Delhi District Court
State vs . Salman on 15 July, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Case ID No.02403R0154912015
SC No. 8975/16
FIR No. 147/15
PS : Chankaya Puri
U/sec.376 IPC & Sec.6 POCSO Act
In re :
STATE
Vs.
Salman
S/o Sh. Habib Ahmed
R/o A-288, Street no. 6, Sri Ram Colony,
Rajiv Nagar, Delhi. ....Accused
Date of filing of charge sheet : 17.08.2015
Date of framing of charge : 12.10.2015
Date of judgment : 15.07.2016
JUDGMENT
1 By this judgment I will dispose of case of the prosecution based on FIR NO. 147/15, P.S. Chankaya Puri.
State Vs. Salman 2 2 The brief facts of the case as per investigation/charge sheet are that complainant (mother of prosecutrix) reported that she is living in a servant quarter at South Avenue, New Delhi with her four children. One of her daughter is separately living with his father at Khajuri Khas, Delhi. Prosecutrix X (minor female aged about 15 years) is also one of my daughter, living with me. She is missing since 19.06.2015 from 2.00 p.m. She also stated that there is suspicion that accused had kidnapped her. On these facts, present FIR was registered. During investigation, it was found that accused kidnapped her with the assistance of one Ms. Sajila (aunt of victim) and also accused had committed penetrative sexual assault on her. After investigation charge-sheet was filed in the court against accused Salman. Accused Sajila was not traced.
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 376 IPC read with Sec.6 of POCSO Act were framed against the accused who pleaded not guilty and claimed trial.
4 To prove its case prosecution examined 6 witnesses.
5 PW1 Prosecutrix X deposed that at the time of alleged incident she was living with her mother. It was the day of "first State Vs. Salman 3 Roza". there was heated arguments between her and her mother. Her mother scolded her. She decided to leave her house and went to her mausi's house situated at Khajuri Khas. Mausi informed to her mother on telephone that she had come to her. Except that nothing happened.
Considering the fact that she was resiling from her statement given during investigation, she was cross-examined by Ld. APP for State. She admitted that accused Salman was living her house but denied her lover relationship with him. She also denied that accused had done any offence of kidnapping or penetrative sexual assault. However, she admitted her statement u/sec.164 Cr.P.C. She further denied that her aunt Sajila had forced her to do prostitution. She narrated earlier she denied to undergo medical examination but got the same conducted on 26.06.2015. She stated that she got the medical examination conducted on the asking of police official. Rest of the suggestions, given to the witness by Ld. APP for State were also denied.
6 PW2 HC Subhash deposed that on 22.07.2015 he was posted at PP South Avenue, PS Chankaya Puri. On that day, he joined investigation with IO SI Asha. Complainant produced the accused stating that he has done rape on the victim. IO interrogated the accused, arrested him and got him personally State Vs. Salman 4 searched vide memos Ex.PW2/A and Ex.PW2/B. Accused made disclosure statement Ex.PW2/C which was recorded by the police. He took the accused to RML Hospital for medical examination. Doctor handed over to him MLC Ex.P-7 and other articles in a sealed pullanda. He seized the same vide Ex.PW2/D. 7 PW3 Complainant/Mother of prosecutrix X deposed that on 19.06.2015 at about 2.00 p.m., her daughter/prosecutrix X left the house. She searched her but could not be traced. She made suspicion over accused Salman who is the son of her previous landlord. On 20.06.2015, she went to PS Chankaya Puri and gave complainant Ex.PW3/A. Later on she found that victim is at the house of her sister Sajila. She went there and took back her daughter/prosecutrix except this nothing happened.
As she was not deposing in terms of her earlier statement, Ld. APP for State sought for her cross-examination. The same was allowed. However, similar to PW1 she also denied all the allegations of kidnapping, penetrative sexual assault on the person of prosecutrix X. 8 PW4 SI Virender Singh deposed that on 20.06.2015, he was working as Incharge PP South Avenue, PS Chankaya Puri. Complainant came there and made statement regarding missing of her her daughter and made suspicion on one Salman. He recorded the statement Ex.PW3/A. Made endorsement Ex.PW4/A State Vs. Salman 5 at point B and prepared rukka. He handed over the rukka to Ct. Rajesh for getting the FIR registered. He got the FIR registered and came back along with SI Asha. Further investigation was taken by SI Asha.
