Delhi District Court
State vs Sanjay Samal @ Sagar on 29 January, 2015
SC No. 57/2/13
FIR No. 189/13
PS.Dabri
State VS.Sanjay Samal @ Sagar
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE01, DWARKA COURTS, NEW DELHI
In the matter of :
SC No. :
57/2/2013
FIR No. :
189/13
Police Station :
Dabri
Under Section :
u/s 12 of The Protection of
Children from Sexual
Offences Act, 2012.
Fresh charge : 02.08.2013
sheet received
by way of
assignment.
Reserved for : 23.01.2015
judgment on
Judgment : 29.01.2015
announced on
State
Versus
Sanjay Samal @ Sagar
S/o Sh.G.D. Samal
R/o B128, Gali No.24, Mahavir Enclave
Part II, New Delhi ... Accused
JUDGMENT
1. The prosecution story in brief is that on 09.04.2013 on receipt of DD No.32A, IO SI Krishan Kumar alongwith Constable Mahesh had gone to H.No.B116, Gali No.24, SC NO: 57/2/13 1/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar Mahavir Enclave, PartII, Delhi [The name of child victim is being withheld to protect her identity U/s 33(7) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act).] where they met complainant/child victim, who made a written complaint to them.
2. In her written complaint Ex.PW1/A, complainant/child victim had stated that she is a student of 10th class and accused Sagar, who was staying in the same gali in which she was residing, used to constantly stalk her anywhere and made her going outside difficult. Complainant/child victim further stated that on 09.04.2013 at about 4.00 p.m., accused after standing in front of her house, used obscene and abusive language. Complainant/child victim stated that they have reported the matter to his family, but accused did not understand. Complainant/child victim stated that accused used to stalk her till her school, misbehaved with her in gali, used abusive language in the gali of her relatives, used to threaten to kill her brother and used wrong language to her sisters.
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3. On the basis of complaint of child victim, FIR NO.189/13 PS Dabri was registered under sections 354A/509/506 IPC and the matter was taken up for investigation. During the course of investigation, statement of child victim under section 164 Cr.P.C was recorded.
4. After completion of investigation, accused was charge sheeted for the offence under sections 354A/506/509 IPC and under section 12 of POCSO Act and chargesheet was directly filed before this court. After taking cognizance, accused was summoned and copy of chargesheet was supplied to him.
5. After hearing the arguments and perusing the statement of child victim and the allegations, the court came to the conclusion that offence under section 506 IPC is not made out as no date, time and place has been mentioned by complainant/child victim in her complaint Ex.PW1/A as to when and where, the alleged threat of killing her brother was made. From the allegations, offence under section 12 of POCSO Act was made out and therefore, accused was charged for the SC NO: 57/2/13 3/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar offence under section 12 of POCSO Act to which he pleaded not guilty and claimed trial. Thereafter, the matter was posted for prosecution evidence.
6. Prosecution has examined in all 09 witnesses.
7. PW1 Child victim has deposed on oath all the facts as stated in her written complaint Ex.PW1/A. PW1 further deposed that her father had made a complaint regarding harassment to father of accused but accused continued with his misbehaviour. PW1 deposed that on 09.04.2013 at about 4 p.m., accused came in front of her house in drunken condition and shouted loudly that she is his girl friend and accused is having setting with her and used abusive language. PW1 deposed that after sometime accused left for his house and she made a call to the police at 100 number. PW1 proved her written complaint vide Ex.PW1/A. PW1 deposed that she accompanied the police to the house of accused but by that time, he had left. PW1 deposed that on 13.04.2013, accused was apprehended by police in his presence from her street. PW1 also proved her statement under section 164 Cr.P.C.vide Ex.PW1/C. PW1 child victim SC NO: 57/2/13 4/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar correctly identified the accused.
