Delhi District Court
State vs . Mohit on 31 August, 2015
State Vs. Mohit
IN THE COURT OF SH. ARVIND KUMAR
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No : 119/13
ID No. : 02401R0273612013
FIR No. : 65/13
Police Station : Gulabi Bagh
Under Section : 354A/354D/323/506 IPC &
: 8/11(iv)/12 of POCSO Act
State
Versus
Mohit @ Moni
S/o Sh. Raju
R/o 540/13, Nai Basti,
Kishan Ganj, Delhi - 110 007.
.........Accused
Date of Institution : 30.05.2013
Date of judgment reserved on : 13.08.2015
Date of judgment : 31.08.2015
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. Hemant Choudhary, Advocate, Ld. Counsel for the
accused.
SC No. 119/13 Page 1 of 17
State Vs. Mohit
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on 07 th May 2013, a call was received regarding quarrel at Main Chabutra, Gali No. 1, Kishan Ganj, Nai Basti, Vide DD no. 32PP dated 07.05.2013. The police officials reached at 483, Nai Basti, Kishan Ganj and recorded the statement of complainant (complainant is the mother of victim and in order to conceal the identity of the victim of sexual assault, she is hereinafter referred as complainant and the prosecutrix shall be referred as the victim). The complainant stated that the accused was stalking her daughter when her daughter used to be on her way to school and had also caught her hand and was also asking her daughter to have friendship with him. The victim has informed her mother 4-5 days before and the complainant tried to persuade the accused not to do these acts but accused continued with his misbehaviour and on 07.05.2013 her son was coming from his maternal grandfather's house on foot and when he reached near Pratap Nagar metro station he met accused and asked the accused to remain away from his sister and on this accused had beaten her son and also threatened to kill them. An FIR was lodged under section 8/11 (iv)/12 of POCSO Act, 2012 and 354/354(A)/354(D)/323/506 IPC. The IO prepared site plan and arrested the accused. Police recorded the statement of victim under section 161 Cr. P. C. The victim was taken before the Ld. MM and her statement under section 164 Cr. P. C. was got recorded.
2. After completing investigation, challan was filed for the offences punishable under Section 8/11 (iv)/12 of Protection of Children From Sexual Offences Act (in short POCSO Act) 2012 and 354/354 (A)/354(D)/323/506 IPC.
SC No. 119/13 Page 2 of 173. After complying with the provisions of Section 207 Cr. P.C., a charge for the offence punishable under Section 354D/506/323 IPC read with Section 8/12 of POCSO Act was framed to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following seven witnesses:-
PW1 Mother of the victim, the complainant. PW1, deposed about incident and exhibited her statement as Ex. PW1/A. PW2 The brother of the victim. PW2, deposed about the incident and exhibited statement dated 08.05.2013 as Ex. PW2/DA.
PW3 Duty officer, ASI Kishan Singh. He recorded FIR and exhibited copy of FIR as Ex. PW3/A and endorsement as Ex. PW3/B. PW4 Ct. Sunil Kumar. He lodged DD no. 32 PP and exhibited attested copy of DD No. 32 PP as Ex.
PW4/A. PW5 Victim. Deposed about incident and exhibited her statement under section 164 Cr. P.C as Ex.
PW5/A. PW6 Ct. Rajesh. He remained with the IO during investigation and exhibited arrest memo of accused as Ex. PW6/A, Personal search memo as Ex. PW6/B and disclosure statement as Ex.
PW6/C. SC No. 119/13 Page 3 of 17 State Vs. Mohit PW7 SI Satender, IO of the case. IO of the case exhibited Rukka as Ex. PW7/A, site plan as Ex.
PW7/B, seizure Memos of date of birth records of victim as Ex. PW7/C and Ex. PW7/D and departure entry vide DD No. 3 PP as Ex. PW7/E.
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P. C. The accused denied all the allegations made against him and further stated that a false case has been registered against him by the police. The accused stated that he alongwith his friend Manoj @ Pali was present at Metro Station Pratap Nagar as there was no light in their house and Gali, and brother of the victim along with his two friends namely Hanny and Puneet came there and the brother of the victim was under influence of liquor and he demanded Rs. 1,000/- from accused which the accused refused. The brother of the victim slapped him and quarrel took place. In the meantime, he got call from his mother that light had come and he informed his parents that brother of the victim was beating him and his parents and brother reached there and rescued him from brother of the victim and his friends.
