Delhi District Court
State vs Gaurav @ Bunty on 6 December, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 86/16
FIR No. 1322/14
PS Khajuri Khas
U/s 354A/506/509 IPC and
Section 12 POCSO Act.
State
Versus
Gaurav @ Bunty,
S/o Sh. Sarnam Singh,
R/o H. No. A442, Gali No.7,
Moonga Nagar,
Delhi. ....Accused.
Date of Institution : 30.05.2016.
Date of Arguments : 30.11.2017.
Date of Pronouncement : 06.12.2017.
(Section 437A Cr.P.C stands complied with)
JUDGMENT
Briefly stated the case of the prosecution is, that on 30.11.2014, DD No. 76B was marked to SI Naval Singh. However, as the FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 1 of 12 ASJ01/NE/KKD: 06.12.2017 complainant did not give any statement, the DD was kept pending. On 02.12.2014, on receipt of DD No. 76 B, SI Veena and SI Naval Singh went at the house of complainant i.e. H. No. 412, Gali no. 7, Moonga Nagar, Delhi. There, she recorded the statement of complainant who alleged that on 30.11.2014 at about 09.00 p.m, she alongwith her mother was having food in a reception party at Tek Chand Vatika, E Block, Jodha Ram Gali, Dayalpur, Delhi. Gaurav @ Bunty was also in that party. Gaurav spilled food on her clothes. When her mother asked Gaurav why he had done so, he started abusing her and her mother. He also pulled her hand and threatened to kill them. Due to a dispute with neighbour, she did not give any statement on that day. However, later on, accused came to her house and started abusing her father and also threatened them. On these allegations, present FIR u/s 354A/506/509 IPC and Section 12 POCSO Act was registered against the accused.
2. During investigation, statement of victim u/s 164 Cr.P.C was recorded. Accused was arrested at the instance of victim. After completion of investigation, charge sheet u/s 354A/506/509 IPC and sections 8/12 POCSO Act was filed against the accused.
3. On 06.09.2016, charge u/s 12 of POCSO Act and in alternative u/s 354A IPC, u/s 509 IPC and u/s 506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined 09 witnesses.
5. PW1 is HC Ravinder Kumar. He deposed that on FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 2 of 12 ASJ01/NE/KKD: 06.12.2017 02.12.2014, at about 06.30 p.m, he received a rukka from SI Naval Singh. On the basis of rukka, he registered FIR, copy of which was Ex.PW1/A. He made endorsement (Ex.PW1/B) on the rukka. He handed the copy of FIR and original rukka to SI Naval Singh for further investigation. He also issued certificate u/s 65B Indian Evidence Act. Copy of certificate was Ex.PW1/C.
6. PW2 is Sh. Radhey Shyam, Manager from Jai Public School, Chandu Nagar. He deposed that on 02.04.2003, victim was admitted in their school in class 1st. He proved the copy of admission form of victim as Ex.PW2/A, copy of admission withdrawal register as Ex.PW2/B. As per records, the date of birth of victim was 12.12.1997. Affidavit given by father of victim was Ex.PW2/C. Certificate issued by principal regarding the particular of victim was Ex.PW2/D.
7. PW3 is Ct. Sanjay Kumar. He deposed that on 30.11.2014 at about 09.46 p.m., an information regarding a quarrel at H. No. 412, Gali No. 54, Moona Nagar was received. He recorded that information vide DD No. 76B. Copy of DD was exhibited as Ex.PW3/A. He further deposed that the telephonic information of this DD was given to SI Naval Singh to take further action.
8. PW4 is HC Sandeep. He deposed that on 24.01.2015, he alongwith SI Veena went to Gali No. 7, Moona Nagar. There, they met victim. Thereafter, they went at the house of accused and at the instance of FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 3 of 12 ASJ01/NE/KKD: 06.12.2017 victim, accused was arrested vide arrest memo Ex.PW4/A. Personal search of accused was conducted vide memo Ex.PW4/B. Disclosure of accused was recorded vide statement Ex.PW4/C. Thereafter, he took accused to JPC hospital for the medical examination of accused.
9. PW5 is Smt. Mithilesh, mother of victim. PW6 is the victim. PW7 is Suresh Sikarwar, father of victim. Their testimonies shall be considered at a later stage as and when required.
10. PW8 is SI Naval Singh. He deposed that on 30.11.2014, at about 09.30 p.m., on receipt of DD no. 76B, he alongwith Ct. Ajay Malik went at Tek Chand Vatika, E Block, Nehru Vihar. There, they could not find the complainant and thus, they went at the house of the complainant. The address of complainant was mentioned in DD entry. There, he met the complainant and her mother. On being inquired, complainant told them that in the reception party, one of their neighbours, whose name she did not remember, had thrown some dish on her clothes and she did not want to give any statement. Thereafter, he returned to police station and the DD was kept pending. On 02.12.2014, that DD was marked to SI Veena and he alongwith SI Veena went at the house of victim i.e. H. No. 412, Gali No. 7, Moonga Nagar, Delhi. After inquiries, IO recorded statement of victim and prepared rukka. IO handed the rukka to him to get the FIR registered. He took the rukka to police station and got the FIR registered. After registration of FIR, he handed the original rukka and copy of FIR to the IO.
FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 4 of 12 ASJ01/NE/KKD: 06.12.2017
11. PW9 is SI Veena. She is the IO of the case. Her testimony shall be considered at a later stage as and when required.
12. Thereafter, on 16.11.2017, statement of accused u/s 313 Cr.P.C was recorded and accused preferred not to lead evidence in his defence.
13. I have heard learned Addl. PP for the State as well as learned counsel for the accused.
14. It has been contended by learned Addl. PP that the victim and her mother have been consistent in their testimonies that accused on 30.11.2014, in a party at Tek Chand Vatika, had spilled some dish on the clothes of victim, he also abused her and threatened to kill her. It has been further contended that victim and her mother have been consistent in their cross examination also and thus, the prosecution has proved its case.
15. On the other hand, learned counsel for accused has contended that the accused has been falsely implicated in this case. Victim was having friendship with accused. This friendship was discovered by the parents of victim whereupon under the pressure of her parents, victim falsely implicated accused in this case. He has further contended that this fact has emerged from the cross examination of victim. He has further contended that the prosecution has not even established that on 30.11.2014, a party had happened at Tek Chand Vatika which was attended by victim and accused. He has further contended that if such an incident had happened in that party, some videography could have been shown to establish the presence of FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 5 of 12 ASJ01/NE/KKD: 06.12.2017 victim and accused in that party. He has further contended that if such an incident had happened in the party, many persons, who were present there, might have witnessed the incident and thus, independent witnesses should have been examined by the prosecution especially in view of the fact that victim was having a relation with accused which was not liked by parents of victim. However, the prosecution has not examined any independent witness and thus, the prosecution has failed to prove its case.
16. I have considered the rival submissions.
17. The prime witness in this case is victim, who appeared as PW6.
18. She deposed that in 12th month of 2014, she and her mother were attending a party at Tek Chand Vatika. During her cross examination by ld. Addl. PP , she admitted that the incident had taken place on 30.11.2014. She further deposed that at about 9/9.30 p.m., when she, alongwith her mother and other neighbours, was taking dinner, accused who was under intoxication, came near her and spilled a dish on her clothes. He did so deliberately. She informed her mother about it. On being confronted, accused started abusing her mother and also threatened her that he would kill them. Thereafter, they returned her home. After sometime, accused came to their house and started abusing her father. They did not make any complaint as this was a dispute with a neighbour. However, on 02.12.2015, her father made a call to PCR.
19. During her cross examination by ld. Addl. PP, she admitted FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 6 of 12 ASJ01/NE/KKD: 06.12.2017 that the complaint was made on 02.12.2014.
20. During her cross examination on behalf of accused, she admitted that in her statement u/s 164 Cr.P.C, which was Ex.PW6/B, she had not told that accused had pulled her by her hand. She also admitted that in her statement u/s 164 Cr.P.C, it was not recorded that accused had followed her to her house. She further deposed that her neighbours had tried to stop accused but he did not stop and then his family members made him to go away. She further deposed that accused was known to her as a neighbour and she used to talk to him before the incident but she alone had never gone for an outing with him. At that stage, she was shown photographs mark D1 to D3. She admitted that these photographs were taken on her birthday and they were taken in a restaurant. She further deposed that when those photographs were taken, her parents were not present and they were also not aware about it. She was accompanied by her friend Pallavi, who was seen in photograph mark D4. Once or twice, she had gone for an outing with accused. Her parents did not like her going out with accused and they used to object to it. She denied that she was deposing falsely at the behest of her parents or that no such incident had ever taken place.
21. The next witness is mother of victim, who appeared as PW5. She is an eye witness to the incident. She deposed that on 30.11.2014 at about 09.00 p.m., she alongwith victim had gone to Tek Chand Vatika to attend a function. In that reception, accused spilled a dish on victim's FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 7 of 12 ASJ01/NE/KKD: 06.12.2017 clothes. Victim informed her about it and she confronted accused but accused started abusing her and the victim. He also pulled the victim by her hand. Many public persons were present there. Thereafter, they returned their home. On the same night, accused, who was residing in front of their house, started abusing her husband. Two days after the incident, she reported the matter to the police.
22. During her cross examination, she deposed that she did not know whether victim wanted to marry accused. She denied that victim wanted to marry accused and used to roam with him and they objected to it and volunteered, that victim never used to go with accused alone. She had not given clothes of the victim upon which accused had spilled the dish. Other public persons, who had objected, were her neighbours. In her presence, police had never made any inquiries from any of the neighbours. She denied that accused did not abuse the victim or throw dish upon her in any function or that he had never caught victim by her hand. She denied that accused had been falsely implicated in this case as the victim had relation with accused.