8. In her cross examination by accused, PW1 deposed that on the date of incident, all her family members except her father, who was in the office, were present in the house. PW1 deposed that police had reached the spot within half and hour of her making call at 100 number from her mobile number. PW1 denied that accused was a frequent visitor in her house being friend of her brother. PW1 deposed that the relative with whom accused used to misbehave was her Bua (paternal aunt)but they had never made any complaint to the police. PW1 denied that as accused never misbehaved with her Bua that is why no police complaint was made by her against the accused. PW1 further deposed that her family members did not make any complaint with regard to threat of killing of her brother by the accused. PW1 deposed that she did not make any complaint regarding teasing by accused while going to school prior to the present case against the accused. PW1 was confronted with her statements Ex.PW1/A made to the police and Ex.PW1/C made before Ld.Magistrate wherein she had not mentioned the fact that accused SC NO: 57/2/13 5/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar was drunk. PW1 admitted that on the date of incident, parents of accused were out of town to Orissa. PW1 deposed that after 09.04.2013, she met the police when she had informed the police regarding accused on 13.04.2013. PW1 deposed that police had prepared the site plan of the place of incident in her presence on 09.04.2013. PW1 deposed that on the date of incident, they were getting water supply from MCD and not through tanker. PW1 denied that residents of their street used to take water through tankers on the date of incident and as of today also they get water supply through water tankers. PW1 deposed that she know a boy namely Mukesh residing in their street but she do not know any lady namely Sumitra. PW1 denied that in the presence of Mukesh and Sumitra, a quarrel had taken place with regard to taking of water from the water tanker between her and the accused and no such incident took place. PW1 denied that her cousin sisters used to talk to accused and he also used to do some work like getting the mobile phone recharged using his own money, of her cousins sisters and her. PW1 denied that on one occasion, father of accused had beaten up her brother by giving him two slaps and also accused.
SC NO: 57/2/13 6/34SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar PW1 denied that after the incident of slapping by the father of accused, their relations got strained and accused has been falsely implicated in the present case. PW1 denied that on 13.04.2013, her brother had called the accused on the pretext of compromise and thereafter he was got arrested from the police. PW1 denied that her date of birth is not 03.03.1998. PW1 denied that he is deposing falsely to falsely implicate the accused due to dispute over water and due to incident of slapping of her brother by the father of accused.
9. PW2 ASI Ramesh Kumar is the duty officer. PW2 deposed that on 09.04.2013, he was working as duty officer and his duty hours were from 4.00 p.m.to 12.00 midnight. PW2 deposed that on that day at about 5.30 p.m., he received a call from G57 to the effect that one boy was misbehaving with the girl. PW2 deposed that the said call was reduced into writing vide DD No.32A vide Ex.PW2/A. PW2 proved the registration of FIR No. 189/13 vide Ex.PW2/B.
10.In his cross examination by accused, PW2 denied that FIR and DD entry is antedate and ante time. PW2 SC NO: 57/2/13 7/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar admitted that column no.15 of the FIR was not duly filled. PW2 denied that the FIR was sent to the court after 45 days of the incident.
11.PW3 is the father of child victim. PW3 deposed that about 4 months prior to the incident, he went to the house of accused and met the elder brother of accused and made a complaint against the accused that he used to harass her daughter and used to taunt and misbehave with her daughter while going and coming back from school. PW3 deposed that brother of accused assured him that accused will not repeat the aforesaid acts in future. PW3 deposed that on the day of incident, he received a telephonic call from his wife, who told him that accused is abusing her daughter/child victim while standing in front of their house. PW3 deposed that at that time, he was present in his office and asked his wife to make a call at 100 number. PW3 deposed that when he returned at about 5.00 p.m., he found a PCR van there and some police officials from the PS Dabri also reached at the spot and they made efforts to trace the accused but he could not be traced on that day. PW3 deposed that about 23 days after the incident, his daughter/child SC NO: 57/2/13 8/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar victim noticed accused roaming in the vicinity. PW3 deposed that thereafter, his daughter/child victim made a call at 100 number and police officer reached at the spot and accused was apprehended at the instance of his daughter/child victim.
12.In his cross examination by Ld.Addl.PP for state, PW3 Father of child victim admitted that the date of incident is 09.04.2013.
