Delhi District Court
State vs . Kishan Mandal on 19 July, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Case ID No.02403R065822014
SC No. 8929/16
FIR No. 29/14
PS : Tughlak Road
U/sec.363/366/376 IPC & Sec.4 POCSO Act
In re :
STATE
Vs.
Kishan Mandal
S/o Sh. Nimai Mandal
R/o TH-147, JJ Indira Camp-I,
Sriniwas Puri, New Delhi. ....Accused
Date of filing of charge sheet : 16.04.2014
Date of framing of charge : 19.05.2014
Date of judgment : 19.07.2016
JUDGMENT
1 By this judgment I will dispose of case of the prosecution based on FIR NO. 29/14, P.S. Tughlak Road.
2 The brief facts of the case as per investigation/charge State Vs. Kishan Mandal 2 sheet are that complainant (father of the prosecutrix) reported to SHO PS Tughlak Road stating that his daughter i.e. prosecutrix X (aged about 16 years name mentioned in FIR) is missing. As per him, she left the home on 09.03.2014 i.e. the day of reporting. FIR u/sec.363 IPC was registered. Later on complainant informed to police officials PS Tughlak Road on 11.03.2014 stating that accused and victim/prosecutrix was located at G. R. P. Police Station, Mugal Sarai, Bihar. Police officials from Delhi reached there and brought both of them to Delhi. Accused was arrested. Investigation was completed and present charge-sheet was filed.
3 Cognizance of the offences was taken. Accused was provided with the copies of the charge sheet and documents. After hearing the arguments on charge, charges under Section 363/366 IPC read with Sec.4 of POCSO Act and u/sec.376 IPC were framed against the accused who pleaded not guilty and claimed trial.
4 To prove its case prosecution examined 12 witnesses.
5 PW1 Prosecutrix X deposed on 18.11.2014 that she knew the accused through one common friend Rohit. Both victim and accused get involved with each other. They used to frequently roam around the school and used to generally talk to each other on mobile phone. On one day, in March, 2014, she left her house State Vs. Kishan Mandal 3 and went with the accused to the house of his Bua. She had asked the accused and voluntarily accompanied him to the house of his Bua by train.
On further deposition on 30.01.2015, she deposed that she was known to accused through one friend Ravi. Accused used to harass her for friendship. She refused. Then accused threatened to kill her family and also threatened that he will create hangama (quarrel) in her gali. In the intervening night of 08/09.03.2014 accused came outside her home in an auto rickshaw at about 4.30 a.m. At that time, she went to washroom which was situated outside her house. Accused saw her and forcibly caught her and made her to sit in the auto rickshaw and took her to Anand Vihar Railway Station. From there, he took her on train to Bengal where the Bua of accused was residing. When they were traveling in the train, some police officers came at Mugal Sarai Railway Station and started making inquiries from the accused. There she informed the police officials that accused was taking her to Bengal. Police officials informed her father. Her father reached at Mugal Sarai Railway Station on 10/11.03.2014. Delhi Police also reached there. They bring both to Delhi. Police made inquires from her. She was medically examined vide MLC Ex.PW1/A at RML Hospital. Her statement was also recorded u/sec.164 Cr.P.C. Ex.PW1/B (wrongly mentioned as TIP Proceedings). She deposed that accused had made physical State Vs. Kishan Mandal 4 relationship with her in a guest house type place in the year 2014 forcibly and by giving threats that he would kill her family.
6 PW2 Father of prosecutrix X deposed that on 09.03.2014 prosecutrix X was kidnapped by accused. He lodged missing report Ex.PW2/A dated 09.03.2014 with PS Tughlak Road. On 10.03.2014, he received telephonic call from Railway Police Station Mugal Sarai whereby it was informed that prosecutrix has been recovered from a train. He informed the police officials of PS Tughlak Road. He went to G. R. P. Police Station, Mugal Sarai and found his daughter and accused there. The officials of the police station refused to give the custody of the prosecutrix to him stating that the same will be handed over only to police officials as the FIR has already been registered. Thereafter the police officials from Delhi reached there. Both were brought to Delhi. Prosecutrix was sent to Nirmal Chhaya. On 16.03.2014, her statement was recorded. Thereafter the prosecutrix was sent to NGO.
