Delhi District Court
State vs Sonu S/O Vishamber, R/O House No.22, on 7 January, 2012
1
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0745412006
Sessions Case No. 21/2011
Assigned to Sessions. 30.03.2011
Arguments heard on 17.12.2011
Date of judgment 07/01/12
FIR No. 393/2006
State Vs Sonu s/o Vishamber, r/o House No.22,
Gali No.8, Kardampuri, Delhi.
Police Station Shahdara
Under Section 354/367/506 IPC
JUDGMENT
1. Vide this judgment I shall dispose of this case in which accused Sonu has been prosecuted by Station House Officer of Police Station Shahdara vide FIR No.393/2006 dated 19.08.2006 u/s 354/506 IPC for the prosecution of accused Sonu in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with Ld. M.M. Since, this court pertains to the trial of minor victims, hence this case was sent by Ld. District JudgeVII, North East, Karkardooma Courts to this court for trial.
SC No.21/2011 State Vs. Sonu 1/14 2
2. In brief, the facts of the case are that on 19.08.2006 at 9:00 p.m. a DD No.30A Ex.PW4/A was assigned to ASI Dal Chand which was in connection of attempt to commit wrong act upon daughter of Smt. Noor Jahan at House No.22, Gali No.8, Kardam Puri, Delhi. On receipt of same DD, ASI Dal Chand along with Ct. Rajbir reached at aforesaid spot, there Smt. Noorjahan and victim, aged about 5 ½ years met them and ASI Dal Chand had recorded statement of victim in questionanswer from Ex.PW3/A and made endorsement upon the same for registration of FIR at PS. Accordingly, FIR No.393/2006 dated 19.08.2006 u/s 354/506 IPC Ex.PW3/C was registered against accused Sonu. During the course of investigation police arrested accused Sonu.
CHARGE:
3. On the basis of material available on record this court vide order dated 20.04.2011 framed a charge against accused Sonu for the offence punishable u/s 354/506 IPC to which accused did not plead guilty and claimed trial. Vide order dated 05.11.2011 an additional charge for offence u/s 367 IPC has been framed against accused Sonu to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 09 witnesses namely PW1 Km. Lado (victim), PW2 Smt. Noor Jahan, PW3 HC Rajbir, PW4 ASI Dal Chand, PW5 SC No.21/2011 State Vs. Sonu 2/14 3 HC Santosh Kumar, PW6 W/ASI Veena, PW7 Ct. Gajender, PW8 Inspector Heera Lal and PW9 Dr. Anshuja Singla.
5. PW1 Kumari Lado is a material witness being victim. This witness has been examined by this court for ascertaining her knowledge and capacity of understanding of this child witness being child witness by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same. This witness has adopted the same deposition which she had deposed before the court of Ld. MM on 25.06.2009 wherein this witness has deposed that Sonu had called her upstairs on the roof to play with him and she went upstairs, Sonu took off her kachhi and he also took off his kachhi. "SONU NE APNE SUSU KARNE WALE SE MERE SUSU KARNE WALI SE LAGA DIYA OR KASH KE BHEECH DIYA OR USNE GARAMGARAM PAANI MERI PEETH PE NIKAL DIYA". This witness has further deposed that accused had stated to her that "MUMMY KO MAT BATANA OR BATAYEE TO JAAN SE MAAR DUNGA".
6. This witness was cross examined by Ld. Defence counsel at length. In her cross examination, this witness has deposed that accused Sonu had called her upstairs on the roof to play with him and she went upstairs where accused Sonu took off her underwear and he also took off his underwear. She has further deposed that "SONU NE APNE SUSU KARNE WALE SE MERE SUSU KARNE WALI SE LAGA DIYA OR KASH KE BHEECH DIYA OR USNE GARAMGARAM PAANI MERI PEETH PE NIKAL DIYA". This witness has further deposed that accused had SC No.21/2011 State Vs. Sonu 3/14 4 stated to her that "MUMMY KO MAT BATANA OR BATAYEE TO JAAN SE MAAR DUNGA".
