Delhi District Court
State vs Mr.Sanjay Kumar -:: Page 1 Of 10 ::- on 7 October, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE (POCSO ACT),
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
State
versus
Mr.Sanjay Kumar
Son of Mr.Shankar Lal
R/o H. No. 470, Gali no.8, C-Block,
Mangolpuri, Delhi.
(Permanent address - Village Kalwari, PS Kalwari,
Post Kalwari, District Basti, U.P.)
First Information Report Number : 212/14.
Police Station : Khyala.
Under sections 363/366/376 of the Indian Penal Code
and under section 5(i)/6 of the POCSO Act.
Date of filing of the charge sheet : 24.07.2013.
Arguments concluded on : 07.10.2017.
Date of judgment : 07.10.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State
Accused is present on bail with his counsel, Mr. Brijnallabh
Tiwari.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Prosecutrix along with her parents is present.
Ms. Sharda, Support Person from DLSA is also present.
IO SI Sarita is also present.
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New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014.
Police Station : Khyala
Under sections 363/366/376 IPC of the Indian Penal Code
and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 1 of 10 ::-
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JUDGMENT
1. Mr.Sanjay Kumar, the accused, has been charge sheeted by Police Station Khyala for the offences under sections 363/366/376 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 5(i)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Sanjay Kumar has been prosecuted on the allegations that on 21.03.2014 at about 05:30 pm, within the jurisdiction of Police Station Khyala, he had kidnapped the prosecutrix and on the said date, time and place, he had committed penetrative sexual assault on the prosecutrix; and committed rape upon her. 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.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 24.07.2013.
4. After hearing arguments, charge for offences under sections 363/366 of IPC, under section 6 of the POCSO Act and in the alternative under section 376 of the IPC was framed against New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 2 of 10 ::-
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accused Mr.Sanjay Kumar vide order dated 04.03.2015 by the learned predecessor of this Court, to which the accused had pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined as many as three (03) witnesses i.e. the prosecutrix Ms.X as PW1, her mother Ms.Y, as PW2 and Mr.Z, father of the prosecutrix, as PW3. Fictitious identities of Ms.X, Ms.Y and Mr.Z are given to the prosecutrix and her parents respectively, in order to protect the identity of the prosecutrix.
6. The evidence of the prosecutrix Ms.X as PW1 has been recorded in the Vulnerable Witness Room in camera. Her mother as PW2 and her father Mr.Z as PW3 have also been examined in camera.
7. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix. Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 3 of 10 ::-
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8. Preliminary inquiries were made from the prosecutrix and it appeared that she is well oriented and is capable of giving rational answers to questions. She understood the sanctity of oath. The prosecutrix appeared to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
9. The prosecutrix Ms.X as PW1 had seen accused Mr.Sanjay Kumar, who was sitting in a separate enclosure, through the one way visibility window on her screen. She has correctly identified the accused Mr.Sanjay Kumar and deposed that he had not taken her anywhere. She has deposed that "He counselled me to return home. This continued till about 7:30 pm. He told me that in case I did not still want to return home, I should wait in his house till I was not angry and then he would take me to my residence. We went to his tenanted room at Mangolpuri, where, I stayed for about one month. Nothing happened between us during my stay. Accused did not establish any physical relations with me at any point of time".
10.As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her at length but nothing material for the prosecution has come forth. She has not been cross-examined on behalf of accused despite the opportunity being given.
New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 4 of 10 ::-
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11.The mother of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused in respect of the prosecutrix. She had only handed over the birth certificate of the prosecutrix to the police.
12.Mr.Z, father of the prosecutrix, (PW3) has also not deposed anything incriminating against the accused. He had only lodged the missing report of the prosecutrix vide DD no. 50-A (Ex.PW3/A) and after her recovery, obtained her custody. He had seen the accused for the first time in the Court. On the earlier dates when he had come for his evidence. As he was hostile, he has been cross- examined by the Addl. PP for the State but nothing material for the prosecution has come forth.
13.All the prosecution witnesses PWs 01 to 03 have not deposed an iota of evidence of accused Mr.Sanjay Kumar that he committed the offences of kidnapping with the intention to compel her to marry against her well or to force to have illicit intercourse, penetrative sexual assault and rape upon the prosecutrix.
14.In the circumstances, as the prosecutrix Ms.X (PW1) and her parents (PW2 and PW3), who are the star witnesses, have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating against him, the prosecution evidence is New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 5 of 10 ::-
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closed, declining the request of the Additional Public Prosecutor for leading further evidence, 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 (PW1) and her parents (PW2 and PW3), who are the star witnesses and the most material witnesses, have not supported the prosecution case and are hostile.
15.The statement under section 313 of the Cr.P.C of the accused Mr.Sanjay Kumar is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) and her parents (PW2 and PW3), who are the star witnesses, are hostile and nothing material has come forth for the prosecution in their cross examination by the Additional Public Prosecutor for the State.
16.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.
17.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her parents (PW2 and PW3), 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 New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 6 of 10 ::-
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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. The prosecutrix, in fact, has deposed that the accused he has not committed any offence against her. 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."
18.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
19.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.
New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 7 of 10 ::-
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20.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).
21.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.Sanjay Kumar. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22.Consequently, no inference can be drawn that the accused Mr. Sanjay Kumar is guilty of the charged offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and in the alternative under section 376 of the IPC.
23.There is no material on record to show that on 21.03.2014 at about 05:30 pm, within the jurisdiction of Police Station Khyala, accused Sanjay Kumar had kidnapped the prosecutrix and on the said date, New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 8 of 10 ::-
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time and place, he had committed penetrative sexual assault on the prosecutrix; and committed rape upon her.
24.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.Sanjay Kumar for the offences of kidnapping with the intention to compel her to marry against her well or to force to have illicit intercourse, penetrative sexual assault and rape upon the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Mr.Sanjay Kumar has committed any of the charged offences.
25.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.Sanjay Kumar for the offences under sections Sec. 363/366 of the IPC as well as section 6 of the POCSO Act. The prosecution has also failed to bring home the alternative charge for the offence under section 376 of the IPC.
26.Consequently, accused Mr.Sanjay Kumar is hereby acquitted of the charges for the offences of offences of kidnapping with the intention to compel her to marry against her well or to force to have illicit intercourse, penetrative sexual assault and New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 9 of 10 ::-
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rape upon the prosecutrix punishable under sections 363/366 of the IPC and under section 6 of the POCSO Act. He is also acquitted of the alternate charge under section 376 of the IPC.
COMPLAINCE OF SECTION 437-A OF THE CR.P.C. AND OTHER FORMALITIES
27.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
28.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
29.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of October, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
New Sessions Case Number : 56810/2016.
Old Sessions Case Number : 114/2014.
First Information Report Number : 212/2014. Police Station : Khyala Under sections 363/366/376 IPC of the Indian Penal Code and section 5(i)/6 of the POCSO Act.
State versus Mr.Sanjay Kumar -:: Page 10 of 10 ::-