Delhi District Court
State vs Sayyed Safaq on 21 July, 2017
IN THE COURT OF SH. PARVEEN SINGH
JUDGE SPL. COURT (POCSO Act)/ADDL. SESSIONS JUDGE- 01
(NORTHEAST) KARKARDOOMA COURTS : DELHI
SC No.24/2016
FIR No. 413/2014
PS Sonia Vihar
Under Section 354D/506(II)/509 IPC
& 12 POCSO Act
State
Versus
1.Sayyed Safaq S/o Sayyed Gyassudin, R/o H. No. E3/614, G.N. 16, 4th Pushta, Sonia Vihar, Delhi.
2. Shamshad Jahan W/o Sayyed Gyassudin, R/o H. No. E3/614, G.N. 16, 4th Pushta, Sonia Vihar, Delhi. ......Accused.
Date of institution of case : 09.02.2016.
Date on which judgment reserved : 18.07.2017.
Date of judgment pronounced : 21.07.2017.
(Section 437A Cr.P.C stands complied with)
J U D G M E N T :
In brief, facts of this case are that on 02.09.2014, complainant (the victim), daughter of E. Singh, aged around 17 years went to PS Sonia Page 1 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 Vihar. She met SI Arvind Kumar and lodged a report, addressed to the SHO, that a quarrel had taken place between her and Mohd. Safaq and he had been jailed. But, since he had been bailed out, he had been molesting her. Whenever she went to school and returned from school, he would follow her and threaten her that he would kill her. When she would stand outside her house, sometimes he would blow whistles and sometimes throw gitti upon her. He daily brought a new boy in front of her house and showed her; his mother had been abusing her and also said that her son would kidnap her and kill her.
2. On the basis of above complaint, the present case was registered for the offences punishable under Sections 354A/354D/506/34 IPC and Section 10 of the POCSO Act. The statement of the victim under Section 164 CrPC was recorded. The accused were arrested. After completion of investigation, chargesheet was filed against accused Sayyed Safaq and Smt. Shamshad Jahan.
3. Thereafter, on 06.04.2016, charge u/s 509 IPC and 506 (II) IPC was framed against accused Shamshad Jahan and charge for the offences punishable under Section 12 POCSO Act; alternatively under Section 354D IPC and under Section 506(II) IPC was framed against accused Sayyed Shafaq. The accused pleaded not guilty to the charges and claimed trial.
4. The prosecution, to prove its case, has examined 08 witnesses.
5. PW1 is Sh. Kishore Kumar, Subregistrar (Birth & Death), NDMC, City Zone, New Delhi. He had brought the summoned record i.e. Page 2 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 birth certificate of the victim. As per the record, the victim was born on 31.08.1996 and the date of birth was recorded in their record vide Sr. No. 3279. He proved the copy of birth registration record of the victim as Ex.PW1/A and copy of the birth certificate as Ex.PW1/B.
6. PW2 is HC Jasvir Singh. He deposed that on 02.09.2014, he was posted with PS Sonia Vihar as Duty Officer. At about 04.15pm, he received a rukka from SI Arvind. On the basis of rukka, he got FIR No.413/2014 registered through computer operator. He proved the copy of the FIR as Ex.PW2/A and the endorsement made by him on the rukka as Ex.PW2/B.
7. PW3 is HC Banwari Lal. He deposed that on 20.05.2015, he was posted with PS Sonia Vihar and joined the investigation with IO/SI Arvind Kumar and lady Ct. Sumitra. They reached Karkardooma Courts at around 4.30pm. There they met accused Sayyed Safaq and his mother accused Shamshad Jahan. Accused Sayyed Safaq was arrested by the IO. He proved the arrest memo and personal search memo of accused Sayyed Safaq as Ex.PW3/A and Ex.PW/B respectively.
8. PW4 is Victim. Her testimony would be considered at a later stage as and when required.
9. PW5 is SI Arvind Kumar. He was the initial IO of this case. He deposed about having been given the complaint to him by the victim; issuance of NBWs against the accused and issuance of process under Section 82 CrPC against them and their arrest amongst other facts. His testimony would be considered at a later stage as and when required.