7. PW2 Smt. Noor Jahan, the mother of victim is a material witness being complainant. This witness has adopted the same deposition which she had deposed before the court of Ld. MM on 25.06.2009. This witness has deposed that on the day of incident she came outside of her house to search her daughter Lado but she did not meet her, she went upstairs on the roof there she saw that her daughter Lado was crying and accused Sonu was also present at the chhat (roof) and he was trying to wear his kachha. This witness has further deposed that her daughter stated to her that "SONU NE APNE SUSU KARNE WALE SE MERE SUSU KARNE WALI SE LAGA DIYA OR KASH KE BHEECH DIYA OR USNE GARAMGARAM PAANI MERI PEETH PE NIKAL DIYA". This witness had told the facts to Tai (aunty) of the accused and she assured her to take action against accused Sonu and pacified her and stated to her not to raise alarm. This witness has further stated that Lado was also injured and she was bleeding from her knee and ankle. Thereafter, this witness had informed the police.
8. This witness was cross examined at length by ld. defence counsel. In her cross examination by ld. Defence counsel, this witness had denied that Hukum Chand, Bishambhar, father of accused Sonu are the owner of house in which she is residing and he is tenant of Hukum Chand and paying Rs.500/ per month as rent in the House No.22, Gali No.8, Old Kardampuri, Delhi. This witness has further deposed SC No.21/2011 State Vs. Sonu 4/14 5 that time of incident was about 6:00 p.m. and she had called police at 100 number when accused Sonu escaped from the spot and PCR police officials had taken her, victim and elder mother of accused Sonu to hospital.
9. PW3 HC Rajbir. This witness had accompanied ASI Dal Chand to the spot and in his presence statement of victim Ex.PW3/A was recorded. This is the witness of placing of rukka Ex.PW3/B at PS Shahdara and receiving copy of FIR Ex.PW3/C and same was handed over to IO.
10.In his presence W/HC Veena had also reached at the spot and she taken the victim for her medical examination at GTB Hospital and handed over MLC of victim mark 'X' and two sealed parcels containing slides and undergarment (kachhi) along with sample seal to I.O. which were taken into possession by the I.O. vide seizure memo Ex.PW3/D. This witness was cross examined by Ld. Defence counsel at length.
11.PW4 ASI Dal Chand is a material witness being I.O. of the present case. On receipt of DD No.30A Ex.PW4/A this witness along with Ct. Rajbir reached at the spot. This witness had interrogated and recorded statement of victim Ex.PW3/A in the presence of Addl. SHO/Inspector Heera Lal and on her statement this witness had got recorded FIR No.393/2006 u/s 354/506 IPC Ex.PW3/C from police station.
12.This witness had got medically examined victim through W/ASI Veena from GTB Hospital vide MLC mark 'X' and after medical examination of victim, W/ASI Veena SC No.21/2011 State Vs. Sonu 5/14 6 had handed over two sealed parcels containing slides and undergarment (kachhi) along with sample seal which were seized vide seizure memo Ex.PW3/D.
13.This witness had inspected the place of occurrence i.e. roof of House No.22, Gali No.8, Kardampuri, Delhi and prepared site plan Ex.PW4/B at the instance of Smt. Noorjahan, mother of victim.
14.On 23.08.2009, this witness had arrested accused Sonu at the instance of secret informer from Near Shiv Mandir, Jyoti Nagar, Delhi and on pointing out of Smt. Noorjahan vide arrest memo Ex.PW4/C and his personal search was conducted vide personal search memo Ex.PW4/D.
15.This witness was cross examined by ld. defence counsel at length. In his cross examination, this witness denied that he had lifted brother of accused Sh. Raj Kumar from his house and he was confined at police station till the arrival of accused Sonu. This witness had denied that accused Sonu was produced by his family members on 23.08.2006 and he had arrested accused Sonu at police station or that his arrest papers were prepared at police station.
16.PW5 HC Santosh Kumar, is a formal witness being duty officer. This is the witness of recording of DD entry and registration of FIR. On 19.08.2006, this witness has recorded DD No.30A vide Ex.PW4/A and assigned copy of DD to ASI Dal Chand and had recorded FIR No.393/2006 u/s 354/506 IPC Ex.PW3/C on receiving the SC No.21/2011 State Vs. Sonu 6/14 7 rukka Ex.PW3/B through Ct. Rajbir Singh.
17.PW6 W/ASI Veena. This witness had also reached at the spot and she taken the victim along with her mother Smt. Noorjahan for her medical examination at GTB Hospital and handed over MLC of victim mark 'X' and two sealed parcels containing slides and undergarment (kachhi) along with sample seal to I.O. which were taken into possession by the I.O. vide seizure memo Ex.PW3/D.
