Delhi District Court
State vs Munna Lal on 19 September, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44475/15
FIR No. 19/14
PS Gokal Puri
U/s 354A/324 IPC and
Section 10 POCSO Act.
State
Versus
Munna Lal
S/o Sh. Devi Ram,
R/o C11/500 Brij Puri,
Delhi. ....Accused.
Date of Institution : 09.01.2015.
Date of Arguments : 19.09.2017.
Date of Pronouncement : 19.09.2017.
(Section 437A Cr.P.C stands complied with)
JUDGMENT
Briefly stated the case of the prosecution is, that on 05.01.2014, on receipt of DD No. 24A, ASI Dev Raj alongwith Ct. Budh FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 1 of 16 ASJ01/NE/KKD: 19.09.2017 Prakash went at the spot i.e. CC7/320, Brij Puri. There they met complainant M, aged about 11 years. W/ASI Sushila was called from the police station and NGO official was also called. Statement of complainant was recorded by NGO official wherein she alleged that on 05.01.2014 at about 03.30 p.m, she had gone to get change for money at Bankey Bihari Dairy. Munna Lal, owner of the shop was sitting there. On being asked for change, he said that he did not have change and then he pulled the complainant inside the shop. He then bit on her right cheek. When she started crying, he fled from there. Hence, the present FIR was filed u/s 324/354A IPC and u/s 10 POCSO Act. After completion of investigation, chargesheet has been filed.
2. On 20.05.2015, charge u/s 354A IPC; in alternate u/s 10 of POCSO Act and u/s 324 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution has examined 09 witnesses to prove its case.
4. PW1 is lady Ct. Kavita. She deposed that on 05.01.2014, ASI Urmila called her at H. No. C11/500, Brij Puri. On the directions of ASI, she took the victim to GTB Hospital for medical examination. Internal medical examination of victim was not conducted. After medical examination of victim, she handed the MLC and custody of victim to ASI Urmila.
5. PW2 is Sh. Gajender Singh from MCD, Shahdara. He had FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 2 of 16 ASJ01/NE/KKD: 19.09.2017 brought the record regarding birth of victim. He deposed that as per records, the victim was born on 05.07.2002 at about 07.40 p.m. at SDN Hospital. He proved the copy of birth report of victim as Ex.PW2/A.
6. PW3 is Ct. Budh Prakash. He deposed that on 05.01.2014, on receipt of DD No. 24A, he alongwith ASI Devraj went at spot i.e. C 11/500, Brijpuri, Banke Bihari Diary. There they met the victim and her mother, who made allegations against Munna Lal. Thereafter, ASI Devraj called WASI Sushila from the police station. NGO official Kavita also reached at the spot. ASI Sushila and NGO official recorded statements of victim. Thereafter, victim was sent to GTB Hospital. ASI Sushila prepared rukka and handed it to him for registration of FIR. Thereafter, he went to the police station and after registration of FIR, handed the rukka and copy of FIR to IO. He further deposed that at the instance of victim, accused Munna Lal was apprehended from his house and was arrested vide memo Ex.PW3/A. Personal search of accused was conducted vide memo Ex.PW3/B. He took the accused to GTB Hospital for his medical examination. After medical examination, he handed the MLC to IO.
7. PW4 is the victim. Her testimony shall be considered at a later stage as and when required.
8. PW5 is Retired ASI Braham Singh. He deposed that on 05.01.2014 at about 04.31 p.m., he received a call from control room regarding a quarrel. He recorded DD No 24A which was Ex.PW5/A. Copy FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 3 of 16 ASJ01/NE/KKD: 19.09.2017 of DD was marked to ASI Dev Raj for further action. At about 07.20 p.m., ASI Sushila handed him rukka for registration of FIR. He made endorsement, Ex.PW5/B, on the rukka. At his instance, computer operator recorded FIR which was Ex.PW5/C. After registration of FIR, he handed the original rukka and computerized FIR to ASI Sushila for further investigation.
9. PW6 is Smt. S. She is mother of the victim. Her testimony shall be considered at a later stage as and when required.
10. PW7 is SI Urmila. She deposed that on 09.01.2014, investigation of this case was handed to her. She collected birth certificate of victim from her father and seized it vide memo Ex.PW7/A. Birth certificate of victim was Ex.PW7/B. She got the birth certificate verified from MCD and MCD officials informed her that actual date of birth was 05.07.2002. After completion of investigation, she filed the charge sheet.
