Delhi District Court
State vs Mr.Ajeet Shrivastav. -:: Page 11 Of 10 ... on 27 October, 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 : 50/2017.
Old Sessions Case Number : 15/2017.
State
versus
Mr.Ajeet Shrivastav
Son of Mr.Mukesh Shrivastav,
Resident of House No.A-79, Katyayni Vihar,
Begampur, Delhi.
First Information Report Number : 698/16.
Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code
and under section 4 of the POCSO Act.
Date of filing of the charge sheet : 24.01.2017.
Arguments concluded on : 27.10.2017.
Date of judgment : 27.10.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with counsel, Mr. Hari Krishan.
Parents of the prosecutrix are also present.
Investigation Officer SI Pooja Saini is present.
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New Sessions Case Number : 50/2017
Old Sessions Case Number : 15/17.
First Information Report Number : 698/16.
Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code
and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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JUDGMENT
1. Mr.Ajeet Shrivastav, the accused, has been charge sheeted by Police Station Punjabi Bagh for the offences under sections 363/376 Indian Penal Code (hereinafter referred to as the IPC) and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Ajeet Shrivastav has been prosecuted on the allegations that on 27.11.2016 at about 06:30 pm, he had kidnapped the prosecutrix (who is a minor girl and who was born on 09.10.1999) from her residence; took her to Begumpur, Rohini, with the intention that she may be forced to marry with him and she may be forced or seduced to do illicit intercourse with him; in the intervening night of 27.11.2016 and 28.11.2016, he had committed penetrative sexual assault on the prosecutrix and had raped her.
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 identities of Ms.X, Mr.Z and Ms. Y are given to the prosecutrix, her father and her mother respectively, in order to protect the identity of the prosecutrix.
New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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4. After completion of the investigation, the charge sheet was filed before the Court of the learned Predecessor on 24.01.2017.
5. After hearing arguments, charge for offences under sections 363/366 of the IPC, under section 4 of the POCSO Act and under section 376 of the IPC was framed against accused Mr.Ajeet Shrivastav vide order dated 06.04.2017 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 one (03) witness 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 the Vulnerable Witness Deposition Room in camera. Her father Mr.Z as PW2 and her mother Ms. Y as PW3 have also been examined in camera.
8. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix. Guidelines for recording evidence of vulnerable witnesses in New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
9. Preliminary inquiries were made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
10.The prosecutrix Ms.X as PW1 has seen accused Mr. Ajit Shrivastav who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused, as Ajeet. She has deposed on questioning that "Where did this accused take you in November, 2016?" with the answer that "Main Apni Marzi se Hi Gayi thi. Hum Logo Ne rent Park Kamra Liya Tha Begumpur Mein." She has also denied the physical relations with accused.
11.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 deposed that "It is New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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correct that I was taken to hospital for medical examination. It is wrong to suggest that I have been won over by accused. It is wrong to suggest that I am deposing falsely since I have got married with the accused".
12.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed on questioning that "Is it correct that your parents had pressurized you to depose against this accused"
by answering that "It is correct" and on questioning that "Is it correct that you have voluntarily deposed today without any pressure" by answering that "It is correct."
13.The parents of the prosecutrix Mr.Z (PW2) and Ms. Y (PW3) have also not deposed anything incriminating against the accused.
14.All the prosecution witnesses PWs 1 to 3 have not deposed an iota of evidence of accused Mr.Ajeet Shrivastav that he committed the offences of kidnapping the minor prosecutrix, forcing her to marry him or seducing her to do illicit intercourse with him, committing penetrative sexual assault upon her and raping the prosecutrix.
15.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 have not assigned any criminal role to the accused as well as her parents (PWs 2 and 3) New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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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) and her parents, Mr.Z (PW2) and Ms.Y (PW3), who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
16.The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Ajeet Shrivastav 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 have also not deposed anything incriminating against the accused.
17.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.
New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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18.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her parents (PWs 2 and 3), 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."
19.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
20.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 New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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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.
21.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).
22.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.Ajeet Shrivastav. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
23.Consequently, no inference can be drawn that the accused Mr.Ajeet Shrivastav is guilty of the charged offences under sections 363 and 366 of the IPC, under section 4 of the POCSO Act and under section 376 of the IPC.
New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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24.There is no material on record to show that on 27.11.2016 at about 6.30 pm, accused had kidnapped the prosecutrix (who is a minor girl and who was born on 09.10.1999) from her residence; he had kidnapped the prosecutrix and took her to Begumpur, Rohini, with the intention that she may be forced to marry with him and she may be forced or seduced to do illicit intercourse with him; in the intervening night of 27.11.2016 and 28.11.2016, he had committed penetrative sexual assault on the prosecutrix and had raped the prosecutrix.
25.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.Ajeet Shrivastav for the offences of kidnapping the prosecutrix, forcing her to marry him or seducing her to do illicit intercourse with him, committing penetrative sexual assault upon her, and raping the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Mr.Ajeet Shrivastav has committed any of the charged offences.
26.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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home the charge against accused Mr.Ajeet Shrivastav for the offences under sections 363, 366 of the IPC, under section 4 of the POCSO Act and under section 376 of the IPC. The presumption of guilt against the accused under the POCSO Act stands rebutted in view of the testimonies of the prosecutrix and her parents.
27.Consequently, accused Mr.Ajeet Shrivastav is hereby acquitted of the charges for the offences of kidnapping the prosecutrix;
forcing her to marry him or seducing her to do illicit intercourse with him; committing penetrative sexual assault upon her; and raping the prosecutrix punishable under sections 363 and 366 of the IPC, under section 4 of the POCSO Act and under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
28.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
29.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
30.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-
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31.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 27th day of October, 2017. Additional Sessions Judge-01, Special Court under the POCSO Act, West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 50/2017 Old Sessions Case Number : 15/17.
First Information Report Number : 698/16. Police Station : Punjabi Bagh.
Under sections 363/376 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Ajeet Shrivastav. -:: Page 11 of 10 ::-