Delhi District Court
State vs Mehfooz ( Sc ) on 1 March, 2024
DLNE010003362022
IN THE COURT OF MS. RICHA PARIHAR
ADDITIONAL SESSIONS JUDGE (SC-POCSO)-01
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
Session Case No. : 27/2022
State Vs : Mehfooz
FIR No. : 586/2021
Under /Section : 354/376AB IPC & 6 of POCSO Act
Police Station : Dayal Pur
CNR No. : DLNE01 000336 2022
Date of Institution : 07.02.2022
Date of Judgment reserved on : 01.03.2024
Date of Judgment : 01.03.2024
Brief details of the case
A) Offence complained of : 354/376AB IPC &
or proved 6 of POCSO Act
B) Name of the accused : Mehfooz aged about 67 years
S/o Mehboob Khan
R/o H.No.E-194, Gali no.6,
Chand Bagh, Karawal Nagar,
North East, Delhi-110094.
C) Plea of the accused : Pleaded not guilty
D) Final order : Acquittal
FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 1 of 17
E) Date of Order : 01.03.2024
JUDGMENT
1. On the accusation of outraging the modesty, committing rape/aggravated penetrative sexual assault upon minor victim 'A' (identity withheld and hereinafter referred to as 'victim'), aged about 10 years 9 months, accused Mehfooz aged about 67 years (herein after referred to as 'accused') was sent up for trial for commission of offences under sections 354/376AB of Indian Penal Code (IPC), 1860 and section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
2. Briefly stated the case of prosecution is that on 06.12.2021, a PCR call vide DD no.123A was received that 'caller ki beti age 12 years jo ki ghar akeli thi ek 40-45 saal ke admi ne ghar m ghuskar galat harkat ki thi, rape karne ki koshish ki hai ladki thik se bata nahi pa rahi hai'. Thereafter, at around 11:00 PM, complainant along with her daughter and husband came to the police station and Smt. "S" mother of victim/complainant registered a complaint at PS Dayal Pur that on 06.12.2021 at about 4:30 PM, when she had gone to take vegetables with one of her daughter and her elder daughter "A" (victim) aged 10 years (complete name withheld to protect the identity of the victim) and son Danish aged 9 years remained at home. Complainant "S" alleged that when she returned home, then, her daughter "A" told FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 2 of 17 her that "महफफ ज uncle घर आए और पफछनन लगन तन रन मममम पपपप कहपह गए हह , मम नन बतपयप कक मममम पपपप घर पर नहमह हह कफर उसनन मन रम breast पर हपथ फनरप और गलत हरकत करनन कक कककशश कक।" On the basis of aforesaid complaint, FIR under Section 354 IPC and Section 10 of POCSO Act was registered in present case (FIR no.586/2021 dated 07.12.2021 PS Dayal Pur).
3. Statement of victim and her mother under Section 164 Cr.P.C were recorded where both of them did not support the allegations of sexual assault against accused. However, thereafter, statement under Section 161 Cr.P.C of victim and mother of victim was recorded in which they stated that both of them trembled in the Court and they could not say it right out of fear of shame and bad image in the society but they both assured that whatever they have told to doctor and the IO had happened on the day of incident. Then, on the basis of MLC of doctor and statement under Section 161 Cr.P.C, Section 376AB of IPC and Section 6 of POCSO Act were added in the case file.
4. Upon completion of investigation, IO filed present charge- sheet in the Court on 07.02.2022 against accused Mehfooz for offence under sections 354/376AB IPC & Section 6 r/w Section 5 of POCSO Act and cognizance of offence was taken on FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 3 of 17 19.02.2022.
Charge
5. On 22.03.2023, charge for offences under Sections 354/376AB IPC and Section 6 of POCSO Act was framed against accused Mehfooz, to which he pleaded 'not guilty' and claimed trial.
