Delhi District Court
State vs Mr.Maksood. -:: Page 15 Of on 28 March, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017.
State
versus
Mr.Maksood
Son of late Mr.Abdul Bahid,
Resident of Mohalla Aajam Pada, Nat Wali Gali,
Police Station Sahjganj, Tehsil, Police Line Sahganj,
District Agra (Uttar Pradesh)
First Information Report Number : 348/2017.
Police Station Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 14.09.2017.
Arguments concluded on : 28.03.2018.
Date of judgment : 28.03.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017.
First Information Report Number : 348/2017.
Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code
and under section 6 of the POCSO Act.
State versus Mr.Maksood. -:: Page 15 of
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Accused has been produced from judicial custody.
Mr.Hans Raj Singh and Mr.Sachin Mavi, counsel for the
accused.
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JUDGMENT
1. Mr. Maksood, the accused, has been charge sheeted by Police Station Punjabi Bagh for the offences under sections 377/506 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Maksood has been prosecuted on the allegations that during the period of about one and half months from the date when the FIR has been lodged i.e. 18.07.2017, he committed penetrative sexual assault upon the victim Master X aged about 15 years (who is complainant) repeatedly; he committed carnal intercourse several times with the victims Master X and with Master Y (brother of the complainant) against the order of nature and he criminally intimidated the victims Master X and with Master Y (brother of the complainant) by extending threats not to disclose about the offence New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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otherwise he would kill them.
3. The name, age and particulars of the both the victim boys are mentioned in the file and are withheld to protect their identity and the victim boy (who is complainant) is hereinafter addressed as Master X and brother of the complainant, is hereinafter addressed as Master Y, fictitious identities are given to both the victim boys.
4. After completion of the investigation, the charge sheet was filed before the Court on 14.09.2017.
5. After hearing arguments, charge for offences under section 6 of the POCSO Act and under sections 377/506 of the IPC was framed against accused Mr.Maksood vide order dated 10.11.2017 to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as (03) witnesses i.e. the victim boy (complainant) Master.X, as PW1;
brother of the complainant Master Y, as PW2; and Mr. Kadeer, who belongs to the village of both the victim boys and who is New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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addressed by them as Chacha, as PW3.
7. The evidence of the both the victim boys i.e. Master X as PW1 and Master Y as PW2 have been recorded in camera. Their uncle, Mr. Kadeer as PW3 has also been examined.
8. The victim boy Master X as PW1 has seen accused Mr. Maksood who sitting in a separate enclosure is shown to the witness through the one way visibility window on his screen, the victim boy has identified the accused, as Maksood. He has deposed that "Accused Maksood has not committed any offence against me. He has not done anything wrong to me. Accused Maksood had also not committed any offence against my brother." He has further deposed that "I have been threatened by the owner of the factory to falsely implicate the accused Maksood otherwise, he would terminate the services of my brother. I do not know the name of the owner of the factory. He had told me to level false allegation of oral sex against accused Maksood. He has further deposed that, "I pray that accused Maksood may be acquitted as he is New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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innocent."
9. As the victim boy Master X (PW1) was hostile and had retracted from his earlier statement, the Additional Public Prosecutor has cross-examined him. He has been cross examined but nothing material for the prosecution has come forth. He has denied the suggestion that "It is wrong to suggest that I had made complaint ExPW1/A as accused used to insert his private part in my mouth and also asked me to hold his private part in my hand. I had not stated to my Uncle (who had accompanied me to P.S) about the pressure created by the owner of factory to make false complaint against accused. It is wrong to suggest that accused was continuously committing wrong with me since one and a half months and then my Uncle came, I informed him about the said acts of accused, then he took me to police station. It is wrong to suggest that complaint ExPW1/A was made by me voluntarily without any pressure and for the reason that accused committed wrong upon me."
10.In his cross examination on behalf of the accused, the victim boy New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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Master X (PW1) has deposed that "It is correct that accused Maksood is innocent and he has not committed any offence against me and my brother. It is correct that all the allegations levelled against accused Maksood in the present case and more specifically in my complaint Ex.PW1/A and my statement U/s 164 Cr.P.C Ex.PX-4 are wrong. Vol. I again pray that he may be acquitted."
11. The second victim boy Master Y (PW2) has also not deposed anything incriminating against the accused.
12.The victim boy Master Y as PW2 has seen accused Mr. Maksood from behind the screen and has identified the accused as Maksood.