13.In his cross examination by accused, PW3 admitted that his daughter had not made any police complaint when he reached his house. PW3 denied that his daughter/child victim gave complaint to police after consulting him. PW3 admitted that prior to 09.04.2013, no complaint was made to the police. PW3 denied that his son was having friendship with the accused and he was frequent visitor to his house. PW3 denied that on one occasion, father of accused had slapped accused and his son as they were found drinking. PW3 denied that relations between his family and that of accused family had become strained due to beating of his son by father of accused. PW3 denied that in their area, water is SC NO: 57/2/13 9/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar supplied through water tanker. PW3 denied that on the date of incident, a quarrel had taken place between his family and accused over water at water tanker. PW3 denied that he had made a false complaint through his daughter against accused. PW3 denied that members of RWA had met him with regard to false complaint made by his daughter. PW3 denied that his daughter/child victim was not born on 03.03.1998. PW3 denied that accused has been falsely implicated on account of dispute over water. PW3 admitted that no incident took place in his presence and he came to know about the facts through his daughter.
14.PW4 Sh.Avdesh Sharma deposed that he is carpenter by profession. PW4 deposed that about 810 months back at about 2.30 p.m.3.00 p.m., he was present at his place of duty at Sanmati Apartment, near Dwarka Telephone Exchange, Sector6, Dwarka. PW4 deposed that at about 2.30 p.m., he received a telephonic call from his son, namely, Dheeraj Sharma, who told him that accused is quarreling with him over the issue of taking water from the water tanker in the street. PW4 deposed that he also made understand his son not to indulge in any SC NO: 57/2/13 10/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar altercation with the accused. PW4 deposed that at about 6.00 p.m.when he returned back to his house and went to the house of accused, he did not find parents of accused there as they had gone to Odisha. PW4 deposed that police officers were present in front of house of accused. Since PW4 was not supporting the prosecution case, he was allowed to be cross examined by state.
15.In his cross examination by ld.Addl.PP for state, PW4 denied that his statement was recorded by the police officer or that he had stated to the police officer in his statement that when he was passing through the street on 09.04.2013, he saw that accused was abusing and misbehaving with a girl or that the said girl told him that accused used to taunt and misbehave while going and coming back to school. PW4 denied that he was deposing falsely in order to save the accused.
16.PW5 Ms.Swati Katiyar, Ld.MM, Dwarka Courts, New Delhi has proved the recording of statement of child victim under section 164 Cr.P.C. already Ex.PW1/C.
17.PW6 Sh.Chandu Lal is the Lab Assistant from SC NO: 57/2/13 11/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar Government Sarvodaya Kanya Vidhyala, Vikas Puri, New Delhi. PW6 proved the date of birth of child victim as 09.08.1999 vide Ex.PW6/A.
18.In his cross examination, PW6 deposed that there is no document regarding birth certificate from MCD or issued by any Gram Panchayat/competent authority. PW6 denied that he had brought the false record. PW6 deposed that he does not have any personal knowledge regarding the present case.
19.PW7 Constable Mahesh deposed that on 09.04.2013, at about 5.30p.m, he alongwith SI Krishan Kumar reached at B116, Gali no.24, Mahavir Enclave, New Delhi, where child victim alongwith her parents met them. PW7 deposed that IO SI Krishan Kumar made inquires from the child victim and recorded her statement. PW7 deposed that IO SI Krishan Kumar prepared rukka and handed over the same to him for getting the case registered. PW7 deposed that he got the case registered and handed over the copy of FIR and original rukka to IO. PW7 deposed that thereafter, they made search for the accused but he could not be traced.
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20.In his cross examination by accused, PW7 deposed that in his presence, IO had not recorded statement of any witness except the complainant/child victim. PW7 deposed that no other document except rukka was prepared in his presence. PW7 denied that he never went to the spot alongwith SI Krishan. PW7 further denied that all the proceedings were done at police station. PW7 denied that he is deposing falsely at the instance of IO.