7 PW3 Dr. Neha deposed that 14.03.2014 prosecutrix was referred by Dr. Sweta Mehdiratta for her medical examination. She gave her opinion Ex.PW3/A. 8 PW4 Ct. Udham deposed that on 11.03.2014 complainant informed the police officials of PS Tughlak Road regarding the whereabouts of accused and victim. On receipt of State Vs. Kishan Mandal 5 said information SI Mahinder obtained permission to go out of station. He along with SI Mahinder, Lady Ct. Anita and complainant went to Railway Station Mugal Sarai. There they found prosecutrix and accused. They brought both of them to Delhi. After reaching PS Tughlak Road, prosecutrix was interrogated by IO WSI Jagwati.
9 PW5 W/Ct. Anita deposed that on 11.03.2014 complainant informed the police officials of PS Tughlak Road regarding the whereabouts of accused and victim. On receipt of said information SI Mahinder obtained permission to go out of station. She along with SI Mahinder, Ct. Udham and complainant went to Railway Station Mugal Sarai. There they found prosecutrix and accused. They brought both of them to Delhi. After reaching PS Tughlak Road, prosecutrix was interrogated by IO WSI Jagwati.
10 PW6 Ct. Satish Kumar deposed that on 21.03.2014 he was posted at PS Tughlak Road. On the instructions of IO SI Jagwati he took the accused for his medical examination. Medical examination of accused was got conducted vide MLC Ex.P-7. Medical authorities handed over two sealed pullandas to him with the seal of CMO Dr. RML Hospital. He handed over those pullandas to IO who took the same into possession vide memo Ex.PW6/A. State Vs. Kishan Mandal 6 11 PW7 Ct. Lokesh deposed that on 14.03.2014 he was posted at PS Tughlak Road. Accused was arrested in his presence vide arrest memo Ex.PW7/A and was personally searched vide personal search memo Ex.PW7/B. 12 PW8 SI Mahinder deposed that on 09.03.2014 he was posted at PS Tughlak Road. Complainant came to police station and his statement Ex.PW3/A was recorded regarding his missing daughter. He made endorsement Ex.PW8/A on the said complaint and handed over the same to Duty Officer. Duty Officer recorded FIR. On 11.03.2014, complainant called him on telephone that accused induced her daughter and took her and now both are at Mugal Sarai Railway Station. He discussed the matter with senior police officials. He made application Ex.PW8/B for going out of station to Mugal Sarai, before ACP and the same was allowed. He along with Ct. Udham Singh and Ct. Anita went to Mugal Sarai Railway Station. Complainant met them at Mugal Sarai Railway Station. They found accused and victim there, brought both of them to PS Tughlak Road where the investigation was carried out by WSI Jagwati.
13 PW9 WSI Jagwati deposed that on 14.03.2014 she was posted at PS Tughlak Road. Investigation was handed over to her by SHO. She made interrogation from the prosecutrix and State Vs. Kishan Mandal 7 recorded her statement. She arrested the accused. She along with W/Ct. Ritika took the prosecutrix to Dr. RML Hospital. She got the case property handed over by Doctor vide possession memo Ex.PW9/A. Doctor also handed over one sealed envelop with the seal of Dr. RML Hospital containing outer and inner clothes of the prosecutrix. The same were taken into possession vide memo Ex.PW9/B. She also got MLC and age estimation report of victim Ex.PW9/C and Ex.PW9/D. On the same day complainant provided the birth certificate Ex.P-2 of the prosecutrix. As per the same, the date of birth of victim was 27.08.1998. The same was taken into possession vide memo Ex.P-3. School Leaving Certificate of the prosecutrix Ex.P-4 was also taken into possession by her vide Ex.P-5. Accused was sent with Ct. Satish for getting his medical examination.
On 15.03.2014, she moved an application for getting the statement of prosecutrix recorded u/sec.164 Cr.P.C. The statement was not recorded by the Magistrate on the same day. She moved an application Ex.PW9/E for getting the statement of prosecutrix. Statement of prosecutrix Ex.PW9/F was provided to her. Prosecutrix was sent to Nirmal Chhaya.