9 PW5 Sh. D. S. Paliwal, SSA (Biology) at RFSL, Chankaya Puri, New Delhi deposed that on 03.07.2015 and 28.07.2015 two parcels were received at RFSL Chankaya Puri for DNA finger print examination. The same were analyzed and he submitted report Ex.PW5/A. 10 PW6 W/SI Asha deposed that on 20.06.2015 she was posted at PS Chankaya Puri and entered into investigation of this case. On 21.06.2015 the information regarding missing of victim was circulated on ZIP NET. On 23.06.2015, complainant and her sister Sajila came to PS and produced the victim. She took the victim to RML Hospital. Mother of the victim refused for the internal examination of the victim. Victim was produced before CWC and her custody was handed over to her mother vide order Ex.PW6/Y and memo Ex.PW6/X. On 24.06.2015, she moved an application Ex.PW6/A to get the statement of the victim recorded u/sec.164 Cr.P.C. Statement of victim Ex.PW1/A was recorded vide proceedings Ex.P-4. After recording the statement she added Sec.7/8 POCSO Act. On 26.06.2015, counseling was given to the victim. She was again taken for medical examination and was State Vs. Salman 6 medically examined vide Ex.P-5. She also got reports from Gyne. as Ex.P-4. After medical examination, Doctor handed over evidence collection kit which she took into possession vide memo Ex.PW6/C. On 30.06.2015, victim was produced before CWC. On 01.07.2015, victim was produced before DLSA and on 03.07.2015 she took the exhibits vide RC no. 47/21 Ex.PW6/D and deposited the same with FSL. She got acknowledgement slip Ex.PW6/E from FSL and handed over the same to HC Gajender MHC(M). on 07.07.2015, she moved an application Ex.PW6/F for getting the ossification test of the child. On 17.07.2015 ossification test was got conducted. On 19.07.2015 she got report of ossification test Ex.P-5. On 22.07.2015, she received call from the complainant that she was coming with accused Salman. Accused was produced before her. She interrogated the accused and arrested him. Accused was got medically examined. On 26.07.2015 she searched accused Sajila and was not traced. On 28.07.2015, she took the sealed pullandas of the examination of accused vice RC No. 54/21 Ex.PW6/G and deposited the same with FSL vide acknowledgement slip Ex.PW6/H. She completed the investigation and filed charge-sheet. Later on she received FSL result Ex.PW5/A and filed the same in the form of supplementary charge-sheet.
11 Following documents were admitted by State Vs. Salman 7 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, if pages any
1. Copy of FIR 3 Admitted To be read Ex. P-1 in evidence
2. Certificate u/s 1 Admitted To be read Ex. P-2 65B of Indian in Evidence Act evidence issued by DO
3. MLC of victim 1 Admitted To be read Ex. PX dated in 23.06.2015 evidence prepared by Dr. Jeeno Jayan
4. Noting of Dr. 1 Admitted To be read Ex. P-3 Meenu Keskar in on the MLC of evidence victim
5. MLC of victim 1 Admitted To be read Ex. PY dated in 26.06.2015 evidence prepared by Dr. Ankit Saxena
6. Gyne 1 Admitted To be read Ex. P-4 examination of in victim prepared evidence by Dr. Kavita Manchanda
7. Medical 1 Admitted To be read Ex. P-5 State Vs. Salman 8 examination in report of Dr. evidence Kavita
8. Ossification 1 Admitted To be read Ex. P-6 report of victim in evidence
9. MLC of accused 1 Admitted To be read Ex. P-7 prepared by Dr. in Uma Kant evidence
10. Potency report 1 Admitted To be read Ex. P-8 of accused in prepared by Dr. evidence Manasa
11. Proceedings u/s 4 Admitted To be read Ex. P-9 164 Cr.P.C. in recorded by Sh. evidence Puneet Pahwa, the then, Ld. MM
12. Statement of Ct. 1 Admitted To be read Ex. P-10 Rajesh in evidence
13. Statement of 1 Admitted To be read Ex. P-11 W/SI Urmila in evidence
14. Statement of 1 Admitted To be read Ex. P-12 W/Ct. Hem Lata in evidence
15. Statement of Ct. 1 Admitted To be read Ex. P-13 Rajesh No. in 1134/ND evidence