21.PW8 HC Kailash Chander deposed that on 13.04.2013 at about 8.00 p.m. he along with Ct.Vijay were on petrolling duty in the area of Beat no.7, Mahavir Enclave Part 2&3 and and at that time, SI Krishan Kumar reached there and asked them to accompany him to Gali no. 24, Mahavir Enclave. PW 8 deposed that thereafter, they along with SI Krishan went to the house of child victim. PW8 deposed that from the house of child victim, they along with child victim and father of child victim went towards the house of accused and when they reached near the house of accused Sanjay, the child victim pointed out towards the accused who was standing in SC NO: 57/2/13 13/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar the street in front of the house, stating that he is the same boy who had misbehaved with her. PW8 deposed that thereafter, he with the help of Ct. Vijay apprehended accused Sanjay and handed over to SI Krishan.
22.In his cross examination by accused, PW8 deposed that he apprehended accused Sanjay first. PW8 deposed that at the time of arrest of accused Sanjay his parents were also present. PW8 denied that he along with SI Krishan did not visit the house of accused or that the accused surrendered in the presence of member of RWA of the colony in the police station. PW8 further denied that he is deposing falsely at the instance of IO.
23.PW9 Retired SI Krishan Kumar is the investigating officer of the present case. PW9 further reiterated the facts as mentioned in the charge sheet and as deposed to by PW7 Ct.Mahesh and PW8 HC Krishan Chander. PW 9 deposed that he took the accused to the DDU hospital for his medical examination. PW9 deposed that he collected the documents pertaining to the age of child SC NO: 57/2/13 14/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar victim.
24.In his cross examination by accused, PW9 deposed that on the spot child victim, her father, mother, brother and one neighbor were present. PW9 denied that child victim had given her complaint being dictated by her father. PW9 denied that the complaint Ex. PW1/A is not signed by the child victim. PW9 proved the admit card of 9th class of child victim issued from Central Board of Secondary Education duly attested by the principal of her school vide Ex.PW9/DA. PW9 denied that he did not make any inquiry from the neighbor Sh. Avdesh Sharma of child victim and statement of the neighbor of the child victim was recorded on his own. PW9 denied that no complaint was given to him by the child victim. PW9 further deposed that the house of child victim was having regular water supply and water tanker also used to come in the locality which was used to be parked on the main road. PW9 denied that quarrel had taken place on the issue of filling of water from the water tanker and no incident had taken place. PW9 denied that he has not verified any document regarding the age of child victim. PW9 deposed that Ct.Rajesh accompanied him to DDU SC NO: 57/2/13 15/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar hospital in the TSR for the medical examination of accused.
25.After closure of prosecution evidence, entire incriminating evidence was put to accused u/s 313 Cr.P.C. Accused stated that he has been falsely implicated. Accused stated that child victim deposed falsely against him at the instance of her father and brother. Accused stated that the school leaving certificate of child victim is false and fabricated as it bears wrong names of parents. Accused stated that the present case was registered against him on the false averments due to instigation of father and brother of child victim. Accused stated that he is innocent and wants to lead evidence in his defence.
26.In his defence, accused examined three witnesses i.e.DW1 Mahmood Alam, DW2 Sh.Shiv Shanker Singh and DW3 Sh.Krishna Singh.
27.DW1 Mahmood Alam deposed that he is the neighbour of accused and know nothing about this case.
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28.DW2 Sh.Shiv Shanker Singh is the Pradhan of Rohtas Nagar. DW2 deposed that on 09.04.2013 at around 2.00
-2.30 p.m., a water tanker had reached in gali no.24, Mahavir Enclave, Part II, situated 4050 metres away from his house. DW2 deposed that half part of gali no.24 falls in the area of Rohtash Nagar and other part of gali no.24 falls in the area of Mahavir Enclave, Part II. DW2 deposed that at that time, he was standing at the corner of the street and on hearing noise, he went to the place where the water tanker was parked. DW2 deposed that on reaching there, he saw that an altercation was going on between accused and son of Jai Prakash and Dhiraj Sharma, son of Avdesh Sharma over filling up of water. DW2 deposed that he intervened and separated them and returned to his house.