On 16.03.2014, she again moved an application Ex.PW9/G. Statement of victim was recorded u/sec.164 Cr.P.C. The same was recorded vide proceedings Ex.PW1/B. She moved application Ex.PW9/H for getting copy of the statement. The same State Vs. Kishan Mandal 8 was given to her.
On 20.03.2014 she visited SDMC Primary School, Sriniwas Puri and obtained the admission record Ex.P-6, of prosecutrix.
On 21.03.2014 on her application, the blood sample of accused was taken vide MLC Ex.P-7. Two sealed pullandas sealed with the seal of CMO was handed over. The same was taken in to possession vide memo Ex.PW2/A by Ct. Satish who had then joined investigation with her.
On 25.03.2014 she took the case property from MHC (M) vide RC No. 32/21 and deposited the same with FSL. She got obtained the acknowledgement slip and the same was handed over by her to MHC (M). Till the samples remained in her possession, the same were not tampered. Later on she obtained result from FSL Ex.PW9/J and filed supplementary charge-sheet.
14 PW10 Ct. Sudhir Yadav, GRP Railway Station deposed that on 10.03.2014 he along with Ct. Rajesh Kumar were at duty at Mugal Sarai Railway Station. On that night at about 10.30 p.m., they were checking a train namely North East Express which had come from Delhi. In the General Compartment accused was present with a girl. The girl was looking of minor age. Girl was asked to made conversation with her parents. He spoke with the father of the victim (complainant) and came to know that the victim State Vs. Kishan Mandal 9 girl had left the house without telling them. Both of them was taken down from the train and brought to GRP Railway Police Station.
15 PW11 Ct. Ritika deposed that on 14.03.2014 she was posted at PS Tughlak Road and joined investigation with SI Jagwati. She, victim, mother of victim and WSI Jagwati took the prosecutrix to RML Hospital for medical examination.
16 PW12 HC Virender Singh deposed that on 14.03.2014 he was posted at PS Tughlak Road. On 14.03.2014 WSI Jagwati deposited two sealed pullandas with the seal of Dr. RML Hospital with him. He deposited the same vide entry at serial no. 811 the same is Ex.PW12/A. On 21.03.2014 WSI Jagwati deposited two sealed pullandas with the seal of Dr. RML Hospital with him. He deposited the same vide entry at serial no. 817 the same is Ex.PW12/B. On 25.03.2014 he handed over the exhibits of the case to IO WSI Jagwati vide RC No. 32/21 for depositing the same in FSL. After depositing the same, WSI Jagwati handed over the acknowledgement slip to him. He made entry in this regard at point X. On 21.10.2015 Ct. Anil deposited a sealed envelop with the seal of FSL. He deposited the same vide entry at point Y. he handed over the sealed envelop to IO. He proved RC no. 32/21 State Vs. Kishan Mandal 10 and acknowledgement slip as Ex.PW12/C. 17 Following documents were admitted by accused/counsel for accused u/sec.294 Cr. P.C. and were read as evidence:-
Serial Description of Number Admitted/ Remarks Exhibit/s No. document/s of denied by court, pages if any 1 FIR 3 Admitted To be Ex.P-1 read in evidence 2 MLC of 1 Admitted To be Ex.PW1/A prosecutrix read in evidence 3 Birth certificate 2 Admitted To be Ex.P-2 of prosecutrix, read in & seizure memo evidence Ex.P-3 of birth certificate 4 School leaving 7 Admitted To be Ex.P-4, certificate of read in Ex.P-5 & accused, evidence Ex.P-6 seizure memo of the same, entire school record of accused 5 MLCs of 2 Admitted To be Ex.P-7 & accused read in Ex.P-8 evidence 6 Proceedings 3 Admitted To be Ex.PW1/B State Vs. Kishan Mandal 11 u/sec.164 read in Cr.P.C. Evidence
18 On account of the admission/denial of documents, following witnesses were dropped by the prosecution:-
1 HC Hukam Chand As FIR recorded by him already exhibited as Ex.P1.
2 Dr. Sweta Mehdi Ratta As the MLC conducted by her
already exhibited as
Ex.PW1/A
3 Head Mistress N. P. Co- As the Birth certificate of
Ed. Primary School, prosecutrix already exhibited Tughlak Cresent as Ex.P-2 and Ex.P-3. 4 Principal SDMC Primary As the school leaving School (Boys) Shri certificate of accused and Niwas Puri, New Delhi entire school record of accused already exhibited as Ex.P-4 to P-6.