6. Learned counsel appearing for the accused contended that there are certain circumstances which make the prosecution case doubtful. It is submitted that the statement of the victim is not reliable and consistent. Ld. Counsel for accused submitted that as per the prosecution case, the accused had caught victim's hand and victim had slapped the accused but the said incident was not reported by the victim to police. Ld. Counsel for accused also submitted that there was a quarrel but a false case of eve teasing was registered by the police. It is also submitted that no person from the public was made witness and the brother of the victim refused for SC No. 119/13 Page 4 of 17 State Vs. Mohit medical examination which shows that no injury was suffered by the brother of the victim.
7. Per contra, learned Additional Public Prosecutor refused the said contentions by arguing that though there are certain lapses in the investigation, yet the said lapses are not fatal to the prosecution case in any manner because victim not only categorically deposed against the accused but also identified him during trial. It was contended that there is no requirement of law that prosecution is supposed to produce any corroborative piece of evidence. It was urged that conviction can be recorded on the sole uncorroborated statement of victim. Ld. Add. PP further submits that there is presumption of guilt in terms of section 29 and 30 of POCSO Act and the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt.
8. So far as the age of the victim is concerned PW7 SI Satender stated that he had collected the documents relating to the age of accused from her school and the school record showed that date of birth of victim was 28.06.1999 and he prepared memo Ex.PW7/C and Ex.PW7/D. The witness was not cross-examined on this point. It is clear from the aforesaid record that victim was minor as on the date of incident.
9. Now, I turn to testimony of victim PW5. PW5 stated that accused was residing in her neighbourhood and used to follow her when she used to go to school and the accused asked her to make friendship and at one occasion he had caught her arm and the victim had slapped him and the said incident had taken place about 2-3 days before lodging of FIR and she had told about the incident to her mother on the very same day and her mother made a complaint at the house of the accused and her SC No. 119/13 Page 5 of 17 State Vs. Mohit brother had asked the accused to keep away from her and the accused has beaten her brother. PW5 also stated that accused had tendered apology to her mother when her mother made a complaint at the house of the accused. During cross-examination PW5 stated that there are only two houses between her house and house of the accused and she had been knowing the accused for previous one year as the accused had friendship with her brother. PW5 stated that accused had followed her 4-5 times i.e. on Tuesday, Wednesday, Thursday and Friday before lodging of FIR in previous week and he used to ask her from distance to do friendship with her and the accused did not ask for friendship before these four days. PW5 stated that she had complained about the incident to her parents and brother at the time of lodging of FIR. PW5 had further stated that she did not make any complaint to her parents/family on the day of incident or on the next day of the said incident. PW5 stated that accused stopped her between 07.15 to 07.20 a.m. on the way about 1-2 days before lodging of FIR and he proposed for friendship and the accused had also caught hold her arm and she returned to her home and complained to her mother and her mother complained to police and they also went to police station but no action was taken on her complaint.
10. PW1, mother of the victim stated that one boy of their colony namely Rohit used to tease her daughter on the way when she used to go to school and she called the parents of the said boy but the accused denied all the allegations and his parents started quarreling with them and also abused them. PW1 stated that one day her son Ankit told her that her son was beaten by Rohit and his parents and accused threatened her son that he would eliminate them. She dialled at 100 number, police came and recorded her statement, Ex. PW1A. During cross-examination PW1 stated that the police had reached there within 10 minutes and she had called the SC No. 119/13 Page 6 of 17 State Vs. Mohit police at 11.20 p.m. PW1 stated that quarrel had taken place with her son not at her house but at the place near Metro Station and when the accused and his parents came to her house to quarrel with her son, she came to know that quarrel had taken place with her son at Metro Station and due to that reason public persons gathered there. PW1 stated that the police had taken all of them i.e. PW1, her son, Mohit and his parents to police station. PW1 stated that after 3-4 days, police again visited the spot when she made a call to the police as grand-mother of the accused was abusing her. PW1 stated that she returned to her house after 15 minutes and again said that she returned from the police station in the morning. PW1 stated that since she did not know anything about the eve-teasing prior to 08.05.2013, she did not make any complaint at the school of her daughter to take care of her child. PW1 stated that police did not prepare any document on the spot and prepared all the documents at the police chowki. PW1 stated that she called the parents of the accused about three days before the date of incident i.e. 07.05.2013 and on that day, parents of the accused did not quarrel with her and the quarrel had taken place with the parents of the accused when the accused had beaten her son at metro station. PW1 stated that her daughter did not tell date, time and place of incident to her nor she went to the school of her daughter to request them to take care of her daughter nor went to police station. PW1 stated that she had called the police because accused had beaten her son at Metro Station. PW1 stated that she did not see any injury on the person of her son but he was making complaint of pain in his body.