18.PW7 Ct. Gajender, Accused was arrested in his presence on pointing out of secret informer by the IO from Shani Bazar Chowk, Kardampuri, Delhi. Accused Sonu was arrested vide arrest memo Ex.PW4/A and personal search memo Ex.PW4/D was prepared in his presence. This witness was cross examined by Ld. APP for the State. In his cross examination by ld. APP for the State, this witness has deposed that accused Sonu was arrested from place near Shiv Mandir, Jyoti Nagar, Kardampuri, Delhi.
19.In his cross examination this witness had deposed that PW Smt. Noorjahan had met them at Shani Bazar Chowk and he does not know at which place secret informer had met them.
20.PW8 Inspector Heera Lal. This witness on 19.08.2006 on receiving of information on wireless set regarding molestation of a minor girl, this witness reached at the spot i.e. H. No.20, Gali No.8, Kardampuri, Near Shani Bazar Chowk, Delhi where victim SC No.21/2011 State Vs. Sonu 7/14 8 and her mother were present and statement of victim was also recorded by ASI Dal Chand in his presence. This witness was cross examined by ld. defence counsel. In his cross examination, this witness has deposed that 34 public persons were present nearby PCR vehicle, he had not directed ASI Dal Chand to record statements of aforesaid public persons. This witness has further deposed that ASI Dal Chand had recorded statement victim in his presence and statement of PW Noorjahan was not recorded by the ASI Dal Chand in his presence.
21.PW9 Dr. Anshuja Singla. This witness has proved MLC of victim Lado d/o Sh. Maqbool Hassan, aged about 5 ½ years Ex.PW9/A on behalf of Dr. Monika. In her cross examination by ld. defence counsel, this witness admits that neither MLC Ex.PW9/A was prepared by Dr. Monika in her presence nor victim was examined in her presence and she has no personal knowledge about the examination of victim. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
22.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein the accused denied all the circumstances and evidence put to him and claimed to be innocent. Accused had not preferred to lead any D.E.
23.Thereafter, case was fixed for arguments.
SC No.21/2011 State Vs. Sonu 8/14 9 ARGUMENTS:
24.Ld. APP for state, Sh. Zenual Abedeen argued that the case under section 354/506 IPC was registered against accused Sonu on the statement of victim. Ld. APP for the State further argued that PW1 prosecutrix and PW2 Smt. Noorjahan are the most material witnesses. Ld. APP for the State pointed out that PW1 has supported the case of prosecution and her testimony proved the allegations leveled against accused. In her cross examination, she has deposed that "SONU NE APNE SUSU KARNE WALE SE MERE SUSU KARNE WALI SE LAGA DIYA OR KASH KE BHEECH DIYA OR USNE GARAMGARAM PAANI MERI PEETH PE NIKAL DIYA". This witness has further deposed that accused had stated to her that "MUMMY KO MAT BATANA OR BATAYEE TO JAAN SE MAAR DUNGA" This witness has correctly identified the accused in the court. PW5 HC Sanotsh Kumar is a duty officer who had registered FIR at police station. PW4 ASI Dal Chand is I.O. PW8 Inspector Heera Lal is supervising person of ASI Dal Chand. PW6 W/ASI Veena is the witness of producing victim for MLC and collection of slides and exhibits. PW7 Ct. Gajender is the witness of arrest of accused. PW1 corroborate the testimony of PW2. Ld. APP further submits that since the statement of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 354/506 IPC. Ld. APP for state further argued that statements of PW1 and PW2 have supported the case of prosecution, so these statements are sufficient to convict the accused for offence charged as prosecution has proved its case beyond reasonable doubt.
SC No.21/2011 State Vs. Sonu 9/14 10
25.On the other hand, Ld. counsel for accused argued that DD No.30A disclose the time 8:58 p.m. dated 19.08.2006 whereas statement u/s 161 Cr. P.C. of PW2 Smt. Noorjahan disclose the time about 7:30 p.m. Ld. counsel for accused has further argued that statement of victim had been recorded at police station and there is no public person is witness.
26.Ld. counsel for accused further argued that there was dispute with Hukum Chand over the payment of electricity charges with mother of victim so this false case been made against the accused.