11. PW8 is Dr. P.K. Phukan. He deposed that on 05.01.2014, at about 06.30 p.m., Dr.Fahad Khan examined victim and prepared MLC Ex.PW8/A. Dr. Fahad Khan also prepared emergency card Ex.PW8/B.
12. PW9 is ASI Sushila. She is the IO of the case. Her testimony shall be considered at a later stage as and when required.
13. Thereafter, on 30.01.2017, statement of accused u/s 313 Cr.P.C was recorded and accused preferred to lead evidence in his defence. He examined Sh. Hammad as DW1 and one Dal Chand as DW2.
FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 4 of 16 ASJ01/NE/KKD: 19.09.2017
14. I have heard learned Addl. PP for the State as well as learned counsel for the accused.
15. Learned Addl. PP has contended that the victim in her testimony has been consistent and her version has been corroborated by her mother to whom she immediately informed after the incident. He has further contended that the medical evidence shows bite marks on the right cheek of the victim which also corroborates the testimony of the victim. He has further contended that it is a well settled law that in such cases, sole testimony of the victim is sufficient to bring home the guilt of the accused. He has therefore, contended that the prosecution has proved its case beyond all reasonable doubts.
16. On the other hand, learned counsel for accused has contended that the accused has been falsely implicated in this case and in order to implicate the accused in a serious offence, a mere quarrel has been given the colour of sexual assault. He has further contended that it was mother of the victim who was the original informant in this case and had made a call to PCR. On her call, DD No. 24A was recorded in the police station which was only with regard to a quarrel. He has further contended that as per the case of the prosecution, the incident had happened at 03.30 p.m. and DD No.24 A was recorded around 04.30 p.m. whereas the medical examination of the victim was conducted at 06.30 p.m. There is a long gap of 03 hours between the incident and the MLC of the victim and therefore, bite mark FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 5 of 16 ASJ01/NE/KKD: 19.09.2017 could have been procured. Secondly, no sketch of that bite mark was prepared by the doctor. No impressions of bite mark were checked or no impression of teeth of accused were taken to match them with that bite mark. He has further contended that the entire investigation is coloured with bias because as per the testimony of PW3 Ct Budh Prakash, when she reached the spot, IO ASI Sushila prepared the rukka and handed it to him for registration of FIR. He went to the police station and after getting the FIR registered, he returned to the spot and handed the copy of FIR and original rukka to the IO. On the other hand, PW5 Retired ASI Braham Singh, the Duty Officer had deposed that at around 07.20 p.m., ASI Sushila handed him rukka for registration of FIR. After registration of computerized FIR, he handed the original rukka and computerized FIR to ASI Sushila for further investigation. Similarly, ASI Sushila (PW9) deposed that she had prepared rukka Ex.PW9/A, and handed that to Duty officer for registraion of FIR. Learned counsel for accused has further contended that the testimony of the victim cannot be relied upon because of many contradictions in her testimony and in absence of any corroboration, the testimony of the victim cannot be believed especially in view of the fact, that there were opportunities of corroboration available with the IO but IO did not try to join any public witness. He has further contended that it is an admitted case of the prosecution that the place where the shop of the accused was situated i.e. where the incident had happened is a crowded FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 6 of 16 ASJ01/NE/KKD: 19.09.2017 place and there are many shops adjoining or in front of the shop of accused. Therefore, public persons must have seen or at least heard the cries of the victim when she allegedly shouted 'auntyaunty'. However, IO has admitted in her cross examination that she did not make any efforts to join any public witness. He has further contended that the IO malaciously did not join any public witness as no public witness was supporting the case of the victim, a fact that has been admitted by the IO in her cross examination as well as by the mother of the victim.
17. I have considered the rival submissions.
18. There is no finding fault with the submission of learned Addl. PP that in such cases, the sole testimony of the prosecutrix / victim can be sufficient to arrive at a finding of guilt. However, this settled proposition of law is circumscribed with a condition that the testimony of the victim has to be of sterling quality.
