Delhi District Court
Unknown vs . on 24 August, 2017
1
In the court of Ashwani Kumar Sarpal, Addl. Sessions Judge1
cum Presiding Officer of Special Court under POCSO Act,
(East District), Karkardooma Courts, Delhi.
FIR NO.420/13
PSMayur Vihar
U/S363/354 IPC &
8 of POCSO Act
STATE
VS.
MANISH @ MONU
(SC15/14)
*****************
JUDGMENT: As per record, accused remained in custody from 2311 2013 to 28112013. On the basis of prosecution allegations, the charge for offences under section 363, 354A IPC as well as section 8 of POCSO Act was framed against accused to which he pleaded not guilty.
PROSECUTION ALLEGATIONS: A missing complaint was lodged by Sh. Amar Sharma (father of the victim) in police station on 20112013 at 8.30 p.m. with the averments that he dropped his daughter aged about 15 years (whose identity is not disclosed herewith) at her school at about 8 a.m. in the morning but she did not return back. No suspicion was raised 2 in this missing complaint on any specific person for enticing and taking away the victim with him. On the basis of this complaint, FIR u/s 363 IPC was registered. After two days i.e. on 22112013, victim was brought in the police station by her father and uncle where her statement u/s 161 Cr.P.C. was recorded. She alleged that accused, her neighbour by showing fear of her father took her to Noida and also kissed her. The medical examination of the victim was got done from the hospital and her statement u/s 164 Cr.P.C. was recorded by MM concerned. The accused was arrested on 23112013 by the IO on the basis of secret information from his house. After completion of investigation, accused was charge sheeted but due to not pleading guilty by him, trial started.
EVIDENCE LED: Prosecution in order to prove its case examined total 9 witnesses. PW1 Sh. Amar Sharma and PW3 Smt. Mamta Shara are the parents of the victim. PW2 Smt. Sonia Khanna, Principal of school proved admission and birth record of the victim. PW4 is the minor victim herself (whose identity is concealed herewith). PW5 Sh. Sardesh Sharma is the uncle of the victim who found the victim from Mayur Vihar Metro Station. PW6 Ct. Ram Kishore associated with the IO at the time of arrest of the accused. PW7 duty officer simply recorded formal FIR. PW8 Ct. Manju took the victim to hospital for medical examination whereas PW9 SI Mehmood Hassan is the IO of the case.
It is important to mention here that accused in his statement under section 294 Cr.P.C. admitted recording of statement of victim u/s 164 Cr.P.C. by the MM concerned.
STATEMENT OF ACCUSED U/S 313 CR.P.C. & DEFENCE EVIDENCE: 3 Accused in his statement under section 313 Cr.P.C. totally denied the allegations of prosecution and alleged his false implication in the case. He by moving application under section 315 Cr.P.C. took permission from the court on 852017 to examine himself in defence but lateron changed his mind and closed defence evidence by giving statement in the court on 3172017. He even refused to give any reasons for not leading any evidence in defence.
REASONS FOR DECISION: I have heard Addl. PP for state and counsel for the accused and gone through the record. Following points arose during arguments;
(a) There is no dispute regarding age of the victim: PW2 is the principal of the school where victim got admission in class 1 st and she proved admission, MCD date of birth certificate, transfer certificate record etc. of the victim Ex. PW2/A to D. The date of birth of the victim is 1931998. No dispute was raised about this school record on behalf of accused. The offence took place on 20112013. It means the victim was aged about 15 years and 8 months at the time of incident and thus comes within the definition of 'child' as given under section 2
(d) of POCSO Act. The provision of this Act becomes applicable in the present circumstances.
