Delhi District Court
Sc No: 57743/16 State vs . Sanju on 8 February, 2017
SC No: 57743/16 State Vs. Sanju
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-01, NORTH
ROHINI, NEW DELHI
In the matter of:-
S. C. No. 57743/16
FIR No. 111/13
Police Station Bhalswa Dairy
Under Section 354/354A/451IPC
& 10 POCSO
State
Versus
Sanju
S/o Sh. Raj Pal,
R/o House No. 608,
Mukundpur, Delhi. ......Accused
Date of institution 18.07.2013
Judgment reserved on 20.01.2017
Judgment Pronounced on 08.02.2017
Decision Acquitted
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SC No: 57743/16 State Vs. Sanju
JUDGMENT
1. Accused is facing trial on allegations of attempting to commit aggravated sexual assault on victim D, a girl aged about 9 years and assaulting her with intent to outrage her modesty.
2. FIR in question was registered on the complaint lodged by complainant (mother of victim), wherein she alleged that on 14.04.2013 at about 1700 Hours she came back from Hospital, her younger daughter D (victim) aged about 9 years told her that their neighbor accused Sanju called victim on the terrace of his house and he touched his urinating part on the mouth of victim and then out of fear victim came back to her house.
3. Accused was arrested and charge-sheeted. Charge for offence punishable U/s 354 IPC & under Section 18 read with 10 POCSO (Protection of Children from Sexual Offences) Act, 2012 was framed against accused to which he pleaded not guilty and claimed trial.
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4. Prosecution examined 12 witnesses.
PW Name of witness Nature of witness Documents proved 1 Mubarak School Record Date of birth of victim as 13.01.2004 Hussain as per School Record as Ex PW1/A-
D 2 Mother of victim Complainant Supported prosecution case as per her complaint as Ex PW2/A, arrest of accused vide memo Ex PW2/B&C. 3 Victim Victim Supported prosecution case, her statement recorded U/s 164 Cr.P.C as Ex PW3/A 4 Brother of victim Brother Supported prosecution case 5 Ct Satish Police Got registered FIR 6 Dr Vaihav Doctor Medical examination of accused vide MLC as Ex PW6/A 7 Ct Mohit DD Writer DD No. 82B as Ex PW7/A in respect of commission of rape 8 ASI Narender Duty Officer Proved FIR & his endorsement on rukka as Ex. PW8/A & B, certificate U/s 65 B IE Act as Ex PW8/C. 9 Ct Sanjay Police Arrest of accused 10 Sh. Manish Ld MM Recorded statement of victim u/s 164 Khurana Cr.P.C as Ex PW3/A 11 SI Kundan Lal Police Recorded statement of complainant prepared rukka as Ex PW11/A & site plan as Ex PW11/B 12 SI Sangeeta Investigating Arrest & personal search of accused, Officer got recorded statement of victim u/s 164 Cr.P.C and obtained age proof of victim.
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5. In his statement recorded u/s 313 Cr.P.C. accused stated that victim's family is his neighbor and they used to quarrel with them over one issue or other. Brother of victim falsely implicated him in this case as there was a quarrel between him and victim's brother.
6. Ld. Counsel for accused argued that prosecution has miserably failed to prove its case. It is submitted that the all statements of victim are inconsistent with each other which makes prosecution story doubtful. It is further argued that despite the fact that victim claims that one lady had seen her with accused but that lady has not been cited as a witness by the prosecution. It is argued that prosecution has not been able to prove its case beyond reasonable doubt hence accused is entitled to be acquitted.
7. Per contra, it has been submitted on behalf of the State that testimony of victim is trustworthy and reliable. It is Judgment 4 of 13 SC No: 57743/16 State Vs. Sanju submitted that mother and brother of victim have duly supported the prosecution case and in facts of the case, accused is liable to be convicted.
