Delhi District Court
State vs . Kailash on 18 October, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Case ID No.02403R0187622014
SC No. 8866/16
FIR No. 133/14
PS : Chankaya Puri
U/sec.376/506 IPC & Sec.6 POCSO Act
In re :
STATE
Vs.
Kailash
S/o Sh. Satan Kawet
Present Address:-
D-598, Gate No.4, Jahangir Puri,
Near NDMC Block, Delhi.
Permanent Address:-
Village Chaptri, Post Nuanihar,
Distt. Dumka, PS Hansdiya,
Jharkhand. ....Accused
Date of filing of charge sheet : 06.09.2014
Date of framing of charge : 19.12.2014
Date of judgment : 18.10.2016
State Vs. Kailash
2
JUDGMENT
1 By this judgment I will dispose of case of the prosecution based on FIR NO. 133/14, P.S. Chankaya Puri.
2 The brief facts of the case as per investigation/charge sheet are that brother of the prosecutrix X/complainant reported to SHO PS Chankaya Puri that his sister i.e. prosecutrix X is missing since 16.06.2014. Later on the girl was found in INA Market, Laxmi Nagar by police officials on 18.06.2014. She was medically examined and her statement u/sec.164 Cr.P.C. was recorded. In that statement, she disclosed that accused (son of mausi of victim), original resident of Jharkhand, used to visit for work to Delhi. He used to stay at the jhuggi of victim. He had raped her 3- 4 times within a span of 5 years. Lastly, accused raped her about one year prior (one year before 2013) to the marriage of accused. The present FIR was lodged.
3 Cognizance of the offences was taken. Accused was in custody and was produced. He was provided with the copies of the charge sheet. After hearing the arguments on charge, charges under Section 376/506 IPC and under Section 6 POCSO Act were framed against the accused who pleaded not guilty and claimed trial.
State Vs. Kailash 3 4 To prove its case prosecution examined 11 witnesses.
5 PW1 Dr. O. P. Meena, Medical Hospital, RML Hospital deposed that on 18.06.2014 one patient i.e. prosecutrix X was brought to the casualty by lady Ct. Sushila. He examined the patient and found no fresh marks of external injury. The patient was referred to gynecology. He prepared MLC Ex.PW1/A. 6 PW2 HC Satish Kumar deposed that on 16.06.2014 he was posted as Duty Officer. On that day at about 10.30 p.m., he received rukka from SI Manoj Kumar. On the basis of the said rukka he lodged FIR Ex.PW2/A and issued certificate u/sec.65B IEA Ex.PW2/C. He made endorsement Ex.PW2/B on rukka.
7 PW3 brother of prosecutrix X deposed that on 16.06.2014 his sister left his house as he scolded her. He lodged missing report Ex.PW3/A with PS Chankaya Puri. After two day, victim was found in the area of Sarojini Nagar. Police arrested the accused on 09.08.2014 from Jahangir Puri. Accused was arrested in his presence vide arrest memo Ex.PW3/B. Accused was personally searched vide Ex.PW3/C. Accused pointed out the place of incident vide pointing out memo Ex.PW3/D. Site plan was prepared at the instance of witness Ex.PW3/E. 8 PW4 prosecutrix X deposed that on 16.06.2014 she State Vs. Kailash 4 was depressed and left her house without disclosing to anybody. She remained at New Delhi Railway Station for two days. After two days, she came back to INA Market, Laxmi Nagar. One police official met her. She disclosed about her residence to him. That police official took her to PS Chankaya Puri. She disclosed that accused raped her on 5-6 occasions and lastly committed rape one year before 2013, the year in which he got married. She started remaining upset and left the house and went to New Delhi Railway Station. She further stated that she refused for medical (gyne.) examination vide her statement Ex.PW4/A on Ex.PW1/A. She also proved her statement u/sec.164 Cr.P.C. as Ex.PW4/B. 9 PW5 Dr. Vijay PG Resident Department of ENT, RML Hospital deposed that on 09.08.2014 he medically examined accused vide MLC Ex.PW5/A and referred him for urology department for further examination.
10 PW6 Smt. Rekha (Teacher of the school of victim) proved the date of birth credentials of victim vide Ex.PW6/A to Ex.PW6/C. As per their record, the date of birth of victim is 12.03.2000 (Twelfth March Two Thousand).