(b) Dispute regarding arrest of the accused: After the victim went missing on 20112013, her parents started searching her. According to the prosecution story, victim and accused were found sitting in the TSR parked in Mayur Vihar Metro Station on 22112013 in noon time. PW1 father of the victim stated that accused after seeing him 4 had run away from the TSR in which he was sitting with the victim. Similarly PW5 who was accompanying with PW1 also stated that on seeing him, accused run away. However, victim PW4 stated that he was also apprehended by her father and uncle immediately and brought to the police station where police even made inquiries from him. Victim in her statement u/s 164 Cr.P.C. Ex. PW4/A had also stated that accused was caught by her relatives though he had tried to run away and was brought to police station. On the other hand, PW6 Ct. Ram Kishare and PW9 IO SI Mehmood Hassan stated that accused was arrested on 23112013 from his house on the basis of secret information vide arrest memo Ex. PW6/A. Admittedly, no public person was requested to join at the time of arrest of the accused though were available as per PW6. The timing of arrest given by PW6 is 12 noon whereas arrest memo point out that he was arrested at 10 a.m. As per PW6, brother of the accused was also present at the time of arrest in his house but his signatures were not taken on the arrest memo.
Thus, due to contradictory stands taken by witnesses, the time, place and manner of arrest of the accused becomes highly doubtful and its benefit goes to the accused. Hence, the possibility of manipulation in the investigation in this regard cannot be ruled out.
(c) No suspicion upon accused in FIR: PW3, mother of the victim stated in her evidence that on the previous night of day of incident, father PW1 had snatched phone of the victim due to quarrel taken place between victim and her sister and they had also came to know from that mobile phone that accused used to talk with the victim. Victim PW4 also in her statement confirmed that her father had taken her mobile phone on 19112013. PW3 further stated that she also 5 informed the police on 20112013 that victim had left with the accused who was living in the neighbourhood. However, despite it why no suspicion was raised upon the accused in the FIR has remained an unexplained fact. The above facts also indicates that parents of the victim know about the friendship or closeness of the victim with the accused but despite it his name was not mentioned in the FIR as suspicious person and benefit of this fact goes to accused.
(d) Defective and incomplete investigation: Victim left with the accused in the afternoon of 20112013 and she was found sitting in TSR in Mayur Vihar Metro Station on 22112013 at noon time. During this two days time, victim allegedly kept roaming with the accused at various places in Noida such as Atta Market, Grand Mall, Water Park, Film City, Temple etc. and she slept two nights at footpath and stairs of temple. However, PW9 IO did not take any steps by going to different places in Noida and Mayur Vihar Metro station along with the victim or the accused to verify whether victim and accused actually gone there and remained for two days at different places.
According to victim, she and accused used to exchange test messages daily. Even parents of the victim found from the mobile phone that accused was regular in touch with the victim. PW3 even stated to the police on the basis of these mobile phone messages that accused had taken the victim with him. However, IO PW9 did not seize the mobile phone of the victim to establish that both victim and accused were in touch with each other and accused had created some trust and confidence in the mind of the victim due to which she went with him and visited different places for two days with him. Thus, the non conducting investigation and non obtaining material evidence 6 during investigation by the IO has created a serious dent in the prosecution story.
(e) Whether offence of kidnapping is made out: Victim was dropped in her school in the morning by her father PW1 on 2011 2013 but she did not return back to her house so a missing complaint Ex. PW1/A was lodged on the same day by her father. Victim during search made by PW1 and PW5 was found from parking of Mayur Vihar Metro Station on 22112013 with the accused in afternoon.
Victim PW4 in her statement given in court alleged that on 20112013, accused met her after her school was off and told that her father had read SMS and he would beat her if she would go home. Victim also stated that accused got her frightened and asked her to go along with him instead of going to home. Thereafter, at the instance of the accused, she went with him to Noida on his motor cycle. They roamed at different places in Noida and slept two nights on the footpath and stairs of the temple. During this two days time, they visited Great India Mall, Film City, Water Park, Temple etc. On 2211 2013, they came back to Delhi and parked motor cycle in the Mayur Vihar Metro Station parking. From there they roamed at some adjoining places and again came back to Mayur Vihar Metro Station from where they were apprehended. It means the victim remained in the company of the accused almost for two days and visited different places.