16. Statement of 1 Admitted To be read Ex. P-14 State Vs. Salman 9 HC Gajender in and entry made evidence by him in register no.19 12 On account of the admission/denial of documents, following witnesses were dropped by the prosecution:-
1. SI Dhruv Narayan As the FIR and certificate u/s 65B Indian Evidence Act are already exhibited as Ex. P-1 and Ex. P-2
2. Dr. Jeeno Jayan As his report is already exhibited as Ex. PX
3. Dr. Meenu Keskar As her report is already exhibited as Ex. P-3
4. Dr. Ankit Saxena As his report is already exhibited as Ex. PY
5. Dr. Kavita Manchanda As her report is already exhibited as Ex. P-4
6. Dr. Kavita As her report is already exhibited as Ex. P-5
7. Dr. Harmeet, Dr. As their report is already Shiwani Mehra, exhibited as Ex. P-6 Dr.Alka Goel, Members of the Medical Board
8. Dr. Uma Kant As his report is already exhibited as Ex. P-7
9. Dr. Manasa As his report is already exhibited State Vs. Salman 10 as Ex. P-8
10. Sh. Puneet Pahwa, the As the proceedings conducted then, Ld. MM by him is already exhibited as Ex. P-9
11. Ct. Rajesh As his statement is already exhibited as Ex. P-10
12. W/SI Urmila As her statement is already exhibited as Ex. P-11
13. W/Ct. Hem Lata As her statement is already exhibited as Ex. P-12
14. Ct. Rajesh No. As his statement is already 1134/ND exhibited as Ex. P-13
15. HC Gajender As his statement is already exhibited as Ex. P-14
13 After the closure of PE, statement of accused was 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.
14 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:-
15 As far as the applicability of POCSO Act is concerned, prosecution has relied ossification test report of victim Ex.P-6. According to this document, the age of victim is opined between State Vs. Salman 11 15-16 years. Now this document is admitted by accused u/sec.294 Cr.P.C. and not disputed. As the incident is alleged to have happened prior to the date of this ossification examination, it can be safely concluded that victim was minor and POCSO Act is attracted.
16 It was the case of prosecution that accused Salman kidnapped the victim with the help of one Ms. Sajila (not traceable). It is also the case of prosecution that accused Salman committed penetrative sexual assault on the victim during the period when the victim was with him.
17 However, from the perusal of testimony of victim as well as mother of the victim no such incident is deposed. Moreover, there is nothing in FSL report Ex.PW5/A which suggests that any sexual act took place. Even the IO had deposed in her cross-examination "it is correct that victim had stated before me on 23.06.2015 that she had gone to the house of her mausi Shajida as a dispute had taken place between her and her mother".
18 In these circumstances, prosecution failed to prove its case.
19 So, accordingly, accused Salman is acquitted of the offences u/sec.376 IPC and Sec.6 POCSO Act.
State Vs. Salman 12 20 Bail Bond u/sec.437A Cr.P.C. furnished and accepted.
21 Copy of order be given dasti to prosecution.
22 File be consigned to the Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 15.07.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi State Vs. Salman 13 SC No. 8975/16 State Vs. Salman FIR No. 147/15 PS : Chankaya Puri U/sec.376 IPC & Sec.6 POCSO Act 15.07.2016 Present: Sh. Ravindra Kumar, Ld. APP for State.
Sh. S. K. Nautiyal counsel for accused. Accused present on bail.
Final arguments heard.
Bail Bond u/sec.437 A Cr.P.C. furnished and accepted.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 15.07.2016 At 3.00 p.m. Present: Sh. Ravindra Kumar, Ld. APP for State.
Sh. S. K. Nautiyal counsel for accused. Accused present on bail.
Vide separate order announced and dictated in open court, accused Salman is acquitted for the offences u/sec.376 IPC and Sec.6 POCSO Act.
Copy of order be given dasti to prosecution.
File be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 15.07.2016 State Vs. Salman