Admitted documents:
6. During admission/denial of documents vide statement u/s 294 Cr.P.C dated 20.10.2022, accused admitted the copy of FIR no.586/2021, u/s 354/376AB IPC & 6/10 POCSO Act registered at PS Shastri Park on 06.12.2021 as Ex.P-1; certificate u/s 65B of Indian Evidence Act for documents bearing FIR no.586/2021 dated 07.12.2021 as Ex.P-2; MLC report of accused bearing no.12115 and 12155 dated 08.12.2021 prepared by Dr.Virender at JPC Hospital as Ex.P-3; arrest memo dated 07.12.2021 at 10:30 PM prepared at the time of arrest of accused as Ex.P-4 and personal search memo dated 07.12.2021 prepared after personal search of accused as Ex.P-5. During further admission/denial of documents u/s 294 Cr.P.C, vide statement dated 20.11.2023, the accused admitted copy of DD entry no.0123A dated 06.12.2021 FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 4 of 17 as Ex.P6, copy of PCR form dated 06.12.2021 (colly) running into 5 pages as Ex.P7, emergency registration number of Victim A of JPC Hospital no.JPC 256, 500 as Ex.P-8; MLC of victim no.489 dated 07.12.2021, JPC Hospital, prepared by Dr. Nivya Mohan as Ex.P-9 and Birth Certificate of victim issued from EDMC no.126491 dated 02.04.2016 as Ex.P10.
Prosecution witnesses
7. Prosecution has examined a total of five witnesses to prove its case.
i) Victim "A" aged about 13 years as PW1
ii) Smt. "S", mother of victim as PW2
iii) Sh. "I" father of victim as PW3
(iv) IO W/SI Pooja as PW4
(v) IO SI Ujjwal as PW5
Material witnesses
Victim 'A'
8. PW-1 is victim 'A' who is the star witness of this case. On 08.12.2021, statement of victim was recorded under Section 164 Cr.P.C which is reproduced as follows:
"Somwar 07.12.2021 shaam 04.30 baje main aur mera bhai ghar me TV dekh rahe the. Mummy bazaar FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 5 of 17 gai thi aur papa kaam par. Bhai ke pet mein dard hua to wah chchat par toilet karne gaya. 'Abba' ne gate khadkhadaya. 'Abba' hamari gali se teen gali chhod kar rehte hain. Hamara unke sath dua salam hai. Maine thoda sa gate khola, wah gusse mein bole mummy papa kahan hai. Maine bata diya. Phir chilla ke bole apne mummy papa ko mere paas bhej dena. Phir unhone gate par dhakka maara, mere kandhe par aur jangh par lag gai. Phir wah chale gae. Main rone lagi aur neeche jakar mummy ko call karke sab bata diya. Mujhe 'Abba' ka naam nahi pata hai, main unhe Abba kehkar bulati hun".
9. During her testimony in Court, PW1 victim has reiterated the facts as mentioned in her statement under Section 164 Cr.P.C. Examination-in-chief of PW1/victim recorded in Court is reproduced as follows :
"I do not know accused but my parents know him as there used to be monetary transactions between my parents and the accused. When I was in class 7 th, I do not remember the date, month or year. At about 4-5 PM accused had come to our house. He came to my house and banged the kundi (kundi bajaye). He was very angry at that time. When I opened the gate, accused asked in anger "tumhare mummy papa kaha hein?".
My brother was in toilet at that time and my mother had gone to the bazar (market) with my sister and my father had gone out for work. I informed him that my mother had gone to the market and my father was out for work. In anger accused told me that when my parents came, I should inform them that accused had come. In anger, accused pushed the door which hit me on my shoulder and thigh. I cried and called my mother FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 6 of 17 and informed her that abba had come. My mother came and called 100 number.
Thereafter, we went to the police station. Police made inquiry from me and I told what I have stated today to the police. Police also took me to the hospital for my medical examination. Police had also brought me to the court before a Ld. Judge for recording my statement.
At this stage, an envelope sealed with the seal of KJ has been opened. Same contains original statement of the victim recorded u/s 164 Cr.P.C. Same is Ex.PW1/A bearing my thumb impression at point "A".