Victim PW4 also stated in her statement that accused Manish told her that in case she returned back home, her family members would kill her and she would not be allowed to go to school and for tuitions. Victim also stated that she had asked accused to return back home, but he told her that he would not go to house and 7 his missing report would be lodged and then all would ask her about his whereabouts. Victim also stated that by saying so, accused had frightened her. (Mein To Ghar Nahi Jaunga, Meri Gumshudgi Kee Report Likhi Jayegi Aur Phir Sab Tujhe Puchenge Aur Usne Mujhe Dara Sa Diya).
Ld. Addl. PP stated that offence of kidnapping is made out from these above allegations of the victim because due to fear created by the accused, victim accompanied with him and even accused again frightened her when she had asked the accused to go back. It is argued that accused indirectly compelled the victim to go with him to Noida and in such situation consent given by victim under fear does not exonerate the accused. All these above facts deposed in the court by the victim were also virtually stated by her statement u/s 164 Cr.P.C. Ex. PW4/A. However, in cross examination, victim PW4 stated that accused was known to her few months prior to 20112013 and she left with him on his motor cycle. Victim admitted that she never objected while on the way, why they were proceeding towards going to Noida. She also stated that there was exchange of text messages almost every day between her and the accused. They had also met on one or two occasions earlier and these things were not in the knowledge of their parents. Victim stayed on footpath in the night with the accused and on next day visited some places near Mall, Water Park, Film City etc. and roamed around in the area and went to temple in the evening where night was spent on the stairs but she did not raise any alarm at any stage. Admittedly, victim did not complain to anybody during this time. This conduct and behaviour of the victim leads to the inference that she had voluntarily went with the accused and alleged story of frightening and creating fear of her father in her mind is not worth credence. It is not the case of the prosecution that 8 victim was immature or mentally weak and was not in a position to understand the consequences of her act. She was a student of 10 th class when she left with the accused and was having sufficient maturity to understand the consequences of her going with the accused.
Mother of the victim PW3 stated in her statement that she had no knowledge whether accused had forcibly took the victim with him after giving her enticement or she willingly had gone with him. She even did not identify the accused in the court.
Victim PW4 in her statement Ex. PW4/A given u/s 164 Cr.P.C. had stated that accused told her that her father had sent a message to the accused that her family had come to know everything and if she would go there then she would be killed. However, in which manner, father had sent the message to the accused is not disclosed, whether he had sent SMS to the accused or verbally conveyed it himself or through anyone is not clear from the record. On the other hand, in the court, victim disclosed that accused told that her father had read the SMS and he would beat her if she went to house. The non seizure of mobile phone containing any such SMS which was read by the father of the victim is fatal to the prosecution case.
Even if for the sake of arguments, it is presumed that accused created some fear of her father in her mind and took her with him, then also the above facts and circumstances leads to the inference that victim herself left with the accused and her conduct in roaming with him from one place to another for two days point out that there was no fear in her mind as alleged. Accordingly, it is held that there was no pressure, fear or any coercion on the part of the accused in taking away the victim with him. Hence, no offence of kidnapping under section 363 IPC is made out from the allegations. Mere age of the victim in present situation being less than 18 years 9 itself is not sufficient to punish the accused for kidnapping. In this regard reliance can be placed upon case law State NCT of Delhi vs. Umesh Crl. Rev. P. 266/2014 decided on 2172015 by Delhi High Court. In this case, victim aged about 15 years herself left the house of her parents without any pressure, inducement or coercion from the accused. She went to number of places with accused and ultimately married with him. High Court held that in such situation no offence of kidnapping or even rape is made out against accused.