19. In this regard, Hon'ble Supreme Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, has held as under: "22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 7 of 16 ASJ01/NE/KKD: 19.09.2017 be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. to be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
20. Further, in Ramdas v. State of Maharashtra, (2007) 2 SCC 170, it was held as under:
23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality.
FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 8 of 16 ASJ01/NE/KKD: 19.09.2017
21. Further, in State of Rajasthan v. Babu Meena (2013) 4 SCC 206, it has been held as under:
9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, of found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.
22. I have carefully considered the testimony of victim and I find that there are certain contradictions/ improvements which are emerging in her testimony and which makes the court difficult to believe her testimony in toto.
23. The victim, who appeared as PW4, deposed that on the day of incident, she had gone to purchase some articles. The shopkeeper was not having change and on his advice, she went to the shop of accused, which was in gali no. 11. She asked for change of Rs.5/ from the accused but he denied having it. Accused then made her sit with him and then suddenly, he bit her on her right cheek. She started shouting 'aunty aunty' on which accused fled away from the shop. She went to her house and told about the incident to her mother. Her mother brought her to the shop of accused and FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 9 of 16 ASJ01/NE/KKD: 19.09.2017 asked him why he had done so with her? Accused stated that he had only done this thing now, and if the matter was reported to police then they should see what he would do next with her. Her mother called PCR and accused again ran away from the shop. Police reached there and made inquiries from her and her mother.
24. During her cross examination on this point, she deposed that she did not know the name of the shopkeeper on whose shop she had gone to purchase goods and who had asked her to bring the change. The shop of the accused was situated in front of that shop. She had not stated to the police that she had gone to another shop who asked her to bring change from the accused.
25. Therefore, the victim in her examination in chief has made an improvement upon her earlier version. In her complaint Ex.PW4/A as well as in her statement u/s 164 Cr.P.C (Ex.PW4/B), she had not stated that she had gone to buy something from some other shop and that shopkeeper asked her to bring change. In her complaint as well as in her statement u/s 164 Cr.P.C, she had stated that she had gone straight to the shop of accused to get change. This version of hers is similar to that of her mother who appeared as PW6 and deposed that she had sent the victim to the shop of accused to get change.
26. Another contradiction which has emerged is with regard to the amount for which the victim was seeking change from the accused. This FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 10 of 16 ASJ01/NE/KKD: 19.09.2017 contradiction has emerged between the testimony of the victim and of her mother. The victim had deposed that she had asked the accused for change of Rs.5 whereas her mother had stated that she had sent the victim to get a change of Rs.10/.
27. More important than these contradictions is the fact that in today's world it is highly improbable that somebody would be seeking a change of Rs.5/ to sell something to someone or somebody would be going to someone seeking a change of Rs.10/.
28. It is also unexplained why mother of the victim who is residing in Gali No. 7 of the same area had sent the victim not to a nearby shop situated in her gali but to the shop of accused which was situated at gali no. 11 or why the victim for seeking such a change would travel all the way from gali no. 7 to gali no. 11.
29. Therefore, I find that the testimony of the victim and her mother need corroboration before they can be believed upon. This was especially in view of the fact that there was a possibility of corroboration which was available with the IO. It is more so because in the present case, the crime had allegedly taken place in broad day light and at a place which was very crowded and had shops open adjoining to or in front of it.
30. With regard to corroboration of testimony of victim, it has been held by Hon'ble Supreme Court in Ramji Suriya v. State of Maharashtra, AIR 1983 SC 810: 1983 Cr.L.J 2018 as under:
FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 11 of 16 ASJ01/NE/KKD: 19.09.2017
This is no doubt that even where there is a sole eyewitness of a crime, conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill suggested.
31. Similarly, in State v. Kachare Sada, AIR 1961, Guj 20, it has been held as under: Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each cae and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
32. Let us see if there was a possibility that the witnesses could have been found to corroborate the testimony of victim?
33. As per the victim, the shop where she had gone to purchase articles was situated in front of the shop of accused. Therefore, in normal course of things, if such an incident had happened and as stated by the victim, she had shouted and the accused would have run away, this fact might have been noticed by the said shopkeeper and he could have corroborated the version of the victim. If not this, he could have ate least FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 12 of 16 ASJ01/NE/KKD: 19.09.2017 corroborated the victim to the extent that she had gone to his shop to purchase something and that he had asked her to get change for Rs.5/.
