the spot where complainant, Smt. Sunita, mother of victim had met them and victim Kajal aged about 5 years was produced before them by complainant, Smt. Sunita. Victim was got medically examined through lady Ct. Krista from GTB Hospital vide MLC Ex.PW5/A. This witness had seized one slide and sample seal vide seizure memo Ex.PW5/B which was handed over to him by Lady Ct. Krista after medical examination of victim.
12.This witness had recorded statement of Smt. Sunita vide Ex.PW2/A and got registered the FIR of present case, Ex.PW6/D through Ct. Puneet, after making endorsement Ex.PW6/A. Thereafter, investigation of this case was assigned to him. This witness had inspected the place of occurrence and prepared site plan Ex.PW6/C and arrested accused Jugnu Kumar Prajapati vide arrest memo Ex.PW4/B and his personal search was conducted vide personal search memo Ex.PW4/C.
13.PW7 HC Jagbir Singh. This witness is the witness of recording of FIR. This witness has proved the FIR Ex.PW6/D and endorsement on rukka Ex.PW6/A. This witness has deposed that investigation of this case was assigned to SI Ratnu Oraon for investigation. This witness has also proved DD No.24A SC No.03/2011 State Vs. Jugnu Kumar Prajapati 5/12 dated 29.04.2009 vide Ex.PW4/A.
14.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein the accused denied all the circumstances and evidence put to him and claimed to be innocent. He had not preferred to lead any defence evidence.
15.Thereafter, D.E. was closed and case was fixed for arguments. ARGUMENTS:
16.Ld. APP for state, Sh. Zenual Abedeen argued that this is case of outrage of modesty of a minor girl aged about 06 years. Ld. APP for the State further argued that on the statement of Smt. Sunita Ex.PW2/A, FIR No. 141/2009 Ex.PW6/D under section 354 IPC was registered against accused Jugnu Kumar Prajapati.
17.Ld. APP for the State further argued that material witnesses i.e. PW1 Kumari Kajal @ Kalu, PW2 Smt. Sunita and PW3 Sh. Santosh have been won over. PW4 Ct. Puneet and PW5 Lady Ct. Krista are official witnesses. PW6 SI Ratnu Oraon is the Investigating Officer.
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18.Ld. APP for the State further argued that there is evidence against accused Jugnu Kumar Prajapati upto kidnapping which is sufficient to convict the accused for the offences charged as prosecution has proved its case beyond reasonable doubt.
19.On the other hand, Ld. counsel for accused submits that address of accused is F205 whereas arrest memo shows address of accused F149, Godown, and no person from F205 has been examined.
20.Ld. counsel for accused further argued that site plan is false and investigating Officer never visited the site and accused was never arrested from spot. Time of arrest is not mentioned on arrest memo. Accused was called at police station. DD No.24A shows time 11:40 p.m. whereas FIR is registered at 21:45 p.m. on 29.04.2009.
21.Ld. counsel for accused further argued that PW2 Smt. Sunita, mother of victim states the time of incident at 9:00 p.m., this witness did not tell the police regarding wrong act with victim.
22.Ld. counsel for accused further submits that no incriminating evidence has come on record against accused and material witnesses i.e. PW1Kumari Kajal victim, PW2 Smt. Sunita - mother of victim/complainant and PW3 Sh. SC No.03/2011
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23.Arguments heard. Record perused. On perusal of record it is revealed that on the statement of complainant Ex.PW2/A, FIR No.141/2009 Ex.PW6/D u/s 354 IPC was recorded at police station New Usmanpur against accused Jugnu Kumar Prajapati. Accordingly, accused Jugnu Kumar Prajapati was arrested vide arrest memo Ex.PW4/B and his personal search was conducted vide personal search memo Ex.PW4/C.
24.On perusal of record, it is further revealed that charge under section 367 IPC had been framed against accused on the opinion found by ld. MM (Mahila Court) only on statement of victim u/s 161 Cr.P.C. Hence this case was sent to this court for trial.
25.On perusal of record, it is further revealed that site plan of the place of incident was prepared by the Investigating Officer vide Ex.PW6/C at the instance of victim.
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26.On perusal of record, it is further revealed that victim was got medically examined vide MLC Ex.PW5/A through lady Ct. Krista and she had produced one slide and sample seal before the I.O. after the MLC of victim which I.O. took into possession vide seizure memo Ex.PW5/B.
27.Further perusal of record shows that accused in his statement u/s 313 Cr. P.C. had deposed that he is innocent and has been falsely implicated in the present case after calling from his house.
28.Before coming to any conclusion it would be relevant to discuss sections of charges. The relevant section 354, 367 IPC are being reproduced which are as under: Section 354 IPC "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
Section 367 IPC Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients of offence. The essential ingredients of the offence under section 367 are as follows: (1) Accused kidnapped or abducted the person.
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29.Since in the present case, the material PWs i.e. Kumari Kajal @ Kalu victim, Smt. Sunita - mother of victim/complainant and Sh. Santosh - father of victim have been declared hostile by Ld. APP for the State and these witnesses have not supported the case of prosecution and other witnesses are of official nature and no incriminating evidence could come on record suggesting that accused had committed an offence u/s 354/367 IPC. On the point of major contradictions the Hon'ble Supreme Court of India in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' has also observed the following facts that:
"When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
It is true that in terms of hostile witness creditability of entire evidence of such witness cannot be rendered unworthy of consideration merely because he has been declared hostile but in the present case none of the prosecution witness has supported the case of prosecution, even in their cross examination by Ld. APP and in such circumstances it will not be safe to convict accused. Hon'ble High Court of Delhi, judgment dated 05.07.2006 in case titled as SC No.03/2011 State Vs. Jugnu Kumar Prajapati 10/12 "Shafiquddin Vs. State, 199 200/2006".
"According to the prosecution case there was a quarrel between Shafiquddeen and Kallu whereas according to the Kallu himself there was no quarrel between him and Shafiquddeen and no person at any time abused him. In fact, PW2 Kallu went to the extent to say that he did not know with whom the quarrel had taken place and who had injured Abid. The said witness was declared hostile. It cannot be said beyond any shadow of doubt that the accused petitioners were guilty of the offence for which they have been convicted. "
30.Since in this case none of the material witnesses have supported prosecution case and they had denied to identify the accused present in the court as culprit.
31.Considering the facts of this case, this court comes to the conclusion that ingredients of section 367 IPC has not met out against accused and prosecution has been failed to prove the charge under section 367 IPC against the accused beyond reasonable doubt.
32.As far as fact of section 354 IPC are concerned prosecution has been failed to prove the intention against the accused to outrage the modesty of the victim. Even fact of criminal force cannot be said to be proved beyond reasonable doubt against accused.
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33.In the lights of above considerations, this court is of the considered opinion that the prosecution has failed to prove the charges against accused Jugnu Kumar Prajapati u/s 354/367 IPC beyond reasonable doubt. Accordingly, under the facts and circumstances of the case, this court hereby acquit the accused Jugnu Kumar Prajapati from charges u/s 354/367 IPC by giving him benefit of doubt.
34.In terms of section 437 A Cr. P.C. and directions of Hon'ble High Court of Delhi accused Jugnu Kumar Prajapati is directed to execute bail bond in sum of Rs.5,000/ with one surety in the like amount for the period of six months. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 20.10.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.03/2011 State Vs. Jugnu Kumar Prajapati 12/12