Delhi District Court
State vs . Anil Kumar @ Annu on 26 April, 2017
State Vs. Anil Kumar @ Annu
IN THE COURT OF SHRI PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE01/WEST,
SPECIAL COURT UNDER POCSO ACT,
TIS HAZARI COURTS, DELHI
SC No.: 292/16
New No.: 58254/16
FIR No.: 61/2016
PS : Khyala
U/S : 313/376 of IPC and Section 6 of the POCSO Act.
The State
(Govt. of NCT of Delhi)
Vs.
Anil Kumar @ Annu
S/o Sunil Kumar
R/o P175, Raghubir Nagar, New Delhi
Date of Institution : 06.12.2016
Date of arguments: 26.04.2017
Date of judgment : 26.04.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered in the Police Station Khyala u/s 376 of IPC on the complaint of prosecutrix Ms. 'K' (presumed name of the prosecutrix), wherein, she has stated that she is 19 years of age and she studies in 2nd year and she lives on the address, as mentioned in her complaint Ex.PW1/A filed on 28.01.2016 and accused Anil @ Annu S/o Sh. Sunil resides at P175, Raghubir Nagar, Delhi and she is having friendship FIR No.: 61/2016 PS : Khyala Page No. 1/13 State Vs. Anil Kumar @ Annu with accused since the year 2013. she alleged that this accused had developed physical relation with her many time on the promise of marriage with her and she has further alleged that this accused had developed physical relation with her in his house for the first time in june 2013 and now the accused is going to marry with some other girl and accused has refused to marry with the prosecutrix and she has prayed for taking legal action against the accused. So that, his marriage may be stopped with another girl. She has also alleged that this accused had lastly developed physical relation with her on dated 22.01.2016. On such complaint of the prosecutrix, the FIR was registered and accused was arrested on dated 26.10.2016 and since then, he is behind bars. Her statement u/s 164 of Cr.PC was recorded by the Ld. Metropolitan Magistrate, wherein, she has also alleged that this accused had also made her pregnant twice and then he had forcibly administered her some tablets and got the abortion done.
2 On completion of the investigation, the chargesheet was filed U/s 376 & 313 of IPC and Sec. 6 of POCSO Act. Copy of charge sheet and CD were supplied to the accused. On finding of the prima facie case, the charges U/s 376/313 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial.
3 In order to prove its case, prosecution has examined prosecutrix as PW1 today.
FIR No.: 61/2016 PS : Khyala Page No. 2/134. The Prosecutrix Ms. "K"(presumed name of the prosecutrix) has been examined as Pw1, who has deposed that she 21 years of age, she is a student of B.A. Final Year and she has correctly identified to the accused as Anil and deposed that this accused was living in her neighbourhood, she knows to accused for the last about 2 or 2 ½ years and when she was asked as to why did she file the complaint in the police station against this accused she has replied that "PATA NAHI KYUN DI THI. HUM ACHCHHE FRIENDS BANE THE. 06 MAHINE TAK HAMARI ACHCHHI BAAT CHEET CHALI. ANIL NE BATAYA THA KI AB ISKI SHAADI HAI, KYUNKI ISKE GHARWALO NE EK LADKI DEKHI THI JISKA NAAM PHOOL HAI. KYUNKI YE MERE SE DOOR JAA RAHA THA ISLIYE DUKH SA HO RAHA THA TO MENE COMPLAINT KAR DI. She has correctly identified her signature on her complaint Ex.PW1/A. When, this prosecutrix was asked as to whether sexual relations were developed between her and accused, she has denied the same. Since, this prosecutrix has resiled from her complaint & her statement recorded U/S 164 of Cr.PC & did not support the case of the prosecution, so, the Ld. APP for the State has sought permission to crossexamine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her cross examination by the Ld. APP for the State, she has denied that in the year 2013, the physical relations were developed with her by this accused, so many times on the pretext of FIR No.: 61/2016 PS : Khyala Page No. 3/13 State Vs. Anil Kumar @ Annu solemnizing of marriage with her. She has further denied that this accused developed sexual relation with her for the first time in June 2013 at his home i.e. P175, Raghubir Nagar, Delhi. She has denied that lastly this accused had developed sexual relation with her on 22.01.2016. she has admitted that lady ld. MM had recorded her statement Ex.Pw1/B and she has correctly identified her signatures thereon at point A, B, C & D. she has denied that she had told to Ld. Metropolitan Magistrate that accused had developed physical relation with her in his home. She has also denied that she got pregnant twice or that accused had administered pills to her forcibly or that miscarriage was got done. She has denied that she had told to Ld. Metropolitan magistrate that accused was developing sexual relations with her since 2013. She has also denied that she had told to Ld. Metropolitan magistrate that this accused had developed sexual relation with her for the last time forcibly on 22.01.2016 or that she got scratch injury on her neck. She has admitted that her date of birth is 18.02.1997 and she has denied that she was taken by accused to MD International Hotel, Paharganj or that accused had developed physical relation with her in the said hotel. She has also denied that she has been won over by accused or that she has deposed falsely. This prosecutrix was also cross examined by the counsel for the accused and during her cross examination, she has admitted it to be correct that she was tutored by the police personnels prior to recording of her statement U/s 164 of Cr.PC by the ld. Metropolitan Magistrate. She has also admitted it to be correct that she was also tutored prior to the filing of the complaint FIR No.: 61/2016 PS : Khyala Page No. 4/13 State Vs. Anil Kumar @ Annu Ex.Pw1/A by the police personnels and on the tutoring of those police personnels, she had lodged the FIR. She has also admitted it to be correct that she has never been raped by the accused. She has further admitted it to be correct that she has never conceived and she has also admitted it to be correct that accused has never administered any medicine or pills to her for miscarriage. She has further admitted it to be correct that she had filed the complaint Ex.Pw1/A in view of some misunderstanding with accused 5 I have heard the Ld. Counsels for the parties.