29.In his cross examination by Ld.Addl.PP for state, DW2 denied that on 09.04.2013, the water tanker had not reached in gali no.24 or that no quarrel had taken place between accused and son of Jai Prakash over filling of water. DW2 deposed that he do not know whether accused had misbehaved with child victim on 09.04.2013.
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30.DW3 Sh. Krishna Singh is the Secretary of RWA, Rohtash Nagar, Delhi. DW3 deposed that on 09.04.2013 at about 2.00--2.30 p.m., a water tanker had reached near his house in gali no.24, Mahavir Enclave, PartII. DW3 deposed that child victim was filling water from the tanker and some quarrel had taken place between child victim and the accused on the ground of taking water. DW3 deposed that he tried to make understand both the parties. DW3 deposed that in the meantime Pardhan, Shiv Shanker Singh also reached at the spot and matter was amicably settled.
31.Since DW3 was not disclosing true facts of the case, he was allowed to be cross examined by defence counsel.
32.In his cross examination by counsel for accused, DW3 admitted that the child victim had called his brother at the spot. DW3 voluntarily deposed that when her brother came at spot, he left the spot. DW3 admitted that when he left the spot, brother of child victim and the accused were having an altercation. DW3 deposed that one boy was also with the brother of child victim.
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33.In his cross examination by ld.Addl.PP for state, DW3 admitted that quarrel on account of water issue usually take place in their locality. DW3 admitted that he can not tell the date and month of the quarrel which took place over the water issue in the year 2013. DW3 deposed that he knows accused as he is residing in his neighbourhood. DW3 deposed that he has visiting terms with accused and his family. DW3 denied that no altercation had taken place on the issue of water on 09.04.2013 in his presence. DW3 deposed that he left for the office of Mr.Desraj at 2.30 p.m. and returned at around 7.008.00 p.m.on 09.04.2013. DW3 admitted that he do not know what happened in his absence on 09.04.2013 at about 4.00p.m. After the closure of defence evidence, matter was posted for final arguments.
34.I have heard Sh.H.K.Panda, ld.counsel for accused and Sh.Aditya Kumar, Ld.Addl.PP for state. I have also carefully perused the record.
35.In the present case, accused has been charged under SC NO: 57/2/13 19/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar section 12 of POCSO Act for sexually harassing the child victim aged 15 years.
36.The offence u/s 12 of the POCSO Act has been defined in Section 11 of POCSO Act relevant part of which reads as under: "11. Sexual harassment. A person is said to commit sexual harassment upon a child when such person with sexual intent,
(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) xxxxxx
(iii) xxxxxx
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) xxxxxx
(vi) xxxxxx
37.Now, let us see whether in the present case, ingredients of sexual harassment as provided in Section 11 of POCSO Act have been proved by the prosecution or not? The material witness of the prosecution is the child SC NO: 57/2/13 20/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar victim aged 15 years, who has been examined as PW1. PW1 has deposed on oath that accused used to follow her whenever she used to go to her school and also used to make comments like "he loves her and wants to marry her". PW1 Child victim further deposed that her father made a complaint regarding harassment to the father of accused but accused continued with his misbehavior. PW1 Child victim further deposed that on 09.04.2013 at about 4.00 p.m., accused came in front of her house and he was shouting loudly and using abusive language and was also saying that child victim is his girl friend and he is having setting with her. Thereafter, accused left for his house.
38.PW1 Child victim proved her complaint given to the police Ex.PW1/A and her statement made before the Ld.Magistrate Ex.PW1/C wherein aforementioned allegations were also made.
39.In her cross examination, PW1 Child victim denied that on 09.04.2013, a quarrel had taken place with regard to taking of water from the water tanker between her and accused in the presence of Mukesh and Sumitra and no SC NO: 57/2/13 21/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar such incident had taken place. PW1 Child victim also denied that on one occasion, father of accused had beaten up her brother and accused due to which their relations got strained.