34. However, IO did not make any efforts to examine this person. It has been admitted by the IO, Ct. Budh Prakash, victim and her mother that the area where shop of accused was situated, is highly crowded place and there are shops adjoining to or in front of shop of accused. Therefore, if any such incident had happened, somebody from those shops should have noticed something. IO during her cross examination admitted, that when she reached the spot, many public persons were present there and no public person supported the version of the complainant or the victim and thus, she did not record their statements. This part of the testimony of IO clearly signifies that as the public persons were not supporting the version of the victim, so she did not record their statements. This put a question mark on the fair investigation by the IO being fair.
35. Therefore, the testimony of two defence witnesses brought by the accused becomes important. These two defence witnesses are DW1 Hammad, who is having a mobile shop in front of the shop of accused and DW2 Dal Chand who is neighbour and having shop adjoining to the house/shop of accused.
36. DW1 Hammad deposed that he knew accused Munna Lal as accused was having grocery shop infront of his mobile shop. On 05.1.2014, at about 3.15/3.30 pm, one small girl came at the shop of accused. After FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 13 of 16 ASJ01/NE/KKD: 19.09.2017 sometime, while he was engaged in his work, he heard the accused shouting at that girl and thereafter she went away. She returned with her mother and 45 other persons. A quarrel took place between them and the accused. He also reached there. Thereafter, police came at the spot and inquiries were made from him. He told them the above facts and further that the girl was standing behind the counter and the accused had not bitten her. However, the police arrested the accused.
37. During his cross examination, he deposed that he was not a summoned witness but had come to depose on being asked by accused. He had good relations with accused. On 06.01.2014, he came to know that accused had been arrested. After coming to know of arrest of accused, he did not go to police station to state his version. He did not give any written representation to the police. He denied that he was not present on the spot or that it was for this reason, his statement was not recorded.
38. DW2 Dal Chand deposed that he knew accused Munna Lal as accused was having grocery shop adjacent to his house. On 05.1.2014, at about 3.00/3.30 pm, he was present at his shop. A small girl, aged about 10/11 years, came at the shop of accused and asked for change but accused refused and shouted at her and asked her to go away but she was insisting. After sometime, she returned with her mother and some altercation took place between her and the accused. Thereafter, mother of that girl made a call to the police. Police came at the spot. He was also inquired from and FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 14 of 16 ASJ01/NE/KKD: 19.09.2017 he told them the above facts and further that the girl was standing behind the counter and the accused had not bitten her. However, the police arrested the accused.
39. During his cross examination, he denied that he was informed by accused about the facts he had to deposed or that he deposed on the lines instructed by accused. He denied that he was not present at the spot. Accused was apprehended at about 03.00 or 04.00 p.m. After the arrest of accused, he did not go to police to inform them about the facts which according to him were correct. He denied that he did not go to the police station to give any written statement because he was not an eye witness.
40. The aforesaid two defence witnesses are not chance witnesses. These are natural witnesses whose presence at the spot is justified by their occupation. The prosecution has not challenged the fact that they were having their shops at the places stated by them. In fact, these are witnesses who should have been examined by the IO in natural course of investigation.
41. Their testimony has not been shaken in cross examination by learned Addl. PP. Therefore, the defence witnesses have raised a probability that no such incident as alleged by the prosecution might have happened.
42. In view of the above discussion, I find that there are certain contradictions and improvements in the testimony of victim and her mother which had necessitated for further corroboration but IO, despite having the FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 15 of 16 ASJ01/NE/KKD: 19.09.2017 opportunities to corroborate, did not seek any public witness because the public witnesses had not supported the case of the victim. On the contrary, the natural witnesses DW1 and DW2 have not supported the case the victim and I have no reasons to disbelieve them. I accordingly find that the prosecution has not been able to prove its case beyond all reasonable doubts. The accused is entitled to benefit of doubt. Accused is accordingly acquitted of all the charges framed against him. His bail bond stands cancelled. Surety stands discharged. File be consigned to record room.
Announced in open court (Parveen Singh) today on 19.09.2017. Judge Special Court (POCSO Act) (This judgment contains 16 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 19/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Gokalpuri 16 of 16 ASJ01/NE/KKD: 19.09.2017