6 After conclusion of cross examination of this prosecutrix, Ld. APP for the State has submitted that the matter may be adjourned for remaining evidence of the prosecution, whereas, Ld. Counsel for accused has vehemently opposed the submission of Ld. APP for the State and submitted that since, the prosecutrix, who is the complainant in present case, has failed to support the case of the prosecution, so, it will be futile to adjourn the matter for remaining evidence of the prosecution and prayed for closing the evidence of the prosecution and prayed for acquitting to the accused.
7 Since, the perusal of the record shows that, in the case in hand, FIR was registered on the complaint of prosecutrix Ms. 'K' U/s 376 of IPC, wherein, she has stated that she lives on the address, as mentioned in her complaint Ex.PW1/A filed on 28.01.2016. She is 19 FIR No.: 61/2016 PS : Khyala Page No. 5/13 State Vs. Anil Kumar @ Annu years of age and she studies in 2nd year and accused Anil @ Annu S/o Sh. Sunil resides at P175, Raghubir Nagar, Delhi and she is having friendship with accused since the year 2013. she alleged that this accused had developed physical relation with her many times on the promise of marriage with her and she has further alleged that this accused had developed physical relation with her in his house for the first time in june 2013 and now the accused was going to marry with some other girl and accused has refused to marry with the prosecutrix and she has prayed for taking legal action against him. So, that his marriage may be stopped with another girl. She has also alleged that this accused had lastly developed physical relation with her on dated 22.01.2016. whereas, the prosecutrs has been examined as PW1 and she failed to support the case of the prosecution and she has resiled from her complaint and her previous statement and in view of the same, the ld. APP for the State has sought permission to crossexamine this prosecutrix and she was declared hostile and Ld. APP for the state was allowed to cross examine this witness. But, despite of her cross examination, she failed to support the case of the prosecution and this witness was also crossexamined by the counsel for the accused and during her cross examination, she has admitted that she was never raped by this accused. She has never conceived and also admitted it to be correct that this accused had never administered her any medicine or pills for miscarriage and the complaint Ex.PW1/A was filed by her in view of some misunderstanding with the accused.
FIR No.: 61/2016 PS : Khyala Page No. 6/13State Vs. Anil Kumar @ Annu 8 So, in the given circumstances, the testimonies of PW1 is found to be inconsistent & contradictory on the material points and the testimony of the prosecutrix is contradictory to her complaint Ex.PW1/A and her statement recorded u/s 164 of Cr.PC, which is Ex.PW1/B. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if, remaining witnesses of the prosecution are allowed to be examined.
9 Since, nothing incriminating evidence has come on the record against the accused Anil Kumar @ Annu, therefore, the statement of the accused U/S 313 Cr.PC is dispensed with.
10 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special FIR No.: 61/2016 PS : Khyala Page No. 7/13 State Vs. Anil Kumar @ Annu circumstances, no conviction can be based on the evidence of such witness."