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PS Sonia Vihar Judge Special Court (POCSO Act),
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10. PW6 SI Bhim Sen Kaushik , was another IO of this case. He had searched for the accused; recorded supplementary statement of the victim. He also recorded the statement of the mother of victim; got the statement of the victim recorded under Section 164 CrPC; collected birth certificate of the victim and discharge slip of her mother from the hospital where the victim had born and issuance of NBWs against the accused. Thereafter, he proceeded on a training and further investigation was against transferred to SI Arvind. His detailed testimony would be considered as and when required.
11. PW7 SI Devender Kumar Tyagi was the final IO of this case. He had filed the chargesheet before the court against the accused.
12. PW8 is Smt. S, mother of the victim. Her testimony shall be considered at a later stage as and when required.
13. Thereafter, on 18.05.2017, the statements of the two accused were recorded under Section 313 Cr.P.C. Both the accused chose not to lead evidence in their defence.
14. I have heard Sh. Sukhbeer Singh, Ld. Addl. PP for the State and Sh. Mohd. Hasan, Ld. Amicus Curiae for the accused and gone through the record.
15. Learned Addl. PP has contended that the victim in her testimony has clearly deposed that accused has been regularly harassing her. She has further deposed that on 02.09.2014, accused Sayyed Safaq returned after being released on bail. On the same day, Ct. Banwari came to their house to serve the summons of earlier case. At that time, accused Shamshad Page 4 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 Jahan, in presence of Ct. Banwari, uttered in loud voice that victim and her sister danced nude in the street and who would not watch them and she also addressed the victim as 'randi'. Learned Addl. PP has further contended that nothing has come out in the cross examination of the victim and therefore, the testimony of the victim is reliable and solely on the basis of testimony of victim, accused are liable to be convicted.
16. On the contrary, learned counsel for accused has contended that the accused have been falsely implicated in this case. He has further contended that earlier also the victim had lodged FIR No. 144/14 against accused Sayyad Safaq and after accused Sayyad Safaq was released on bail, the victim and her family were unhappy with his release and in order to falsely implicate the accused, present case was lodged. He has further contended that the victim has been regularly improving upon her statements and therefore, the victim is not a reliable witness. He has further contended that despite the fact that as per the allegations of the prosecution, the incident had happened in a street, no public witness was found. Even Ct. Banwari, about whom the victim has deposed in her testimony, was not examined. He has further contended that no PCR call was ever made and this shows that the allegations are an afterthought.
17. I have considered the rival submissions and perused the record very carefully.
18. Before proceeding on merits of the case, I will first deal with the charge u/s 12 POCSO Act. As per the charge, on 02.09.2014, victim was 17 years old. However, as per the testimony of PW1 and the documents Page 5 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 Ex.PW1/A and Ex.PW1/B, the date of birth of victim was 31.08.1996. Therefore, at the time of alleged incident dated 02.09.2014, the victim had attained the age of 18 years and therefore, she does not fall in the category of a child as defined under POCSO Act. I accordingly find that accused are entitled to be acquitted for the offence u/s 12 POCSO Act.
19. Coming on the merits of the case and other charges, I find that there are only two witnesses who have been examined to prove the facts, which have been alleged against the accused. These are the victim, who appeared as PW4 and her mother S who appeared as PW8.
20. PW4 victim also deposed about an incident dated 06.04.2014. However, this is is not the subject matter of the case and the present case was registered on the basis of incident dated 02.09.2014. PW4 further deposed that on 02.09.2014, accused Sayyed Safaq returned after being released on bail. Ct. Banwari had gone to their house to serve summons of earlier case. At that time, accused Shamshad Jahan pointed towards them and uttered in loud voice that she and her sister danced nude in the street and who would not watch them and also addressed her as 'randi'. Thereafter, both the accused beat her mother and father. After that, she and her mother went to the police station and gave the complaint Ex.PW4/A. She further deposed that her statement u/s 164 Cr.P.C was recorded which was Ex.PW4/B.