Supreme Court in case Shyam vs. State of Maharashtra 1995 Crl. L.J. 3974 acquitted the accused for offence under section 366 IPC even when the prosecutrix was less then 18 years of age and had claimed that she was kidnapped under threat. However, the evidence brought on record pointed out that victim left with the accused on his cycle as he was known to her and she never raised any alarm or struggled with him or jumped down from cycle in order to escape.
Accordingly, it is held that accused cannot be convicted for offence of kidnapping in any circumstances.
(f) Whether offence of sexual assault is made out: Victim PW4 in her deposition in the court firstly nowhere stated about any act of sexual assault but after she was declared hostile and cross examined by the prosecution, then only she stated that accused while sitting on the stairs of temple, put his arms around her neck and kissed her. When she refused, then accused did not proceed further. However, victim during cross examination of the prosecution did not disclose on which part of her body, accused had kissed her, though in the statement under section 164 Cr.P.C. Ex. PW4/A, she had stated that accused had kissed her on her cheek.
On the other hand, PW1, father of the victim during search found her in the TSR parked in Metro Station on 22112013 in 10 noon time and on inquiry made by him, victim told that no happening of any kind took place with her as stated in the cross examination of PW1. Similarly, PW3 mother of the victim stated in her cross examination that victim had told her in the police station that accused had not done anything wrong with her. Victim was also taken to hospital for medical examination by the police on 22112013 in the evening after recovery. The MLC Ex. PW9/A and report of Gynecologist MarkA nowhere mention about existence of any injury on the body of the victim. Even in the alleged history given to the doctor, victim has not mentioned anything relating to physical or sexual assault. In the night, victim was produced before Child Welfare Committee in the night and the order of the CWC lying on record also nowhere discloses that victim or police stated anything about any kind of sexual incident. However, the subsequent allegation leveled by the victim that accused put his hand on her neck and kissed her cannot be believed in such situation. Due to these discrepancies, the possibility of making improvements in the statement to this effect cannot be ruled out. Even if for the sake of arguments, it is presumed that accused put his hand on the neck of the victim and kissed her, then that alone would not lead to the inference that it was done with sexual feeling. Both the victim and accused knew each other for several months and were in touch daily through text messages. Both were having friendship or some close love feeling with each other. If the accused had touched the victim due to this friendship or love feeling and kissed her in order to give her some courage or to console her or to show closeness in the capacity of friend, then that itself would not lead to the conclusion that he was having sexual intent at that time and with sexual feeling in his mind, he kissed her. The offence of sexual assault punishable under section 8 of the POCSO Act is only made out when there is a sexual feeling and touching is done with 11 such sexual intent. Before raising presumption under section 29 and 30 of the POCSO Act against accused, prosecution atleast has to bring on record some evidence to point out that act of touching done by the accused was done with some sexual intent.
Victim remained in the company of almost two days including two nights on footpath and stairs of temple but admittedly the accused did not take any of advantage because when she refused, then accused did not proceed further. There is no further allegation of doing anything wrong with the victim. Parents of the victim know about it that is why they did not opt for internal medical examination of the victim. Accordingly, it is held that no offence of sexual assault is made out under section 354A and section 8 of the POCSO Act and accused becomes liable for acquittal in this regard.
In view of the above discussions, I am of the opinion that prosecution has failed to prove its case beyond doubt. Thus, by giving benefit of doubt, the accused is acquitted of all the charges. His bail bond cancelled and surety discharged. I am of the opinion that it is not a fit case where any compensation should be awarded to the victim. However, accused is directed to furnish a personal bond of Rs. 10,000/ with one surety of like amount under section 437A Cr.P.C. which will remain valid for a period of six months. File be consigned to record room.
Digitally signed by ASHWANI ASHWANI KUMAR
SARPAL
KUMAR Location: Karkardooma
Courts, Delhi
SARPAL Date: 2017.08.24
16:26:52 +0530
Dated2482017. (Ashwani Kumar Sarpal)
Addl. Sessions Judge1
Judge, Special Court, POCSO