8. I have heard the Ld. Amicus Curiae as well as the Ld. Addl. PP and perused the record.
9. Age of victim: Prosecution has proved date of birth of the victim as 13.01.2004 as per her School record as Ex. PW1/A to D. That goes to show that the victim was about 9 years old at the time of incident (14.04.2013). Age of victim is not disputed by the defense in any manner. Thus, it is concluded that on date of incident victim was a "child" within the meaning given under POCSO Act.
10. Testimony of victim & Other witnesses: Defense has submitted that victim's statement is inconsistent in all her versions which makes her testimony unreliable and not worthy of any Judgment 5 of 13 SC No: 57743/16 State Vs. Sanju credit. In order to appreciate the argument, it would be appropriate to find out what victim has stated in her statements. Initial statement of victim was recorded by IO u/s 161 Cr.P.C on date of incident itself. It's English Translation reads as under:
"I am residing with my parents at aforesaid address and I am studying in Class IIIrd. Today my mother went to Hospital to see my father. I was playing at home. In the afternoon Sanju, who resides in the adjoining house called me from his terrace and I went to terrace of house of Sanju. There Sanju talked dirty and then took out his urinating part and touched it on my mouth. Out of fear I ran from there and when my mother came in the evening I narrated entire incident to her. My mother called police. I showed you the terrace where accused committed wrong act with me. ..."
11. Thereafter, statement of victim Ex PW3/A was recorded by Ld MM u/s 164 Cr.P.C and it's English Translation reads as under:
"On 14.04.2013, Sanju Bhaiya called me on pretext of picking clothes. Initially I didn't go but when he called 3-4 times then I went to Sanju's house through stairs. When I went there he stopped me on stairs and made me to sit there. Sanju took out his urinating part and told me to open mouth otherwise he would beat me. Then out of fear I opened my mouth. When I was crying an aunty who resides in neighborhood came Judgment 6 of 13 SC No: 57743/16 State Vs. Sanju there and Sanju hid his urinating part. He was not able to put his urinating part in my mouth. He threatened to kill that Aunty. Then I came home. Aunty narrated entire incident to my elder brother and my brother called police. Besides this nothing happened with me. "
12. Testimony of victim reads as under:
"I was playing outside my house and Sanju called me on the pretext that, his cloth had fallen on his terrace. I went to the terrace. He caught hold of me and asked me to suck his penis (peshab karne wala) after taking out from his underwear (Kachha). I started weeping and then he released me. He threatened me saying that, if I disclosed this to anyone, he would slap me. He touched his penis to my mouth, but, because I started weeping, he left me. Thereafter, I narrated this to my mother. My brother had made a call to the police. Police came at my house and recorded my statement......" ( Examination-in-chief) My mother had gone to look after my father at hospital on that day. I narrated the incident to my mother at about 5pm. My mother did not talk to anyone regarding this incident. Vol. My brother had called the police. I do not know whether a quarrel had taken place between my brother with Sanju. On the day of incident, my both the brothers were present at the house. Sanju had committed this offence on the staircase of his house. Nobody else had seen the incident. Sanju had not did any such act in the past. On that day, I had not gone to school, as it was holiday. When Sanju had called me, I was playing outside my house.
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When I had come to give my statement before the Judge, I was accompanied with my mother and elder brother. Both have also accompanied me today also. It is wrong to suggest that I am deposing falsely at their instance. " (Cross-examination)
13. Statement of victim recorded u/s. 164 Cr. P.C as Ex. PW3/A was recorded just a day after the incident and in this statement, the victim mentioned that accused after taking out his urinating part told her to open her mouth otherwise, he would beat her and then out of fear, victim opened her mouth and when she was crying, a lady who was residing nearby came and on seeing her, accused concealed his urinating part. Victim categorically stated that accused was not able to put his urinating part in her mouth.