21. She was cross examined by learned Addl. PP. During her cross examination by learned Addl. PP, she admitted that in her complaint Ex.PW4/A, she had stated that accused Shamshad Jahan used to say "Randi Page 6 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 kahan ja rahi ho. Apne yaar se milne ja rahi hai, mera beta tujhe utha le jayega aur jaan se maar dega."
22. During her cross examination on behalf of the accused, she deposed that on that day, Ct. Banwari had come to deliver the summons at their house. She was inside her house. She came outside the house to receive the summons and while delivering the summons, Ct. Banwari started asking her about the case. While she was disclosing facts about the case, accused suddenly came there and uttered the above said words in presence of Ct. Banwari. She further deposed that at that time, she had the knowledge that in case one requires the help of police, he can call number
100. She made a call at 100 number but police did not reach the spot and advised her to reach the police station. She called the PCR from mobile phone number 9643977175 or 8287976651. Ct Banwari was present when she made the PCR call. On hearing the noise, other neighbours had gathered there. When the accused were beating her parents, Ct. Banwari advised them to keep away and he went away without intervening any further. She further deposed that accused Sayyed Safaq used to hold her hand and pull her chunni. She was confronted with her complaint Ex.PW4/A wherein it was not so recorded. She further deposed that she had not stated in her complaint Ex.PW4/A that Ct. Banwari had come to serve summons and in his presence, accused uttered bad words and beat her parents, but did not put forward any explanation. She denied that she had made statement Ex.PW4/B after consulting her mother, father and the police. She denied that she and her mother did not want the accused and their family to reside Page 7 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 in their street. She denied that she did not make any call at PCR or that Ct. Banwari was not present at the spot.
23. PW8 mother of victim deposed that about one year ago, she was running a grocery shop from her house. Victim is her eldest child. At the time of incident, victim was aged about 1718 years. Accused Sayed Safaq and his family members used to harass her victim daughter. Accused Sayed Safaq used to follow the victim and taunted her and also instigated other boys to follow her. His mother i.e. accused Shamshad Begum used to threaten the victim of being kidnapped. A quarrel took place between them on the above issues and the victim made complaint to the police.
24. She was cross examined by learned Addl. PP and she admitted that accused Shamshad Begum used to say that after kidnapping the victim she (Shamshad) would make her a prostitute. She also admitted that accused Sayed Shafaq used to whistle and also brought other boys infront of her house to show them the victim and he used to throw mud upon her daughter/ victim and both the accused used to threaten the victim to kill her. She admitted that due to lapse of time, she forgot the above facts.
25. During her cross examination on behalf of the accused, she deposed that she could not tell the date or month of the incident when accused Sayed Shafaq used to follow the victim and taunted her daughter and also instigated other boys to follow the victim, or the date when both the accused threatened the victim, or the date of quarrel. None of the neighbour or any other independent person was present at the time when quarrel had taken place on the above mentioned issues. She denied that she Page 8 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 and her family members were not happy with the accused Sayed Shafaq when he was released on bail in the earlier case and therefore, they filed present case against both the accused.
26. From the testimonies of the victim and her mother, it is to be seen that it is only the testimony of the victim which discloses of the offences for which the accused have been charged.
27. There is no disagreement with the contention of learned Addl. PP taht conviction in such cases can be based upon the sole testimony of the victim. However, this can only be done if the testimony of the victim is found to be completely reliable. In this regard, law has been laid down by hon'ble Supreme Court in In Ramdas v. State of Maharashtra, (2007) 2 SCC 170, wherein it was held as under:
23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which case shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not find her evidence to be of such quality.
28. Further in Narender Kumar v. State (NCT of Delhi) (2012) 7 SCC 171, it has been held as under:
20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitates the court for Page 9 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
29. In the light of aforesaid legal prepositions, let us test the testimony of the victim.
30. It is to be seen that the initial complaint Ex.PW4/A, on the basis of which FIR was registered, is a very general complaint without any specific allegations wherein, the victim had only stated that since the accused had been released on bail, he had been harassing her, following her and threatening her. Whenever she would be standing outside her house, he used to whistle, throw pebbles on her. He used to bring new boys to her house and show her to them. His mother always abused her and call her prostitute and would say "prostitute, where are you going. You are going to meet your paramour. My son would kidnap you and would kill you."