At this stage, accused has been brought out of the one way visibility glass chamber and shown to the witness through audio video link. Witness has correctly identified the accused."
10. Thus, victim has not supported the allegations of outraging the modesty or commission of any wrong act or offence of penetrative sexual assault by accused upon her and has turned hostile. Thereafter, Ld. Addl. PP for State had cross-examined the victim with the permission of the Court as she was resiling from her previous statement. Same is being reproduced as follows:
"XXXXX by Sh. S.K.Dubey, Ld. Addl. PP for the State.
It may be that the accused came to my house on 06.12.2021. It is wrong to suggest that I had called my mother to inform her that accused touched my breast and tried to do wrong act (galat harkat). It is wrong to FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 7 of 17 suggest that I am deliberately not disclosing the true incident as I have been won over by the accused."
11. PW1/victim was not cross-examined by Ld. Counsel for accused, despite opportunity for same being granted.
PW2 Ms. "S" mother of victim
12. PW-2 is Smt. "S" mother of victim who has completely turned hostile and has not supported the allegations against accused and has also refused to identify accused during her testimony in Court. She has also refused that any incident as alleged has ever happened with her victim daughter. Examination-in-chief of PW2/mother of victim recorded in Court is reproduced as follows :
"I do not know any person by the name of Mehfooz. No incident has happened with my daughter ever. I do not know anything about the present case. Accused has been brought out of the one way visibility glass chamber and shown to the witness form 8 to 10 paces. Witness has failed to identify the accused.
13. Thereafter, Ld. Addl. PP for State had cross-examined the mother of victim with the permission of the Court as she was resiling from her previous statement. Same is being reproduced as follows:
FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 8 of 17 "XXX by Sh. S.K.Dubey, Ld. Addl. PP for State. It is correct that I had given a complaint in the police stationin2021. At this stage, a complaint Ex.PW2/1 is shown to the witness. Witness submits that she cannot read and write. Ex.PW2/1 has been read over to the witness. Witness denies that she had ever made any complaint against any Mehfooz regarding molestation of her daughter. Witness is unable to identify her thumb impression on Ex.lPW2/1 but identifies her mobile number written onEx.PW2/1. It is wrong to suggest that on 06.12.2021, at about 04:30 PM I had gone to the market with my daughter to purchase vegetables. It is wrong to suggest that at that time, my daughter A (victim) and son D were present alone in the house. It is wrong to suggest that on that day, I received a call at 5 PM from my daughter A who called me home. It is wrong to suggest that when I reached home, my daughter A informed me that accused Mehfooz had come and had touched her breast and tried to misbehave with her (galat harkat karne ki koshish ki). It is wrong to suggest that I called 112 number. It is wrong to suggest that my daughter was not telling anything clearly or that she was then counselled. It is wrong to suggest that my daughter was taken to the hospital. It is wrong to suggest that my statement was recorded by the IO. It is wrong to suggest that I am deliberately not identifying my complaint or my thumb impression onEx.PW2/1 at point A. It is wrong to suggest that I had accompanied my daughter to the hospital where I refused her internal medical examination. It is wrong to suggest that the site plan was prepared FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 9 of 17 at my instance. Witness has failed to identify her RTI on site plan. It is wrong to suggest that I am deliberately not identifying my RTI on the site plan mark PW2/P1 at point A. It is wrong to suggest that I had shown the house of the accused to the IO and at that time he was present at his house. It is wrong to suggest that the accused was arrested in my presence vide arrest memo already Ex.P4. Witness has not identified her thumb impression on Ex.P4. It is wrong to suggest that I am deliberately not identifying my RTI on arrest memo Ex.P-4 at point A. It is wrong to suggest that I am deliberately not identifying the accused. It is wrong to suggest that my statement u/s 164 Cr.P.C was never recorded by Ld. MM. It is wrong to suggest that I have stated in my statement to the police that I had not disclosed the true and complete facts to the Ld. Judge who recorded my statement u/s 164 Cr.P.C due to fear and getting defame. It is wrong to suggest that I had stated to the police that during my supplementary statement recorded on 13.12.2021 that my daughter A had told to me on 06.12.2021 that accused Mehfooz had pressed her breast and had also touched her private p;art. It is wrong to suggest that I had stated to the police in my statement that IO had asked the clothes of my daughter which she was wearing on the day of incident, however, I had not handed over the said clothes to the IO as neither me nor my daughter were remember the clothes. It is wrong to suggest that IO had recorded my supplementary statements. It is wrong to suggest that I have been won over by the accused and therefore deposing falsely. It is wrong to suggest that I am deposing in favour of accused at his instance as I want to FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 10 of 17 save him from the present case. It is wrong to suggest that I am deposing falsely regarding the identify of the accused. (confronted with the complaint Ex.PW2/1, mark PW2/P1 and Mark PW2/P2