27.Ld. counsel for accused has relied upon following citations:
i. Suraj Mal Vs. The State (Delhi Administration), AIR 1979 SC 1408, ii. State of NCT of Delhi Vs. Hazara Singh & Others, 2011 (4) JCC 2463, Iii. Randhir Singh Vs. The State, 1980 CRI. L.J. 1397, iv. Rakesh Aggarwal Vs. State (Delhi Admn.), 1995 (2) C.C. Cases 319 (HC), v. Rajat Ali Vs. The State of Assam, 1977 CRI. L.J. 508.
28.On these grounds, Ld. counsel for accused is pressing for acquittal of accused from the charges.
SC No.21/2011 State Vs. Sonu 10/14 11 PERUSAL OF RECORD/OPINION:
29.Arguments heard. Record perused. On perusal of record it is revealed that on the statement of victim Ex.PW3/A, FIR No.393/2006 dated 19.08.2006 u/s 354/506 IPC was recorded at police station Shahdara against accused Sonu. Accordingly, accused Sonu was arrested vide arrest memo Ex.PW4/C at the instance of Smt. Noorjahan, mother of victim and his personal search was conducted vide personal search memo Ex.PW4/D.
30.On perusal of record, it is further revealed that site plan of the place of incident was prepared by the Investigating Officer vide Ex.PW4/B at the instance of Smt. Noorjahan.
31.On perusal of record, it is further revealed that victim was got medically examined through W/ASI Veena and she had handed over MLC of victim mark 'X' and two sealed parcels containing slides and undergarment (kachhi) along with sample seal to I.O. which were taken into possession by the I.O. vide seizure memo Ex.PW3/D but MLC mark 'X' shows no injury mark or no seminal stain.
32.Further perusal of record shows that accused in his statement u/s 313 Cr.P.C. has deposed that he is innocent.
SC No.21/2011 State Vs. Sonu 11/14 12
33.Before reaching to any conclusion the relevant section of 354/367/506 IPC are being reproduced verbatim which are as under: Section 354 IPC "Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
Section 367 IPC Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc. Whoever kidnaps or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34.Since statement of prosecutrix and mother of prosecutrix are not corroborated with the statement of other prosecution witnesses and MLC. MLC of prosecutrix also shows no injury mark or seminal stain. Moreover there is non corroboration of SC No.21/2011 State Vs. Sonu 12/14 13 statements of I.O., in his statement I.O. has mentioned date of incident as 19.08.2006 whereas W/ASI Veena has stated that she had joined the investigation on 19/20.08.2008. She took the victim to GTB Hospital along with her mother.
35.Further, MLC of prosecutrix has mentioned date of her medical examination as 20.8.2007 whereas arrest memo of accused Sonu has been shown date 23.08.2006. Since there is non corroboration of statement of prosecutrix and her mother with MLC and other prosecution witnesses and there is no public witnesses either from the place of incident or from the place of arrest of accused. Hence, testimony of prosecutrix and her mother cannot be said to be reliable.
36. Further DD No.30A which reflects date 19.08.2006 whereas MLC of prosecutrix reflect the date 20.08.2007 which shows lot of difference between date of DD entry and medical examination of prosecutrix without any explanation. It appears that there are major contradictions between the testimonies of PWs.
37. On the point of major contradictions the Hon'ble Supreme Court of India in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' has also observed the following facts that:
"When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
38.In the lights of above considerations, this court is of the considered opinion that the SC No.21/2011 State Vs. Sonu 13/14 14 prosecution has failed to prove the charge against accused Sonu u/s 354/367/506 IPC beyond reasonable doubt as testimony of prosecutrix and her mothers are on different footings and testimony of officials witnesses and MLC of prosecutrix suggest some other dates. Accordingly, under the facts and circumstances of the case, this court of the view that case of prosecution do not inspire the confidence of this court. Accordingly, this court hereby acquit the accused Sonu from charges u/s 354/367/506 IPC by giving him benefit of doubt.
39.In terms of section 437 A Cr. P.C. and directions of Hon'ble High Court of Delhi accused Sonu is directed to execute bail bond in sum of Rs.10,000/ with one surety in the like amount for the period of six months. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 07.01.2012 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.21/2011 State Vs. Sonu 14/14