40.The evidence of child victim that her father had made a complaint to the father of accused has been corroborated by the father of child victim i.e. PW3, who has deposed that four months prior to the incident, he had met the elder brother of accused at his house and had made a complaint against accused that he used to harass and misbehave with the child victim.
41.PW3 further corroborated that on 09.04.2013, he received a call from his wife to the effect that accused is abusing his daughter while standing in front of their house. In the cross examination, PW3 was confronted with his statement under section 161 Cr.P.C. Ex.PW3/DA where the fact of complaint made to the elder brother of accused was not recorded. PW3 denied that complaint was given by child victim to the police after consulting with him. PW3 also denied that on the date of incident, a quarrel had taken place between his SC NO: 57/2/13 22/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar family and accused over water at water tanker and accused has been falsely implicated on the dispute of water.
42.The prosecution had also cited one witness i.e. PW4 Avdesh Sharma, who claimed to have seen the incident. However, PW4 has only deposed to the fact that on the date of incident, he had received a telephonic call at around 2.30 p.m.from his son that accused was quarreling with him over the issue of water and he denied of having seen accused abusing and misbehaving with the child victim.
43.PW2 ASI Ramesh Kumar has proved that on 09.04.2013 after receiving a call at 5.30 p.m.regarding misbehaviour by one boy with a girl, he reduced the same into writing vide DD No. 32A Ex.PW2/A.
44.It had also come in the evidence of PW1, PW8 and PW9 that accused could not be apprehended on 09.04.2013 and was arrested on 13.04.2013. The conduct of accused in running away on 09.04.2013 is also a relevant fact to show that he had run away to evade apprehension. No SC NO: 57/2/13 23/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar explanation has come from the accused as to why he had run away on 09.04.2013 which is an incriminating circumstance against the accused.
45.In the light of evidence, which has come on record i.e.evidence of PW1 Child victim, her father i.e. PW3, prosecution had discharged its onus by establishing on record that accused was misbehaving with the child victim prior to the incident for which even a complaint was made by father of child victim to his parents and even on the date of incident i.e. 09.04.2013, accused had harassed the child victim by abusing her and by telling her that she is his girl friend.
46.In the light of evidence which has been led on record by prosecution and there being presumption in favour of prosecution under section 29 and 30 of the POCSO Act that accused had committed offence with sexual intent, onus shifted upon the accused to prove to the contrary.
47.The defence of accused was that dispute had taken place over filling up of water at the water tanker between child victim and accused and previously on one occasion, SC NO: 57/2/13 24/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar father of accused had slapped the accused and brother of child victim due to which relations between family of child victim and accused became strained and he was falsely implicated. It was for the accused to have proved his defence in the present case to rebut the presumption under section 29 and 30 of the POCSO Act.
48.As per the initial suggestion given to PW1 child victim in her cross examination, accused suggested to the child victim that dispute over filling up of water had taken place in presence of Mukesh and Sumitra. Therefore, at the initial stage, accused had disclosed that two witnesses namely Mukesh and Sumitra had witnessed the quarrel over filling up of water between child victim and accused. However, said witnesses namely Mukesh and Sumitra have not been examined by the accused in his defence to lend credence to his defence.
49.The nonexamination of material witnesses i.e. Mukesh and Sumitra despite being available, makes this court raise an adverse inference against accused under section 114 (g) of the Indian Evidence Act, 1872 that had these witnesses been examined by the accused, their SC NO: 57/2/13 25/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar testimony would not have been favourable to him. The nonexamination of material witnesses makes the defence of accused unreliable and untrustworthy.
50.Further, the accused has examined two material witnesses in this case to prove that dispute had taken place between child victim and accused over the issue of water at water tanker.