31. This complaint was made on 02.09.2014. Thereafter, her statement u/s 164 Cr.P.C was recorded, which is Ex.PW4/B. This statement was recorded on 20.03.2015 i.e. after a gap of five months. In this statement, she has introduced Ct. Banwari and stated that one day, when Ct. Banwari had come to her house to deliver summons, accused Shamshad Begum uttered that she (victim) and her sister danced nude on the streets and therefore, who would not watch them. She further stated that accused Sayyed Safaq had threatened to kill her brother. She further stated that accused Sayyed Safaq used to follow her. Accused Safaq would stand on his Page 10 of 13 FIR No.413/14 (Parveen Singh) PS Sonia Vihar Judge Special Court (POCSO Act), ASJ-01/N-E/KKD/21.07.17 roof, throw pebbles on her and whistle at her and also call her a prostitute.
32. Her final statement is when she appeared as a witness in the court and deposed as PW4.
33. A perusal of these three statements shows that since she lodged the complaint, there have been considerable improvements which have been made by this witness in her stand. The initial complaint was a very generalized complaint which was lacking specifics. In her statement u/s 164 Cr.P.C, she stated that the incident had happened in presence of Ct. Banwari. Therefore, there could have been a possibility of corroborating this version of the victim had Ct. Banwari been examined but it was not done despite this fact coming within the knowledge of the IO during the investigation.
34. It is also to be seen that while appearing as PW4, the victim did not leval any allegations of harassment, stalking her or outraging her modesty against Sayyad Safaq. In that testimony, the entire allegations were levelled against accused Shamshad Jahan and the only allegation against accused Sayyed Safaq was that he alongwith accused Shamshad Jahan had beaten her parents, an allegation which has come up for the first time during her testimony before the court.
35. However, mother of victim in her testimony remained completely silent about the incident dated 02.09.2014 or that on 02.09.2014, she or her husband were beaten by both the accused.
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36. Further to be noticed is, that according to the victim when the quarrel had taken place, other witnesses had gathered there. Contradicting her, her mother stated that at the time the incident had taken place, none of the neighbours or any other independent witness was present. So the mother of the victim is contradicting the victim and in fact states that neither Ct. Banwari nor any public person had gathered around whereas the victim talks about the presence of public witnesses as well as Ct. Banwari.
37. It is also to be seen that the IO of this case, during his cross examination, deposed that no eye witness or public person was found in the present case. Therefore, the IO is also taking the same stand which was taken by PW8 i.e. mother of the victim.
38. It is further to be seen that there is no record of any PCR call being made by the victim though the victim claims to have made three PCR calls earlier and a PCR call on the day of incident. It is also to be seen that victim gave very improbable explanation for PCR not responding. She deposed that she made a PCR call but police did not reach and advised her to reach the police station. PCR calls are always recorded, logged and information is sent to the concerned police station. Had there been any PCR call made by the victim, the record must have been maintained and should have been produced before the court.
39. It is further to be seen that there is a previous history of litigation/ animosity between the parties. Therefore, the motive alleged by the learned counsel for the accused cannot be outrightly brushed aside.
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40. In view of the material improvements in the statements of the victim and contradictions in her testimony, her testimony cannot be said to be of sterling quality and it would be highly unsafe to convict the accused on the sole testimony of the victim. Therefore, both the accused are entitled to benefit of doubt. Both the accused are accordingly acquitted of the charges framed against them. Their bail bonds stand cancelled. Sureties stand discharged. File be consigned to record room.
Announced in open court (Parveen Singh) today on 21.07.2017. Judge Special Court (POCSO Act) (This judgment contains 13 pages ASJ01, North East Distt., and each page bears my signatures.) Karkardooma Court, Delhi.
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