14. Victim in her statement Ex. PW3/A categorically mentioned about the presence of neighbor at the spot and even stated that the accused threatened that lady to kill her. Prosecution did not examine that lady. Investigating Officer during her cross-
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examination testified that she tried to find out that lady from the locality but no clue was found as the victim was unable to identify that lady. On scanning the statement Ex. PW3/A, it further comes to light that the victim stated that the said lady narrated the entire incident to her elder brother and thereafter, the elder brother called the police. Prosecution though examined the elder brother of victim as PW-4 but the said witness could not depose about the identity of that lady. Neither the Investigating Agency made any efforts to find out about the identity of that lady from the elder brother of the victim. Once it has come in the statement of victim that a lady who was residing in their neighborhood saw her when victim was with the accused then the said lady becomes a crucial witness to substantiate the claim of victim specially when the victim claims that the said lady met her brother and narrated entire incident to her brother.
15. Furthermore, victim claims that women was residing in the locality. Had the incident was witnessed by a passerby then Judgment 9 of 13 SC No: 57743/16 State Vs. Sanju its non-availability is understandable but victim stated that lady was residing in their neighborhood and in such a scenario non- examination of said witness creates doubt over prosecution story.
16. In his testimony, PW-4 (brother of victim) deposed that victim came to house and was weeping. Accused was also following her. At that time, he inquired from her sister as to why she was weeping then accused intervened and stated that he slapped her. As per PW-4, he did not take the incident seriously and went to the market and subsequently, when he returned to the house, his younger brother told him that accused has sexually assaulted the victim on terrace. Thereafter, he made a call to the police at 100 number.
17. PW-2 (mother of victim) is another material witness. PW-2 claims that when she returned from hospital, victim narrated incident to her and stated that accused forcefully inserted his penis into her mouth and also threatened her not to disclose incident to Judgment 10 of 13 SC No: 57743/16 State Vs. Sanju anyone. PW-2 further deposed that when her both sons returned to the house from their job, she narrated the incident to them and then they made a call to the police at 100 number. Police came to her house and recorded her statement as Ex. PW2/A.
18. Deposition of PW-2 is in complete contradiction with the deposition of victim as well as her son (PW-4). Victim deposed that her both brothers were at home at the time of incident and PW4 also admits so. Testimony of PW-2 further comes under cloud as she in her deposition exaggerated the version of victim by alleging that the accused forcefully inserted his penis into her mouth whereas victim in none of her statements alleged so.
19. PW4 (brother of victim) in his deposition claims to have met victim while she was weeping and at that time accused also met him. As per PW4, accused told him that he had slapped victim and thereafter, PW4 went to market. In none of statements victim mentioned about meeting her brother and accused telling Judgment 11 of 13 SC No: 57743/16 State Vs. Sanju him that accused had slapped her. Rather victim testified that she first narrated the incident to her mother.
20. After going through the evidence recorded, the following contradictions can be noticed in the testimony of witnesses:
i) In her statement Ex. PW3/A recorded u/s. 164 Cr. P.C, victim did not allege that accused touched penis to her mouth.
ii) There is vide variations in statement of victim recorded U/s 161 Cr.P.C, in her statement recorded U/s 164 Cr.P.C and her evidence recorded in the court as to whom she initially narrated the incident.
iii) Victim mentions about presence of a neighbor at the time of incident but that lady who as per victim saw her with accused has not been cited and examined.
iv) False deposition of the mother of victim in respect of the fact that her both sons were not present in the house on the date & time of alleged incident.
21. There is no dispute that the conviction can be based upon the sole testimony of a child witness in the cases of sexual assault but the necessary pre−condition thereof is that the evidence of child victim should not be result of tutoring. In this case, Judgment 12 of 13 SC No: 57743/16 State Vs. Sanju circumstances clearly point out that the evidence of child victim is not free from blemish and as such, it would be highly unsafe to convict the accused merely on the basis of her evidence.
22. Accordingly, it is held that prosecution is unable to prove its case against accused beyond reasonable doubt. Accordingly, accused stands acquitted of the charged offence. He is directed to furnish a personal bond in sum of Rs 10,000/- under provisions of Section 437-A Cr.P.C with surety in the like amount. File be consigned to record room.
(GAUTAM MANAN)
ASJ-01:NORTH:ROHINI:DELHI
08.02.2017
Judgment 13 of 13