Delhi District Court
State vs Mr.Akash Kapoor. -:: Page 10 Of on 14 December, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE POCSO ACT,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56240/2016.
Old Sessions Case Number : 374/2015.
State
versus
Mr.Akash Kapoor
Son of Mr.Sarovar Kapoor,
Resident of A-93, Sunlight Colony-II,
Hari Nagar, Ashram, Delhi.
First Information Report Number : 374/2015.
Police Station Patel Nagar.
Under sections 323/354/376/506/34 of the Indian Penal Code
and under section 6/10 of the POCSO Act.
Date of filing of the charge sheet : 06.08.2015.
Arguments concluded on : 14.12.2017.
Date of judgment : 14.12.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with counsel, Ms.Geetanjali Sharma.
Mother of the prosecutrix.
Investigation Officer/ASI Kiran Sethi.
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JUDGMENT
1. Mr.Akash Kapoor, the accused, has been charge sheeted by Police New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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Station Patel Nagar for the offences under sections 323/354/376/506/34 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 6/10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Akash Kapoor has been prosecuted on the allegations that many times since the year 2009 or since the time when the prosecutrix was in class IX, he with his co-accused (juvenile in conflict with law-name mentioned in file and withheld to protect his identity) used to take the prosecutrix (who is a minor girl) at his house and both of them committed gang rape/penetrative sexual assault upon her and lastly on 25.04.2015, accused along with the juvenile in conflict with law took the prosecutrix at house and committed gang rape/penetrative sexual assault upon her; and during the commission of the aforesaid offences, accused with the juvenile in conflict with law made the porn video of the prosecutrix and threatened her to make public the same, in case she resisted or disclosed about the commission of the offences.
3. 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.
Fictitious identity of Mr.Z is given to the father of the prosecutrix New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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and Ms.Y is given to the mother of the prosecutrix in order to protect the identity of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 06.08.2015.
5. After hearing arguments, charge for offences under section 6 of the POCSO Act and in the alternative under section 376D/34 of the IPC and under section 506/34 of the IPC was framed against accused Mr.Akash Sharma vide order dated 30.09.2015 by the learned predecessor of this Court 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 prosecutrix Ms.X, as PW1; Mr.Z, father of the prosecutrix, as PW2 and Ms.Y, mother of the prosecutrix, as PW3.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her father Mr.Z as PW2 and mother Ms.Y as PW3 have also been examined in camera.
8. The prosecutrix Ms.X as PW1 has seen accused Mr.Akash Kapoor New Sessions Case Number : 56240/2016.
Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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who is behind curtain and after removal of the curtain, the prosecutrix has identified the accused, as Akash Kapoor. She has deposed that "I used to roam with accused Akash on his motorcyle. He had never developed any physical relation with me. He had never committed rape upon me. I do not know any boy namely ....."
9. 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 but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that he had developed my videography or that he used to threatened me. It is wrong go suggest that accused Akash and his friend beaten up at my behest by my friends or that accused Akash had threatened me of dire consequences. It is wrong to suggest that on 25.04.2015, accused Akash and his friend took me to the house of Akash and committed rape upon me or that videography was also done."
10.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "I have not given my statement today in the Court under any kind of threat or pressure or coercion or undue influence or in any concentration."
New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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11.The father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused. In his cross examination on behalf of the accused, he has admitted that '"It is correct that my daughter i.e proecutrix never informed me that any incident of rape has been committed with her. It is correct that police has made false case against the accused. It is correct that I am deposing before this Court without any threat, coercion or fear."
12. The mother of the prosecutrix Ms.Y (PW3) has also not deposed anything incriminating against the accused. She was declared hostile by the prosecution but nothing material for the prosecution came forth in her lengthy cross examination. In her cross examination on behalf of the accused, he has admitted that the accused is innocent and has not committed any offence against her daughter.
13.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1, Mr.Z, father of the prosecutrix (PW2) and Ms. Y, mother of the prosecutrix (PW3) have not deposed an iota of evidence of accused Mr.Akash Kapoor that he committed the offences of gang penetrative sexual assault, gang rape, made porn video of the prosecutrix and threatened her.
New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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14.In the circumstances, as the prosecutrix Ms.X (PW1), who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused as well as parents of the prosecutrix (PW2 and 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 the prosecutrix Ms.X (PW1), father, Ms.Z (PW2) and mother Ms.Y (PW3) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
15. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Akash Kapoor is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and her parents (PW2 and PW3) have also not deposed anything incriminating against the accused.
New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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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), her father (PW2) and her mother (PW3), 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 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.
New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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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).
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.Akash Kapoor. Even otherwise, no useful purpose would be served by adopting any New Sessions Case Number : 56240/2016.
Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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hyper technical approach in the issue.
22.Consequently, no inference can be drawn that the accused Mr.Akash Kapor is guilty of the charged offences under section 6 of the POCSO Act and in the alternate under section 376D/34 of the IPC and under section 506/34 of the IPC.
23.There is no material on record to show that many times since the year 2009 or since the time when the prosecutrix was in class IX, he with his co-accused (juvenile in conflict with law-name mentioned in file and withheld to protect his identity) used to take the prosecutrix (who is a minor girl) at his house and both of them committed gang rape/penetrative sexual assault upon her and lastly on 25.04.2015, accused along with the juvenile in conflict with law took the prosecutrix at house and committed gang rape/penetrative sexual assault upon her; and during the commission of the aforesaid offences, accused with the juvenile in conflict with law made the porn video of the prosecutrix and threatened her to make public the same, in case she resisted or disclosed about the commission of the offences.
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 New Sessions Case Number : 56240/2016.
Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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accused Mr.Akash Kapoor for the offences of committing gang penetrative sexual assault, gang rape, making porn video of the prosecutrix and threatening her. The witnesses have not deposed an iota of evidence that accused Mr.Akash Kapoor 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.Akash Kapoor for the offences under section 6 of the POCSO Act and under section 506/34 of the IPC. The prosecution has also failed to prove the alternate charge for the offence under section 376D/34 of the IPC.
26.Consequently, accused Mr.Akash Kapoor is hereby acquitted of the charges for the offences of gang penetrative sexual assault, gang rape, making porn video of the prosecutrix and threatening her punishable under section 6 of the POCSO Act and under section 506/34 of the IPC. He is also acquitted for the alternate charge under section 376D/34 of 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.
New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-
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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 completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 14th day of December, 2017.
Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 56240/2016. Old Sessions Case Number : 141/2015. First Information Report Number : 374/2015. Police Station : Patel Nagar.
Under sections 323/3545/376/506/34 of the Indian Penal Code and under section 6/10 of the POCSO Act. State versus Mr.Akash Kapoor. -:: Page 10 of 10 ::-