11 PW7 Dr. Raman Tanwar, Senior Resident, Department of Urology, RML Hospital, New Delhi deposed that on 20.08.2014 he examined accused and found accused capable State Vs. Kailash 5 of performing intercourse. He proved his opinion at point B on Ex.PW5/A. 12 PW8 Wct. Sushila deposed that on 19.06.2014 she along with IO SI Manoj, victim and mother of victim came to Patiala House Court. The statement of victim was recorded by Ld. MM. Thereafter the victim was produced before CWC. CWC, Mayur Vihar, ordered to keep the prosecutrix X in Katiyani Balika Ashram, Jhandewalan till the arrest of accused.
13 PW9 HC Brij Prakash deposed that on 09.08.2014, on the instruction of WSI/IO Saroj Sharma he along with brother of the victim went to Jahangir Puri in search of accused. Accused was apprehended from H. No. D-598, Gali No. 4, Jahangir Puri, NDMC area. He took the accused and produced before IO. IO arrested him, got him personally searched and recorded his disclosure statement. Accused pointed out the place of incident.
14 PW10 Retired SI Saroj Sharma deposed that on 24.07.2014 the investigation was handed over to her. On 09.08.2014 the brother of victim came to her and informed that accused was working in Jahangir Puri and he could be get apprehended. She prepared site plan Ex.PW10/A at the instance of brother of the victim. She sent HC Brij Prakash with brother of the victim in search of accused. Accused was arrested. Accused State Vs. Kailash 6 was taken to RML Hospital and was examined vide MLC Ex.PW5/A. On 11.08.2014, an application was made for examining accused for the purposes of potency test. On 12.08.2014 victim was produced before CWC where her counseling was made. On 20.08.2014, accused was produced before Dr. RML Hospital by jail authorities and his medical examination regarding potency test was done.
On the same day, she further interrogated the victim who was staying as per the order of CWC at Katiyani Balika Ashram, Jhandewalan.
On 22.08.2014, she collected the date of birth credentials of victim from her school.
15 PW11 SI M. K. Meena deposed that on 16.06.2014 he was posted at PS Chankaya Puri as SI. Brother of victim came to police station to lodge missing report of his sister. He recorded the statement Ex.PW3/A, made endorsement Ex.PW11/A, prepared rukka and got the FIR registered.
On 17.06.2014, information was given NCRB, SCRB and Missing Cell.
On 18.06.2014, after receiving information from PS SArojini Nagar, he along with Ct. Sushila went to PS Sarojini Nagar where victim was found. Victim was taken to PS Chankaya Puri. Thereafter victim was taken to RML Hospital for her medical State Vs. Kailash 7 examination. She refused for internal examination. Victim was provided counseling. Custody of the victim was handed over to her parents.
On 19.06.2014, the statement of victim u/sec.164 Cr.P.C. was got recorded.
On 01.07.2014, after consultation with Senior Officers Sec.376 IPC was added to the case and investigation was handed over to WSI Saroj.
16 After the closure of PE, statement of accused was recorded u/sec.313 Cr.P.C. In this statement all incriminating evidence was put to the accused. He stated that he is falsely implicated in this case as he failed to returned the money which he had taken from sister of prosecutrix.
17 No DE was led.
18 I have gone through the record, evidence and submissions forwarded by Ld. APP for State and Ld. Counsel for the accused. My observations are as under:-
19 It is argued by Ld. APP for State that prosecution was able to prove on record that accused was harassing/committing penetrative sexual assault on the prosecutrix X multiple times within a span of 5 years at the residence of the victim. On the State Vs. Kailash 8 other hand, it is argued by Ld. counsel for defence that accused had taken money of Rs.5,000/- from the sister of victim, could not return and now falsely implicated in this case on behest of victim.
20 As far as this case is concerned, the charge is also framed u/sec.6 of POCSO Act. The POCSO Act came into force on 14.11.2012. All the incidents appear to have prior to this period. So, the POCSO Act is not applicable. However, considering the fact that the age of the victim was less than 18 years or 16 years, on the date of alleged offences and there was no consent and will to the sexual acts/intercourse. Sec.376 IPC is applicable.
21 As far as this case is concerned, the case of the prosecution is that accused, son of mausi of victim, is resident of Jharkhand. He used to come for work in Delhi and resides with the family of victim. During those stays, he committed penetrative sexual assault on the prosecutrix X. As per the prosecution/testimony of PW4 i.e. prosecutrix, there are three different instances of penetrative sexual assault which are as follows:-
(a) on two occasions during the day time when there was nobody present in the house.
(b) on about 5-6 occasions accused committed rape on victim during the night time.
(c) accused has last committed rape one year before 2013.
It is further the case of the prosecution that victim started remaining depressed and thus she left her home on 16.06.2014 but later on found purposeless roaming in Sarojini Nagar Market.