He has deposed that "Accused Maksood has not committed any offence against me. He has not done anything wrong to me. Accused Maksood had also not committed any offence against my younger brother. I alongwith my younger brother and my Uncle Kadeer went to police station. Out of fear of the owner of the factory, my younger brother told the police the same false facts against accused Maksood. I pray that accused Maksood New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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may be acquitted as he is innocent."
13.As the victim boy Master Y (PW2) was hostile and had retracted from his earlier statement, the Additional Public Prosecutor has cross-examined him. He has been cross examined but nothing material for the prosecution has come forth. He has denied the suggestion that all the allegations leveled against the accused.
14.In his cross examination on behalf of the accused, the victim boy Master Y (PW2) has deposed that "It is correct that accused Maksood is innocent and he has not committed any offence against me and my brother. It is correct that all the allegations levelled against accused Maksood in the present case and more specifically in my statement Mark X and my statement U/s 164 Cr.P.C ExPX-5 are wrong. Vol. I again pray that he may be acquitted."
15.Mr. Kadeer, whom the victim boys addressed as 'Chacha', (PW3) has also not deposed anything incriminating against the accused.
New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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16.In his cross examination on behalf of the accused, he has admitted that "It is correct that accused Maksood is innocent and he has not committed any offence against both the victim boys."
17. As Mr. Kadeer (PW3) has deposed a new version during his cross examination, the Additional Public Prosecutor for State has cross examined him.
18.In his cross examination on behalf of Additional Public Prosecutor for State, he has denied the suggestion that, "It is wrong to suggest that now the matter has been settled between the victim boys and accused Maksood and for this reason I am deposing that this is a false case made at the instance of the owner of the factory. It is wrong to suggest that I am deposing falsely in order to save the accused as I have been won over by the accused."
19.The prosecution witnesses i.e. Master X as PW1, Master Y as PW2 and Mr. Kadeer (PW3) have not deposed an iota of evidence of accused Mr.Maksood that he committed the offences of penetrative sexual assault, of carnal intercourse and of threatening to both the New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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victim boys Master X and Master Y.
20.In the circumstances, as both the victim boys MasterX (PW1) and Master 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 as well as Mr. Kadeer (PW3) 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 both the victims Master X (PW1), Master Y (PW2) and Mr. Kadeer (PW3) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
21. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr. Maksood is dispensed with as there is nothing incriminating against him as New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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both the victim boys Master X (PW1) and Master Y (PW2) are hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and Mr. Kadeer (PW3) have also not deposed anything incriminating against the accused.
22.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.
23.In the light of the aforesaid nature of deposition of the victim boys Master X (PW1) and Master 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 them. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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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 and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
24.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
25.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.
26.If one integral part of the story put forth by a witness was not New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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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).
27.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.Maksood. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
28.Consequently, no inference can be drawn that the accused Mr.Maksood is guilty of the charged offences under section 6 of the POCSO Act and under sections 377/506 of the IPC.
New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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29.There is no material on record to show that during the period of about one and half months from the date when the FIR has been lodged i.e. 18.07.2017, accused Mr.Maksood committed penetrative sexual assault upon the victim Master X aged about 15 years (who is complainant) repeatedly; he committed carnal intercourse several times with the victims Master X and with Master Y (brother of the complainant) against the order of nature and he criminally intimidated the victims Master X and Master Y (brother of the complainant) by extending threats not to disclose about the offence otherwise he would kill them.
30.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.Maksood of penetrative sexual assault, of carnal intercourse and of threatening both the victim boys Master X and Master Y.
31.The witnesses have not deposed an iota of evidence that accused New Sessions Case Number : 559/2017.
Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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Mr.Maksood has committed any of the charged offences.
32.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.Maksood for the offences under section 6 of the POCSO Act and under sections 377/506 of the IPC.
33.Consequently, accused Mr.Maksood is hereby acquitted of the charges for the offences of penetrative sexual assault, of carnal intercourse and of threatening both the victim boys Master X and Master Y punishable under section 6 of the POCSO Act and under sections 377/ 506 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
34.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
35.Case property be confiscated and be destroyed after expiry of New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-
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period of limitation of appeal.
36.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
37.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.Digitally signed by NIVEDITA
NIVEDITA ANIL SHARMA
ANIL SHARMA Date: 2018.04.02 12:57:46
+0530
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 28th day of March, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
************************************************************** New Sessions Case Number : 559/2017. Old Sessions Case Number : 199/2017. First Information Report Number : 348/2017. Police Station : Punjabi Bagh.
Under sections 377/506 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Maksood. -:: Page 15 of 14 ::-