11. PW2 , brother of the victim stated that the accused used to tease his sister when she was going to school and coming back and at one occasion accused had also caught her hand. PW2 stated that a meeting SC No. 119/13 Page 7 of 17 State Vs. Mohit had taken place between his parents and parents of accused and at that time accused assured that he would not tease his sister again. On 07.05.2013, PW2 was coming back from the house of his maternal- grandfather (nana) and at about 11.00 p.m. accused met him on the way outside Pratibha School, Pratap Nagar, Delhi. PW2 asked the accused why the accused used to tease his sister and thereafter a quarrel had taken place between him and accused and mother and brother of the accused also reached there and caught hold him and beaten him and the PW2 sustained injuries in the such quarrel. PW2 stated that accused was his friend and was residing behind his house. During cross-examination, PW2 stated that quarrel had continued for about 10 minutes and they were beating him by giving blows of fists and contusion had developed on his head because of the injuries inflicted by the accused persons. PW2 stated that he did not call the police and the police came outside his house after about 30 minutes of the incident. PW2 stated that he refused for medical examination. Police took all of them i.e. PW2, his mother, his sister, his maternal uncle, maternal aunt, accused, his parents, his brother and his sister to police station and after the incident, police did not visit his house. PW2 stated that he had stated to the police that his sister had told him that accused used to tease her on the way, while her sister was commuting to school. PW2 stated that no complaint was made by them to school nor to police when his sister made a complaint about eve-teasing and he had come to know about the eve-teasing on the next day of meeting that had taken place at their house but he did not know the date when the meeting had taken place. The meeting had taken place about 3-4 days before 07.05.2013 and he was not present in the meeting.
12. In nutshell, the case of prosecution is that accused was following the victim when she was going to school and one day caught her SC No. 119/13 Page 8 of 17 State Vs. Mohit hand. The mother of victim met with parents of accused and complained about act of accused and on 07.05.2013, the brother of victim asked accused to keep away from victim and was beaten by the accused and his family members.
13. I will firstly deal with the incident of stalking and accused catching victim's hand.
14. As per the testimony of victim, PW5, the accused used to follow the victim when she used to go to school and one day accused caught victim's hand and asked her to make friendship with him. It is noted that the victim has not stated the date of the incident in her entire testimony. The victim in her chief-examination has stated that accused had caught her arm and she slapped him and the incident had occurred 2-3 days before lodging of the FIR. During cross-examination victim stated that the accused stopped her way and caught her arm about 1-2 days before lodging of FIR. Victim also stated that when accused had caught hold her arm, she complained to her mother and her mother complained to police and they went to the police station alongwith brother of the victim but no action was taken on their complaint. Here it is seen that the witness has given different version regarding the day of incident of catching her hand by the accused. There are improvement / contradictions in the statement of witness. The witness is more than 13 years of age and could have stated the date of incident but she has given different versions. Further there is nothing on record to show that mother of victim had made any complaint to police before 07.05.2013. Even mother of victim did not state that she made any complaint to police before 07.05.2013 regarding eve-teasing. Mother of victim stated that she made complaint because a quarrel had taken place on 07.05.2013.
SC No. 119/13 Page 9 of 17State Vs. Mohit Further, the victim stated that accused was following her when she used to go to school. During cross-examination, the victim stated that accused had followed her 4-5 times i.e. on Tuesday, Wednesday, Thursday and Friday before lodging of the FIR. The FIR is lodged on 07.05.2013 which was Tuesday. Further the victim in her statement recorded under section 164 Cr. P.C. stated that the accused was following her for the last 15 days. There is inconsistency in version of victim. Victim stated that her mother made complaint to parents of accused and accused tendered apology to her mother. During cross-examination, the victim stated that she made complaint to her parents and brother about the accused following her at the time of lodging of the FIR. Victim had also stated that she did not make any complaint to her family on the day of incident or next day of incident. Here it is seen that if the victim has informed her mother on the day of lodging of FIR, there was hardly any possibility of victim's mother meeting accused's parents.