5 Dr. Ramavtar Manda As the MLC prepared by him CMO Casualty RML already exhibited as Ex.P-7. Hospital.
6 Dr. Rajeev Sood As the MLC prepared by him Consultant Urology RML already exhibited as Ex.P-8. Hospital 7 Sh. Gaurav Rao, Ld. MM As the proceedings recorded by him already exhibited as Ex.PW1/B.
19 After the closure of PE, statement of accused was State Vs. Kishan Mandal 12 recorded u/sec.313 Cr.P.C. In this statement all incriminating evidence was put to the accused. He stated that he is innocent and has been falsely implicated in this case.
20 No DE was led by accused.
21 I have gone through the record, evidence and submissions forwarded by Ld. APP for State and Ld. Counsel for the accused. My observations are as under:-
22 It is argued by Ld. counsel for accused that prosecutrix had herself gone with the accused and was never allured. It is further stated that there was no act of penetrative sexual assault with the victim. It is stated that the victim is changing statement now and then and thus cannot be relied. It is further stated that victim had wrongly deposed in her testimony that accused had ever exerted pressure on her when she made statement before police or before Ld. MM.
23 It is argued by Ld. APP for State on the ground that prosecution was able to prove its case that victim was allured and also that accused and victim were having sexual relationship.
24 As far as the present case is concerned, following are that points for determination of the innocence/guilt of the accused:-
(i) Whether the victim was minor at the time of offence to attract the provisions of POCSO Act?
State Vs. Kishan Mandal 13
(ii) Whether the victim was under the influence of accused when she was examined by police or MM?
(iii) Whether the victim/prosecutrix was allured by the accused for leaving her home and thus was kidnapped by the accused?
(iv) Whether there was any physical relationship between the victim and the accused?
25 My discussions on the above points are as under:-
POINT (i) Whether the victim was minor at the time of offence to attract the provisions of POCSO Act?
26 As far as the age of victim is concerned, prosecution had relied on the birth certificate of the prosecutrix. The same was admitted by the accused and thus marked Ex.P-2. As per the said certificate, the date of birth of prosecutrix is 27.08.1998. The allege missing of victim took place on 09.03.2014, so the victim was less than 18 years of age on this date and so the provisions of POCSO Act are applicable.
POINT (ii) Whether the victim was under the influence of accused when she was examined by police or MM?
27 In this case, prosecutrix left her home on 09.03.2014. She was found in the company of accused on a train by some police officials at Mugal Sarai Station on 10.03.2014. The custody State Vs. Kishan Mandal 14 of accused as well as prosecutrix was taken from the police officials of Mugal Sarai Station i.e. from GRP by the police officials of PS Tughlak Road. The police officials of PS Tughlak Road reached Delhi on 13.03.2014. From 13.03.2014, the victim remained in the custody of police officials accompanied with her parents. From where she was sent to Nirmal Chhaya. Accused was sent to JC on 14.03.2014. The statement of victim was recorded by Ld. MM on 16.03.2014 (accused was in custody on that day and victim was produced from Nirmal Chhaya). So, in these circumstances, there was no possibility that victim/prosecutrix came in touch with the accused. Moreover, in the cross-examination she had stated that "it is correct that on the day we were apprehended by the police, the accused was taken away by the police. It is correct that since the time of arrest of the accused till my statement under Sec.164 Cr.P.C. was recorded, the accused did not meet me".
So, in these circumstances, it can be safely concluded that the victim/prosecutrix was not under any influence, at the time when she gave her statement to the police or to Ld. MM.