So, the prosecution has to prove beyond reasonable doubt all/any abovesaid three acts of penetrative sexual assault/rape done by accused on the victim.
22 Let us examine these incidents in the light of testimony of prosecutrix X. 23 As per the testimony of prosecutrix 4, she had not stated this acts of rape to anybody except for the first time to one police man named Manoj uncle in the police station. It is argued by Ld. APP for State that due to shame/fear of society the prosecutrix might have not told these facts to anybody but due to depression, she had told these facts for the first time to policeman Manoj. As far as these arguments are concerned, no doubt this is possible but here the facts as suggesting something different.
24 After disclosing the facts to policeman Manoj, she was aware that she had shared these facts/"secret" with one unknown State Vs. Kailash 10 person. However strangely, she had not disclosed these facts to the doctor who examined her vide MLC Ex.PW1/A at 2.50 p.m. on 18.06.2014 i.e. the same day on which she was found by police official Manoj Kumar at Sarojini Nagar. She also refused to undergo gyne. examination on 18.06.2014. This caused a doubt as to why she had not opted to support her claim of rape with medical examination, even if it was a delay in doing so.
In the cross-examination, she had specifically stated that "I do not remember any date of rape". Similarly, she had deposed "I had not disclosed the history to the doctor at the time of my medical examination". She further deposed that "The accused was working. He used to either come to our house on Sunday or take a leave and then come. It is correct that all the family members used to be present in the house on Sundays. (Vol). But they used to leave."
25 So, from this testimony, it appears that the accused used to visit them only on Sundays or after taking leave (however in the statement u/sec.164 Cr.P.C. she has stated that accused resides with them). As per the victim, family members were present on Sundays. The jhuggi/house of victim is of only two rooms. So, it is not possible that any incident of penetrative sexual assault/rape, which the victim stated, have taken place during day time, in the presence of other family members.
State Vs. Kailash 11 26 Similarly, as per her the accused only visits on Sunday or after taking leave. She has not stated that the accused had stayed during night in their home. So, the possibility of incidents of penetrative sexual assault/rape at night is also not possible.
27 Similarly, there is no specific date mentioned regarding the incident which took place one year prior to 2013.
28 In these circumstances, there is serious doubts in the case of the prosecution and the testimony of PW4 regarding the incidents of penetrative sexual assault/rape.
29 As far as the defence is concerned, it was the defence of the accused that he owed money to the sister of the victim, he could not return it and thus implicated in this matter.
30 From the perusal of the testimony of PW4, she had stated "the accused had taken loan of Rs.5,000/- from my elder sister about 2-3 months before the registration of FIR. The accused did not return the money". Thereafter she deposed "it is correct that accused returned Rs.5,000/- to my brother in the police station". So, according to the prosecutrix, it was the admitted case that accused owed money which was given by him to the family members of victim at police station. When this testimony is seen in the light of circumstances i.e. victim has not State Vs. Kailash 12 stated anything about sexual assault to any member of her family, to the doctor on 18.06.2014 but told for the first time to Ld. MM (on record) on 19.06.2014, the argument of Ld. counsel for accused becomes forceful that the possibility cannot be ruled out that she had been tutored in the intervening period to level charges of sexual assault on accused.
31 On account of aforesaid discussion, I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt.
32 Accused Kailash is acquitted for the offences u/sec.376 IPC, Sec.506 IPC and Sec.6 POCSO Act.
33 Bail Bond u/sec.437A Cr.P.C. furnished and accepted.
34 Copy of order be given dasti to prosecution.
35 File be consigned to the Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT) today i.e. 18.10.2016 ASJ-01/New Delhi District Patiala House Courts/New Delhi State Vs. Kailash 13 SC No. 8866/16 State Vs. Kailash FIR No. 133/14 PS : Chankaya Puri U/sec.376/506 IPC & Sec.6 POCSO Act 18.10.2016 Present: Sh. Ravindra Kumar, Ld. APP for State.
Sh. Asim Ali amicus curiae for accused.
Accused from JC.
Final arguments heard.
Bail Bond u/sec.437A Cr.P.C. furnished and accepted for six months.
Put up for order today itself.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 18.10.2016 At 3.00 p.m. Present: Sh. Ravindra Kumar, Ld. APP for State.
Sh. Asim Ali amicus curiae for accused.
Accused from JC.
Vide separate judgment announced and dictated in open court, accused Kailash is acquitted for the offences u/sec.376 IPC, Sec.506 IPC and Sec.6 POCSO Act.
Copy of order be given dasti to prosecution.
File be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 18.10.2016 State Vs. Kailash