15. The testimony of mother and brother of victim also did not state the date, time or place of the incident when accused caught victim's hand and when accused followed the victim. PW1, Mother of victim had stated that her daughter had not informed her the date, time and place of incident. PW1 stated that she was not aware about the eve-teasing incident prior to 08.05.2013 and for this reason she had not made any complaint to school. PW1 also stated that she had called the parents of the accused about 3 days before lodging of FIR regarding eve-teasing of her daughter. The testimony of PW1 is contradictory as if she came to know of incident of eve-teasing on 08.05.2013, how she can have meeting with accused's parents regarding eve-teasing of her daughter 3 days before lodging of FIR. It is seen that there are further contradictions in the testimony of PW1, mother of the victim as in her chief-examination the PW1 had stated that she had talked to the parents of the accused regarding eve-teasing of her daughter and his SC No. 119/13 Page 10 of 17 State Vs. Mohit parents quarreled with her and abused them and during cross-examination she stated that parents of the accused did not quarrel on that day. Here it is seen that PW5 victim stated that accused had tendered apology when her mother complained to parents of accused. The testimony of PW5 victim and PW1 mother of victim are vague and contradictory.
16. Now, I turn to incident dated 07.05.2013, regarding beatings and threat given to the PW2. PW2 stated that he was coming from his maternal grand-father's house at about 11.00 p.m. and met accused and asked him to keep away from his sister and he was beaten by the accused, his mother and brother. Here, the version of IO / PW7 is different and he stated that family members of the accused were not involved in beatings given to the accused. The PW2 stated that he sustained injury in the quarrel and contusion was developed on his head because of the injury but did not agree for medical examination. No justifiable reason is given by the PW2 for refusal for his medical examination. PW1 mother of victim stated that her son did not sustain any injury but he was making complaint of pain in his body. Under the facts and circumstances, it cannot be believed the PW2 has suffered any injury. The PW2 has also not reported the matter to police, rather mother of PW2 called police when the parents of accused and accused came at house of complainant and quarrel took place. The aforesaid incident as per prosecution case has taken place at public place near Metro Station but no public person / independent witness was joined in the investigation. With regard to the presence of public persons, PW2 stated that he could not say if public person were present there but PW6, IO has clearly stated that there were 20-25 persons gathered there. IO failed to state any justified reason for not joining any independent witness in interrogation. It is also relevant to discuss that the PW3, mother of victim has stated that her son PW2 was threatened by the accused but PW2 did not utter even a single word about threat given by accused.
SC No. 119/13 Page 11 of 1717. Now, the question arises as to whether conviction can be recorded on the basis of uncorroborated testimony of PW5, the victim.
(I) In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 at page 343 it was held:-
The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof.
The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we March proceed to consider the evidence of Sarubai (PW 2).
(emphasis supplied) SC No. 119/13 Page 12 of 17 State Vs. Mohit
(ii) In Panchhi v. State of U.P., (1998) 7 SCC 177 at page 181 Hon'ble Supreme Court observed:
Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW 1, he being a child witness. According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
(emphasis supplied)
(iii) In Hamza v. Muhammedkutty, (2013) 11 SCC 150 at page 161 Hon'ble Supreme Court observed:
The learned counsel for the State is right that the consistent version of PW 1 is that A-1 and A-2 have committed murder of the deceased. But the High Court has rightly relied on the observations of this Court in Suresh v. State of U.P. [(1981) 2 SCC 569 : 1981 SCC (Cri) 559] that children mix up what they see and what they like to imagine to have seen. Glanville Williams says in his book The Proof of Guilt, 3rd Edn., published by Stevens & Sons:
"Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth."
Hence, the proposition laid down by the courts that as a rule of practical wisdom, the evidence of child witness must find adequate corroboration. (Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] .
SC No. 119/13 Page 13 of 17State Vs. Mohit (emphasis supplied)
18. It is observed that there are number of material contradictions in the testimony of victim PW5. The testimony of mother of victim is also contradictory and inconsistent. Further with regard to the incident dated 07.05.2013, the testimony of PW2, brother of victim is also not reliable. Considering the aforesaid testimonies of witnesses, in my opinion the prosecution has failed to establish its case beyond reasonable doubt.
19. So far as, investigation is concerned it also does not inspire confidence. The testimonies of PW3 ASI Kishan Singh, PW6 Ct. Rajesh and PW7 SI Satender are relevant.
20. PW3 is the Duty Officer and registered FIR, Ex. PW3/A and made endorsement on the Rukka Ex. PW3/B. During cross-examination, PW3 stated that mother of the victim came to the police station before 08.00 a.m. and he had supplied the copy of FIR and obtained the signatures on his office copy and he could not tell how signature of mother of victim appeared on Ex. PW3/A.