14. PW-2/mother has not been cross-examined by ld. Defence counsel, however, opportunity for same was granted.
PW3 Sh. "I" father of victim
15. PW-3 is father of victim who has also deposed on the same lines as mother of victim. He has also not supported the allegations against accused and has refused to identify the accused during his testimony in Court. He has also refused that any incident as alleged has ever happened with his victim daughter. Examination-in-chief recorded in Court is reproduced as follows :
"I do not know any person by the name of Mehfooz. No incident has happened with my daughter ever. I do not know anything about the present case. Accused has been brought out of the one way visibility glass chamber and shown to the witness from 8 to 10 paces. Witness states that he has seen the accused sometimes in Masjid but he does not know his name nor has ever had any relationship with him."
16. Thereafter, Ld. Addl. PP for State sought permission to cross-examine the witness as he was resiling from his previous FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 11 of 17 statement which was heard and allowed and said cross-examination is reproduced as follows:
"XXX by Sh. S.K.Dubey, Ld. Addl. PP for State. It is wrong to suggest that on 06.12.2021 my wife Mrs. S called me and requested me to reach home soon. It is wrong to suggest that when I reached home, my wife informed me that accused Mehfooz had done chedchad with my daughter. It is wrong to suggest that my wife disclosed to me that accused Mehfooz had pressed the breast of my daughter and had also touched her private par. It is wrong to suggest that my wife had already called at 112 number and police came to my house. It is wrong to suggest that the counselling of my daughter was conducted and thereafter she was taken to JPC hospital where her medical examination was conducted. It is wrong to suggest that the statement of my daughter was got recorded before Ld. Judge during her statement as she was scared. It is wrong to suggest that IO recored his statement (confronted with potion A to A1 of statement mark PW3/P1 where it is so recorded). It is wrong to suggest that I am deposing falsely in favour of accused at his instance as I have been won over by the accused. It is wrong to suggest that I am not deposing the true facts before the court today as I want to save the accused from the present case. It is wrong to suggest that I am deposing falsely regarding the identity of the accused at his instance."
17. PW-3/father of victim has not been cross-examined by Ld. Defence counsel, however, opportunity for same was FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 12 of 17 granted.
18. PW4 is SI Pooja who is investigating officer of the case and PW5 is SI Ujjwal who is a police witness regarding the PCR call. On the submissions of Ld. Addl. PP for State, Ct. Prabha, Ct. Amit and Ct. Vineet were dropped from the list of witnesses being formal in nature.
Statement u/s 313 Cr.P.C.
19. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded on 01.03.2024 wherein all the incriminating material appearing on record was put to him. Accused denied the allegations as false and fabricated and did not choose to lead any evidence in his defence.
20. I have heard the final arguments as advanced by Ld. Additional Public Prosecutor for State Sh. S.K.Dubey and by Sh. Shailender Singh and Sh. Nasir Ali, Ld. Counsels for accused and perused the record.
Findings:
21. Section 29 of the POCSO Act, 2012 deals with the FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 13 of 17 statutory presumption to be raised against a person accused of one of the certain offences under the Act. It provides that where a person is prosecuted for violating any of the provisions under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved. However, an essential prerequisite is that the foundational facts of the Prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.
