Delhi District Court
State vs Mr.Kishore Kumar @ Raj Kishore Shah. -:: ... on 14 May, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
State
versus
Mr.Kishore Kumar @ Raj Kishore Shah
Son of Mr.Lakshmi Kant Shah,
Village Bhansiya Post Office,
P.T Dungriya, Police Station Mahal Gaon,
District Arrhiya (Bihar)
First Information Report Number : 798/2014.
Police Station Punjabi Bagh.
Under sections 376/366/363 of the Indian Penal Code
and under section 4 of the POCSO Act.
Date of filing of the charge sheet : 10.04.2015.
Arguments concluded on : 14.05.2018.
Date of judgment : 14.05.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with Legal Aid Counsel, Mr.R.R Jha.
PW- Prosecutrix.
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New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014.
Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code
and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 1 of 11 ::-
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JUDGMENT
1. Mr.Kishore Kumar @ Raj Kishore Shah, the accused, has been charge sheeted by Police Station Punjabi Bagh for the offences under sections 376/366/363 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Kishore Kumar @ Raj Kishore Shah has been prosecuted on the allegations that on 17.09.2014, he had kidnapped the prosecutrix, who is a minor girl who was born on 02.08.2003; he kidnapped the prosecutrix, with the intention to compel to marry against her will, to force her to do illicit intercourse; he kidnapped to the prosecutrix, a minor girl and took her to Bihar and he had committed penetrative sexual assault and rape upon the prosecutrix.
3. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her. Fictitious identity of Mr.Z is given to the father of the prosecutrix in order to protect the identity of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 10.04.2015.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 2 of 11 ::-
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5. After hearing arguments, charge for offences under sections 363/366 of the IPC, under section 4 of the POCSO Act and in the alternative under section 376 of the IPC was framed against accused Mr.Kishore Kumar @ Raj Kishore Shah vide order dated 25.05.2015 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as (03) witnesses i.e. Ms.Lata Kumari, Principal of the school who has proved the date of birth of the prosecutrix, as PW1; Mr.Z, father of the prosecutrix, as PW2; and the prosecutrix Ms.X, as PW3.
7. The evidence of the prosecutrix Ms.X as PW3 has been recorded in camera. Her father Mr.Z as PW2 has also been examined in camera.
8. The prosecutrix Ms.X as PW1 has seen accused Mr.Kishore Kumar @ Raj Kishore Shah through the screen and has identified the accused, as Kishore Kumar @ Raj Kishore Shah. She has deposed that "After my school hours, I along with my friend used to go to Keshavpuram Mandi for working in a different shop. I start talking to accused who used to work in a different vegetables shop. We became friends. I started meeting the accused at Keshavpuram Mandi. I also used to talk to accused on phone. On 17.09.2014 in the morning I left my house for going to my New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 3 of 11 ::-
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school. I had already asked accused to come near the gate of school after my school hours. At about 12.30 PM I came out from the school and found that accused Kishore Kumar was present out side the school. I alongwith accused went to Virat Nagar, Bihar by bus. I got married with accused in the house at Virat Nagar in front of God. He filled vermillion in the parting of my hairs. I started living with him as his wife. No document of marriage was prepared at the time. We had established physical relations after the marriage. After about two months I and accused came to Delhi and started living at Keshavpuram in a rented accommodation." She has further deposed that, "I pray that accused may be acquitted as he is innocent. Now I am living with accused happily as his wife and have two children from him."
9. As the prosecutrix Ms.X (PW3) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross-
examined her. She has been cross examined but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that I had gone with accused as he had induced me to accompany him for marriage. It is wrong to suggest that today I am deposing falsely regarding my date of birth as mentioned in my school record and also regarding the inducement of accused for taking me for marriage in order to save him. It is wrong to suggest that I am deposing falsely as I am living with accused as his wife and have two children from him. It is wrong to suggest that I am deposing falsely." New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 4 of 11 ::-
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10.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has admitted that "It is correct that I may have been above 18 years of age at the time of the alleged offence. It is correct that accused is innocent and has not committed any offence against me. It is correct that I do not have any grievance against the accused. It is correct that I am living happily with the accused who is my husband and I have two children from him.
Vol. I pray that the accused may be acquitted."
11.The father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused. In his cross examination on behalf of the accused, he has admitted that '"It is correct that I have not seen the prosecutrix going with the accused. It is correct that I have given consent for the marriage of the prosecurix with the accused."
12.The prosecution witnesses i.e. the prosecutrix Ms.X as PW3 and Mr.Z, father of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Kishore Kumar @ Raj Kishore Shah that he committed the offences of kidnapping, of forcing the prosecutrix to do illicit intercourse, of penetrative sexual assault and of raping the prosecutrix.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 5 of 11 ::-
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13.In the circumstances, as the prosecutrix Ms.X (PW3), who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused as well as father of the prosecutrix (PW2) has not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence as the prosecutrix was a minor and as she was pregnant at the time of her recovery, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW3) and father, Ms.Z (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
14. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Kishore Kumar @ Raj Kishore Shah is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW3) is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and her father (PW2) have also not deposed anything incriminating against the accused.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 6 of 11 ::-
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15.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
16.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW3) and her father (PW2), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 7 of 11 ::-
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18.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
19.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
20.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Mr.Kishore Kumar @ Raj Kishore Shah. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 8 of 11 ::-
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21.Consequently, no inference can be drawn that the accused Mr. Kishore Kumar @ Raj Kishore Shah is guilty of the charged offences under sections 363/366 of the IPC and under section 4 of the POCSO Act and in the alternate under section 376 of the IPC.
22.There is no material on record to show that on 17.09.2014, the accused had kidnapped the prosecutrix, who is a minor girl who was born on 02.08.2003; he kidnapped the prosecutrix, with the intention to compel to marry against her will, to force her to do illicit intercourse; accused kidnapped to the prosecutrix and took her to Bihar and he had committed penetrative sexual assault and rape upon the prosecutrix.
23.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Kishore Kumar @ Raj Kishore Shah for the offences of kidnapping, of forcing the prosecutrix to do illicit intercourse, of penetrative sexual assault and of raping the prosecutrix. The witnesses have not deposed an iota of evidence that accused Mr.Kishore Kumar @ Raj Kishore Shah has committed any of the charged offences.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 9 of 11 ::-
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24.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Kishore Kumar @ Raj Kishore Shah for the offences under sections 363/366 of the IPC and under section 4 of the POCSO Act. The prosecution has also failed to prove the alternate charge for the offence under section 376 of the IPC.
25.Consequently, accused Mr.Kishore Kumar @ Raj Kishore Shah is hereby acquitted of the charges for the offences of kidnapping, of forcing the prosecutrix to do illicit intercourse, of penetrative sexual assault upon the prosecutrix punishable under sections 363/366 of the IPC and under section 4 of the POCSO Act. He is also acquitted for the alternate charge of raping the prosecutrix punishable under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
26.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
27.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
28.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 10 of 11 ::-
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29.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Digitally signed by NIVEDITA NIVEDITA ANIL SHARMA
ANIL SHARMA Date: 2018.05.16 15:43:30
+0530
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 14th day of May, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
************************************************************** New Sessions Case Number : 56875/2016.
Old Sessions Case Number : 67/2015.
First Information Report Number : 798/2014. Police Station : Punjabi Bagh .
Under sections 376/366/363 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kishore Kumar @ Raj Kishore Shah. -:: Page 11 of 11 ::-