POINT (iii) Whether the victim/prosecutrix was allured by the accused for leaving her home and thus was kidnapped by the accused?
28 In this case the examination-in-chief/evidence of State Vs. Kishan Mandal 15 prosecutrix started on 18.11.2014. In her evidence on that day she had stated "the accused was the friend of Rohit and he became my friend as well. We used to infrequently roam and around the school and used to generally talk to each other on mobile phone. One day in March, 2-14, I left my house and went with accused to the house of his Bua. I had been asked by accused and had voluntarily accompanied him to the house of his bua. We took a train for going to the house of bua. This examination-in-chief was deferred due to lunch time on 18.11.2014. However, when her further examination-in-chief was got recorded on 30.01.2015, she changed her version and stated that "she deposed that she was known to accused through one friend Ravi. Accused used to harass her for friendship. She refused. Then accused threatened to kill her family and also threatened that he will create hangama (quarrel) in her gali. In the intervening night of 08/09.03.2014 accused came outside her home in an auto rickshaw at about 4.30 a.m. At that time, she went to washroom which was situated outside her house. Accused saw her and forcibly caught her and made her to sit in the auto rickshaw and took her to Anand Vihar Railway Station. From there, he took her on train to Bengal where the Bua of accused was residing". In her statement u/sec.164 Cr.P.C. she had stated that "on 07.03.2014 after her examination she went for some treat with her friends. She got late to return home. She was State Vs. Kishan Mandal 16 scolded by her parents. On account of this tension on 09.03.2014, she called the accused, forced him to take her. Then she left with the accused and were going to Bihar. In the midway at Mugal Saraia Station, police officials caught both of them. She herself was taking the accused and accused was not knowing anything".
Now these are the three statements made by the victim, on Oath, at different dates. As discussed above victim was not under any influence/pressure at the time of making statement u/sec.164 Cr.P.C. So, it can be concluded that all these statements are made by the victim out of her own Will.
From the examination of all these three statements, it appears that victim/prosecutrix is changing stand. In statement u/sec.164 Cr.P.C. and dated 18.11.2014 she had stated that she left own its own, herself called the accused and forced the accused to take her to Bihar. However later on she stated that she was kidnapped. So, in these circumstances, she cannot be relied for the purposes of allegations against the accused.
So, prosecution failed to establish the fact that accused allured the prosecutrix and kidnapped her.
POINT (iv) Whether there was any physical relationship between the victim and the accused?
29 As far as this fact is concerned, prosecutrix had denied State Vs. Kishan Mandal 17 specifically denied this fact in her statement u/sec.164 Cr.P.C. However, in her statement in this court dated 30.01.2015, she had stated that "accused has made physical relations with me in a guest house type place in the year 2014. No specific date, time is mentioned. So, there are two contradictory statements by the witness. As discussed above, the witness cannot be relied as she is changing her statement now and then. So in view of aforesaid contradictory statements, it is doubtful as to whether any sexual intercourse took place between the victim and the accused.
So, prosecution failed to establish, beyond reasonable doubt, the fact of sexual intercourse between accused and the victim.
30 So, in these circumstances prosecution failed to prove its case beyond reasonable doubt.
31 Accused Kishan Mandal is acquitted of the offences u/sec.363/366 IPC, Sec.376 IPC & Sec.4 POCSO Act.
32 Copy of order be given dasti to prosecution.
33 File be consigned to the Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 19.07.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi State Vs. Kishan Mandal 18 SC No. 8929/16 State Vs. Kishan Mandal FIR No. 29/14 PS : Tughlak Road U/sec.363/366/376 IPC & Sec.4 POCSO Act 19.07.2016 Present: Sh. Ravindra Kumar, Ld. APP for State.
Sh. Anzar Alam counsel for accused.
Accused present on bail.
Vide separate order announced and dictated in open court, accused Kishan Mandal is acquitted for the offences u/sec.363/366 IPC, Sec.376 IPC & Sec.4 POCSO Act.
Bail Bond u/sec.437A Cr.P.C. furnished and accepted.
Copy of order be given dasti to prosecution.
File be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 19.07.2016 State Vs. Kishan Mandal