22. In order to discharge its initial burden, prosecution was required to prove two facts :
(i) that the victim was less than 18 years of age at the relevant time and thus 'child' within the meaning of Section 2(d) of the POCSO Act ; and
(ii) that the offence in question was committed by the accused.
Age of the Victim:
23. Accused has admitted under Section 294 Cr.P.C the birth certificate of victim as Ex.P-10. As per her birth certificate, date of birth of victim is 03.10.2011. Thus, on the date of alleged incident i.e. 06.12.2021, age of victim was about 10 years 9 FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 14 of 17 months. Thus victim was minor at the time of alleged offence and is a 'child' within the meaning of Sections 2 (d) & 5 (m) of the POCSO Act.
Whether accused has committed the offence for which he is charged
24. In present case entire prosecution case depends upon the testimony of PW-1/victim who is star witness of the prosecution. Father and mother of the victim are the hearsay witnesses. However, perusal of testimony of victim recorded in Court as PW1 shows that victim has not supported the case of prosecution against accused. Further, vide MLC of victim which is Ex.P9, victim had given history of sexual assault by accused. However, she has not supported the said allegations in her statement under Section 164 Cr.P.C. Further, during her testimony in Court also, victim has not levelled any allegations regarding commission of outraging the modesty or commission of penetrative sexual assault/fingering by accused. Victim has alleged that accused had visited her house and in anger, he had banged the door due to which hurt was caused to victim on her shoulder and thigh. However, as per MCL Ex.P9, there is no external injury seen on the person of victim. This version of victim is not believable in view of the fact that victim and her parents have not remained consistent in their statements recorded on the various occasions FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 15 of 17 and have changed their versions. During her MLC, mother of victim had refused for internal medical examination. Further, there is no medical or forensic/scientific evidence on record regarding commission of penetrative sexual assault upon victim. Father and mother of victim during their testimony in Court have also not supported the allegations against accused. They have denied the incident altogether as alleged in the complaint and they have also refused to identify the accused during their testimony in Court. Remaining witnesses examined by the prosecution are the formal witnesses of the investigation and have not seen the commission of the alleged incident. Even during the cross-examination by Ld. Addl. PP for State, victim and her parents have not supported the allegations against accused, rather during their deposition, they have categorically denied that any act of sexual assault ever happened with the victim.
25. There is no other direct, circumstantial or forensic evidence in present case to establish commission of alleged offence by accused. Victim /PW-1 has failed to support the prosecution case despite being subjected to detailed cross examined by the Ld. Addl. PP for the State. The bare perusal of the testimony of victim/PW-1 shows that she has completely exonerated accused Mehfooz from all the alleged acts, therefore, FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 16 of 17 the prosecution is not able to establish the foundational facts to attract the presumption under Section 29 of the POCSO Act. Hence, it is held that the prosecution is also not able to establish the commission of alleged offences by the accused Mehfooz and has also failed to prove its case against accused beyond reasonable doubt.
26. Thus, in the light of the above said discussion and findings, accused Mehfooz is hereby acquitted for the offences charged under Sections 354/376AB IPC, 1860 and Section 6 of POCSO Act, 2012 in present case.
File be consigned to record room after due compliance as per rules.
Digitally signed by
Announced in open Court RICHA RICHA PARIHAR
PARIHAR Date: 2024.03.01
on 01st March 2024 16:25:35 +0530
(RICHA PARIHAR)
ASJ (SC-POCSO)-01
North East District
Karkardooma Courts,
01.03.2024
It is certified that this Judgment contains 17 pages and each page has been signed by undersigned. RICHA Digitally signed by RICHA PARIHAR PARIHAR Date: 2024.03.01 16:25:45 +0530 (RICHA PARIHAR) ASJ (SC-POCSO)-01 North East District Karkardooma Courts/01.03.2024 FIR No.586/2021 PS Dayal Pur State vs. Mehfooz Page No. 17 of 17