21. PW6 Ct. Rajesh stated that on 07.05.2013, he joined investigation with HC Ramesh and they went at house no. 483, Nai Basti, Kishan Ganj, Delhi on receipt of call of quarrel and on reaching there it was revealed that it was a matter of eve-teasing. PW6 stated that SI Satender had recorded the statement of victim and IO gave Rukka to him and sent him to police station to lodge an FIR and after getting registration of FIR he returned to the spot and handed over the copy of FIR and original Rukka to IO. Thereafter, they went at the house of the accused and accused was arrested from his house. Arrest memo was prepared. Personal search SC No. 119/13 Page 14 of 17 State Vs. Mohit was conducted and memo Ex. PW6/A and Ex. PW6/B were prepared.
22. PW7 is IO and stated that he reached on the spot. He recorded statement of mother of victim, prepared Rukka Ex. PW7/A and sent to police station for lodging FIR. He prepared site plan, Ex. PW7/B and recorded statement of brother of victim, PW2 and search was conducted at the house of accused and accused was brought to police station as public persons gathered at the spot. He prepared arrest memo, personal search memo and recorded disclosure statement and on next day, SI Mukesh Devi recorded the statement of victim. PW7 also stated 20-30 persons gathered on the spot. ON 08.05.2013, no incident of eve-teasing took place and only quarrel had taken place. PW7 stated that victim's brother refused to go to hospital.
23. As per the prosecution case PW6 Ct. Rajesh had taken the rukka and FIR was lodged and after registration of FIR, returned to spot and handed over the copy of the FIR and original rukka to IO and thereafter they went to the house of accused and accused was arrested from his house and arrest memo Ex. PW6/A was prepared and personal search memo Ex. PW6/B was prepared. The testimonies of public witnesses is not supporting the prosecution case. PW1, mother of victim stated that police has taken her, her son, accused and his parents to police station and had also stated that police did not prepare any document at the spot and all documents were prepared at police chowki. PW2, brother of victim also stated that police had taken him, his mother, his sister, his uncle and his aunt, accused and his parents, his brother and sister to police station. DW1, Smt. Premlata, sister of accused also stated that police took both the parties to police chowki.
SC No. 119/13 Page 15 of 17State Vs. Mohit It is noted that PW6, Ct. Rajesh stated that IO recorded statement of victim on spot while PW7, IO stated that statement of victim was recorded on the next day. PW6 states that accused was arrested from his house, and IO says accused was arrested from police station. It is clear from record that investigation of police is filled with inconsistencies and infirmities.
25. Here it is relevant to refer the judgment passed by Supreme Court, State of A.P. v. Punati Ramulu 1994 Supp (1) SCC 590 at page 591 it was held:
".......... Once we find that the investigation officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence oft he nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues...."
26. From the aforesaid testimonies of the witnesses, it is clear that the police official has conducted the entire investigation in police station only and tried to project that the rukka was written at the place of incident and was sent to Duty Officer, FIR was registered and was again taken to IO. The arrest memo shows place of arrest as Police Post Andha Mugal while PW6 had stated that accused was arrested from his house. It is also clear on the testimony of the aforesaid witnesses that police prepared all the documents at the police station. The investigation SC No. 119/13 Page 16 of 17 State Vs. Mohit conducted by police is tainted and not reliable. Applying the above case law and the facts and circumstances of the case in hand, I am of the view that no reliance can be placed on prosecution case.
27. Now coming to the issue as to whether presumption under section 29 of POCSO Act is helpful to the prosecution to prove the guilt of accused?
28. No doubt under section 29 of the POCSO Act, presumption lies in favour of prosecution and onus is upon the accused to establish that he had not committed the said offence. But it is also settled law that presumption can be rebutted by referring the evidence led by the prosecution and there is no requirement to lead any independent evidence to rebut the presumption. As already discussed, in the present matter, accused has demolished the prosecution case by referring to the evidence led by prosecution. Thus, to my mind, Section 29 of the POCSO Act is also not helpful to the prosecution in any manner.
29. Keeping in view the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts, thus I hereby acquit the accused Mohit @ Moni from all the charges.
Announced in the open Court
on this 31st day of August, 2015 (ARVIND KUMAR)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
SC No. 119/13 Page 17 of 17