51.Accused in his defence examined DW2 Sh.Shiv Shanker Singh. DW2 has only deposed to the fact that on 09.04.2013 at around 2.00 -2.30 p.m. he had witnessed a quarrel between accused and son of PW4 and brother of child victim over filling up of water. DW2 had nowhere deposed that he had seen any kind of fight between child victim and accused over the issue of water and he also expressed his ignorance in the cross examination whether accused had misbehaved with the child victim on 09.04.2013. Therefore, evidence of DW2 nowhere proves the defence of accused that a quarrel had taken place between accused and child victim over the issue of filling up of water on 09.04.2013.
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52.Another witness examined by accused in support of his defence was DW3 Sh.Krishna Singh. DW3 deposed on oath that on 09.04.2013 at about 2.00 -2.30 p.m. when the child victim was filling water from the water tanker, a quarrel had taken place between the child victim and accused and in the meanwhile, Sh.Shiv Shanker Singh i.e. DW2 had also reached there and the matter was amicably got settled. The evidence of DW3 Sh.Krishna Singh cannot be believed as same is contradictory to what the other defence witness i.e. DW2 Sh.Shiv Shanker Singh had deposed. DW2 Sh.Shiv Shanker Singh has deposed regarding there being a quarrel between son of PW4 Avdesh Kumar and accused and brother of child victim over the issue of water and he has nowhere deposed regarding the presence of child victim at the spot in dispute. Therefore, deposition made by DW3 Sh.Krishna Singh that dispute had taken place between child victim and accused and matter was got settled with the intervention of DW2 Sh.Shiv Shanker Singh, is not trustworthy and is required to be disbelieved.
53.Further, in this case, as per testimony of child victim, the alleged sexual harassment had taken place on 09.04.2013 SC NO: 57/2/13 27/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar at about 4.00 p.m. and it has come in the cross examination of DW3 Sh.Krishan Singh that he had left the spot at 2.30 p.m.and he does not know what had happened in his absence on 09.04.2013 at about 4.00 p.m. Since DW3 Sh.Krishna Singh was not present at the spot when the incident took place at around 4.00 p.m., therefore, his evidence is of no help in proving the defence of accused. Therefore, both the witnesses examined by accused in his defence have not been able to rebut the presumption that accused was falsely implicated on account of water dispute between him and child victim. On the contrary, the contradictory depositions of DW2 Sh.Shiv Shanker Singh and DW3 Sh.Krishna Singh make their testimonies unreliable and untrustworthy.
54.Accused also did not examine his father to prove his second defence that accused and brother of child victim were slapped by his father due to which family relations between them had become strained and he was falsely implicated.
55.Therefore, in the light of above discussion, accused has SC NO: 57/2/13 28/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar miserably failed to prove his defence that he was falsely implicated by child victim, at the instance of her father and brother.
56.Now, I shall deal with contentions of defence counsel raised during final arguments in support of his case that accused deserves to be acquitted.
57.It was contended by the counsel for accused during the course of final arguments that in the present case, there is a dispute regarding date of birth of child victim which do not bring the present case under the POCSO Act as child victim is more than 18 years of age. It was also submitted that various improvements have been made by father of child victim over the statement given to the police like complaining against accused to his brother, which makes the testimony of PW3 Father of child victim to be an after thought. Lastly, it was submitted that child victim has deposed falsely that she was having water supply in her house whereas it has been proved on record that water tanker used to come in the street. Accordingly, it was prayed that accused be acquitted.
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58.The first contention of the counsel for accused that date of birth of child victim has not been proved, is not acceptable as although in the document Ex.PW9/DA issued by Central Board of Secondary Education, date of birth of child victim has been shown as 03.03.1998 and even child victim has deposed this to be her correct date of birth but documents produced on record by the prosecution i.e. Admission and Withdrawal Register Ex.PW6/A, transfer certificate Ex.PW6/C and Application Form Ex.PW6/B, all prove that date of birth of child victim as 09.08.1999. The document relied upon by accused was the admit card issued by Central Board of Secondary Education Ex.PW9/DA where the date of birth is mentioned as 03.03.1998.