11 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the FIR No.: 61/2016 PS : Khyala Page No. 8/13 State Vs. Anil Kumar @ Annu sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
12 Since, in case in hand, the FIR was registered on the complaint Ex.PW1/A of the prosecutrix Ms 'K' u/s 376 of IPC, wherein, FIR No.: 61/2016 PS : Khyala Page No. 9/13 State Vs. Anil Kumar @ Annu she has stated that she lives on the address, as mentioned in her complaint Ex.PW1/A filed on 28.01.2016. She is 19 years of age and she studies in 2nd year and accused Anil @ Annu S/o Sh. Sunil R/o. P175, Raghubir Nagar, Delhi and she is having friendship with accused since the year 2013. she alleged that this accused had developed physical relations with her many times on the promise of marriage with her and she has further alleged that this accused had developed physical relation with her in his house for the first time in june 2013 and now the accused is going to marry with some other girl and accused has refused to marry with the prosecutrix and she has prayed for taking legal action so that his marriage may be stopped with another girl. She has also alleged that lastly this accused had developed physical relation with her on dated 22.01.2016. Whereas, Prosecutrix Ms. "K"(presumed name of the prosecutrix) has been examined as Pw1, who has deposed that she is 21 years of age, she is a student of B.A. Final Year. She knows to accused for the last about 2 or 2 ½ years and when she was asked as to why did she file the complaint in the police station against this accused she has replied that "PATA NAHI KYUN DI THI. HUM ACHCHHE FRIENDS BANE THE. 06 MAHINE TAK HAMARI ACHCHHI BAAT CHEET CHALI. ANIL NE BATAYA THA KI AB ISKI SHAADI HAI, KYUNKI ISKE GHARWALO NE EK LADKI DEKHI THI JISKA NAAM PHOOL HAI. KYUNKI YE MERE SE DOOR JAA RAHA THA ISLIYE DUKH SA HO RAHA THA TO MENE COMPLAINT KAR DI and when this prosecutrix was asked as to whether sexual relations were developed between her and accused, she has denied the same. Since, this FIR No.: 61/2016 PS : Khyala Page No. 10/13 State Vs. Anil Kumar @ Annu prosecutrix did not support the case of the prosecution, so, the Ld. APP for the State sought permission to crossexamine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her cross examination by the Ld. APP for the State, she has denied that in the year 2013, the physical relations were developed with her by this accused. So many times on the pretext of solemnizing of marriage with her. She has further denied that this accused developed sexual relation with her for the first time in June 2013 in his home i.e. P175, Raghubir Nagar, Delhi. She has denied that this accused had developed sexual relation for the last time on 22.01.2016. She has admitted that lady ld. MM had recorded her statement Ex.Pw1/B and she has correctly identified her signatures thereon at point A, B, C & D. she has denied that she had told to Ld. Metropolitan Magistrate that accused developed physical relations with her in his home. She has also denied that she became pregnant twice or that accused had administered pills to her forcibly or that miscarriage was got done. She has denied that she had told Ld. Metropolitan magistrate that accused was developing sexual relations with her since 2013. She has also denied that she had told Ld. Metropolitan magistrate that this accused had forcibly developed sexual relation with her lastly on dated 22.01.2016 or that she got scratch injury on her neck. She has admitted that her date of birth is 18.02.1997 and she has denied that she was taken by accused to MD International Hotel, Paharganj or that accused had developed physical relation with her in the said hotel. She has also denied that she has been won over FIR No.: 61/2016 PS : Khyala Page No. 11/13 State Vs. Anil Kumar @ Annu by accused or that she has deposed falsely. This prosecutrix was also cross examined by the counsel for the accused and during her cross examination, she has admitted it to be correct that she was tutored by the police personnels prior to recording of her statement U/s 164 of Cr.PC by the ld. Metropolitan Magistrate. She has also admitted it to be correct that she was also tutored by the police personnels, prior to the filing of the complaint Ex.Pw1/A and on the tutoring of those police personnels, she had lodged the FIR. She has also admitted it to be correct that she has never been raped by the accused. She has further admitted it to be correct that she has never conceived and she has also admitted it to be correct that accused has never administered any medicine or pills to her for any miscarriage. She has further admitted it to be correct that she had filed the complaint Ex.Pw1/A in view of some misunderstanding with accused.
13. Since the statement of the prosecutrix recorded today is found to be inconsistent & contradictory to the contents of her complaint Ex.PW1/A & her statement Ex.PW1/B recorded U/S 164 of Cr.PC. So, taking into consideration the material inconsistencies & contradictions in the testimony of prosecutrix who has been examined as PW1 on the material points, this court is inclined to hold that the inconsistent testimony of PW1 (prosecutrix), suspicious, unreliable & untrustworthy, so, the same does not inspire any confidence, and since, the charges against this accused were framed u/s 376/313 of IPC & Sec.6 of POCSO FIR No.: 61/2016 PS : Khyala Page No. 12/13 State Vs. Anil Kumar @ Annu Act, and since, the prosecutrix has admitted that she has never been raped by this accused and she has never concieved and also admitted that accused had never administered any medicine or pills for miscarriage. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 376/313 of IPC & Sec.6 of POCSO Act beyond reasonable doubt. Accordingly, accused Anil Kumar @ Annu is acquitted of the charges framed against him. The accused Anil Kumar @ Annu is ordered to be released on furnishing of the bail bond in the sum of Rs.10,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 26.04.2017 Additional Sessions Judge01(West)
Special Court Under POCSO Act /
26.04.2017
FIR No.: 61/2016 PS : Khyala Page No. 13/13