23. The other witness is father of victim. He enters into the picture after the alleged incident at Tek Chand Vatika had happened. He appeared as PW7 and deposed that on coming to know about the incident happened at Tek Chand Vatika, he returned home. On reaching home, his wife informed him about the incident. On hearing about the incident, he came out of his house and reached the house of accused where father of FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 8 of 12 ASJ01/NE/KKD: 06.12.2017 accused was standing. Accused was questioned about the incident and he (accused) started abusing him. Then, father of accused assured that accused would not repeat any such act and the matter should be closed being a neighbourly dispute. In the meanwhile, he had already made a call to PCR. However, considering the request of father of accused, he did not make any statement to the police. However, accused did not mend his ways and on the next day, accused again started harassing and abusing victim. As such, on 02.12.2014, he made a call to police.
24. During his cross examination, he denied that he did not like the victim meeting the accused. He denied that accused belonged to a lower caste and that is why, they were against the intimacy of victim with accused. He denied that a false case had been imposed upon the accused.
25. From the entire testimonies of these witnesses, I find that even if they are taken on their face value, no offence u/s 12 POCSO Act, u/s 354A and 509 IPC is made out.
26. As per victim, accused had spilled something on her clothes but that would not amount to her sexual harassment as no sexual intent has been imputed. This act per se does not reflect any sexual intent or show that this alleged contact involved sexual overtures. However, there is an act of physical contact which has been alleged to accused and that contact is that accused had pulled the hand of victim but it is to be seen that even as per the testimony of victim and her mother and as per the prosecution, accused had pulled the hand of victim after there was a quibble between FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 9 of 12 ASJ01/NE/KKD: 06.12.2017 victim and her mother on one side and accused on other side. Therefore, in absence of any motive or intent with which hand of victim was pulled by accused, this act would not be falling with the provisions of either section 12 of POCSO Act or section 354A IPC.
27. The third charge is u/s 509 IPC. It has been alleged that accused had abused the victim and her mother with the intention to outrage/ insult their modesty. However, merely stating that accused had abused is not sufficient to prove the ingredients of offence u/s 509 IPC. Abuses can be of many kinds and not all abuses would outrage the modesty of a woman and therefore, in absence of any specifications, no offence u/s 509 IPC would be made out.
28. As regards section 506 IPC, here again it has merely been stated that accused threatened to kill victim and her mother. However, mere statement of this nature is not sufficient to bring home an offence u/s 506 IPC. It has to be shown that such a threat generated fear in victim or her mother and they became afraid for their safety. This is not so stated and conduct of victim and her mother in retaining home and not deciding to make a complaint reflects that they had not taken this threat at its face value.
29. Even otherwise, the defence through the victim has proved that accused and victim were having a friendship. Through the cross examination of victim, accused has also proved that this friendship was not liked by the parents of victim and therefore, a motive for implication of FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 10 of 12 ASJ01/NE/KKD: 06.12.2017 accused cannot be said to be totally non existent.
30. It is also to be noticed that there are certain discrepancies in the statement of these witnesses. On the one hand, victim during her examination in chief as well as in her statement u/s 164 Cr.P.C did not state that accused had pulled her hand but her mother had deposed that accused had pulled the victim by her hand.
31. It is also to be seen that as per the mother of victim and victim, accused arrived at their house and started abusing PW7 (father of victim) whereas, as per father of victim, he went to the house of accused where on being questioned about the incident, accused started abusing him.
32. Though these are minor contradictions but considering that there could have been a motive for implication of accused, it was necessary for the prosecution to bring some independent witnesses to corroborate the testimonies of these witnesses but the prosecution has failed to bring any independent witness despite there being a possibility of numerous witnesses to both the incidents. First incident which had allegedly happened at Tek Chand Vatika was at a marriage function. Many people would be present there. Victim had also admitted that her neighbours were present at that time and they had intervened. The second incident had happened in front of house of victim where accused allegedly abused her father. As admitted by PW7, 3040 neighbours were present there at that time. Therefore, on both the occasions prosecution had the opportunity to find independent witnesses but no such effort was made. As such in view of my above discussion, I FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 11 of 12 ASJ01/NE/KKD: 06.12.2017 find it will be unsafe to rely on uncorroborated testimonies of PW5, PW6 and PW7.
33. In view of my above discussion, I find that the prosecution has failed to prove its case beyond all reasonable doubts. Accused is entitled to benefit of doubt. Accused is accordingly acquitted of all the charges framed against him. His bail bond stands cancelled. Surety stands discharged. File be consigned to record room.
Announced in open court (Parveen Singh) today on 06.12.2017. Judge Special Court (POCSO Act) (This judgment contains 12 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
FIR No. 1322/14 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Khajuri Khas 12 of 12 ASJ01/NE/KKD: 06.12.2017