59.In the opinion of this court, it is quite possible that a mistake was committed by the CBSE in issuing the admit card by mentioning date of birth of child victim as 03.03.1998 as admit card shows that child victim was studying in Government School in Vikaspuri and Application Form of the said Government School at Vikaspuri, New Delhi Ex.PW6/B shows that child victim had mentioned her date of birth as 09.08.1999 and in all SC NO: 57/2/13 30/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar the previous documents i.e.Transfer Certificate Ex.PW6/C and Admission and Withdrawal Register of the previous school Ex.PW6/A, date of birth of child victim was shown as 09.08.1999. Therefore, the date of birth of child victim, which has remained consistent till the stage of taking admission in the Government School in Vikaspuri, New Delhi is 09.08.1999 and it is quite possible that date of birth as 03.03.1998 as mentioned in Ex.PW9/DA was mentioned incorrectly in the said certificate.
60.Be that as it may, if either of the date of birth is taken to be correct then also child victim is less than 18 years of age on the date of incident. Hence, the offence in question is squarely covered by POCSO Act. This plea of counsel for accused is accordingly rejected.
61.The second contention of the defence counsel that father of child victim had made improvement by deposing in the court that he had earlier made a complaint to the brother of child victim regarding misbehaviour of accused, is not acceptable as child victim since the start of proceedings i.e. police SC NO: 57/2/13 31/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar complaint and also before the Ld.Magistrate vide Ex.PW1/A and Ex.PW1/C has consistently alleged that despite giving complaint to the parents of accused, he continued with his misbehaviour. Therefore, deposition made by father although for the first time before this court cannot be termed as an after thought as allegations regarding making of complaint to the family of accused are already present in the complaint Ex.PW1/A and statement under section 164 Cr.P.C.Ex.PW1/C. This contention is accordingly rejected.
62.Lastly, it was contended by the defence counsel that child victim had deposed falsely that there was water supply at her house and dispute had not taken place over the filling up of water at water tanker, is required to be rejected as investigating officer of this case has deposed on oath that water supply was available at the child victim's house. Even otherwise, the defence witnesses i.e. DW2 Sh.Shiv Shanker Singh and DW3 Sh.Krishna Singh have nowhere proved that house of child victim was not having a regular supply of water. Even assuming that water supply was not available at SC NO: 57/2/13 32/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar the house of child victim, then also it is not proved by defence that dispute had taken place between accused and child victim over the filling up of water at water tanker, as discussed herein above in para 52. Accordingly, this contention is also rejected.
63.Lastly, it was contended by the defence counsel that in the present case PW4 Avdesh Sharma, the independent witness has not supported the prosecution case that he had seen the accused misbehaving with the child victim on the date of incident which makes the entire prosecution case unreliable.
64.Although it is true that PW4 Avdesh Sharma has not supported the prosecution case that he had seen the accused misbehaving with the child victim but that itself is no ground to disbelieve the prosecution case in the light of fact that so claimed eye witnesses i.e. Mukesh and Sumitra have not been examined in this case by the accused. Even if evidence of PW4 Avdesh Sharma is discarded then also prosecution case is duly proved in the light of evidence of PW1 Child victim, PW3 Father of child victim, subsequent conduct of accused in running SC NO: 57/2/13 33/34 SC No. 57/2/13 FIR No. 189/13 PS.Dabri State VS.Sanjay Samal @ Sagar away after the incident and having regard to the fact that defence of accused has not been duly proved. Therefore, nonsupporting of prosecution case by witness PW4 Avdesh Sharma does not affect the prosecution case.
65.In the light of above discussion, it is proved on record that accused was harassing the child victim by stalking her and by passing obscene comments that he loves her and wants to marry her and by using abusive language which falls within the definition of "Sexual Harassment"
under section 11 (i) and (iv) of POCSO Act. Accordingly, accused is convicted for the offence under section 12 of POCSO Act.
Announced in the open court (Vikas Dhull) Dated: 29.01.2015 ASJ01/Dwarka Courts N.Delhi SC NO: 57/2/13 34/34