Delhi District Court
Cis Sessions Case No. 7930/16 "State vs Gaurav Shrivastav" Page 1 Of 23 on 18 December, 2017
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SESSIONS JUDGE01, SPECIAL COURT
(POCSO), SOUTH, NEW DELHI
CIS Sessions Case No.7930/16
FIR No. 1484/16
Police Station: Mehrauli
In the matter of:
State
VERSUS
Gaurav Shrivastav
S/o Sh. Ram Nath Shrivastav
R/o Khasra No. 1667, Ward No. 2, Gali No. 7,
Garhwal Colony, Mehrauli, New Delhi
............ Accused
Date of Institution : 03.11.2016
Date of Reserving judgment : Not reserved
Date of pronouncement : 18.12.2017
JUDGMENT
1. In the present case, accused Gaurav Shrivastav S/o Sh. Ram Nath Shrivastav has been charged and is facing trial for CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 1 of 23 the commission of offences punishable under sections 376 (2) and 506 of Indian Penal Code (in short "IPC") and section 6 and 10 of Protection of Children from Sexual Offences Act (in short "POCSO Act"), 2012 on the allegations that he had been committing rape and aggravated penetrative sexual assault upon his minor daughter, namely, 'U' (real name withheld in order to conceal her identity), (hereinafter referred to as 'victim/prosecutrix') repeatedly since the year 2010 when his daughter was 13 years old till she attained the age of 19 years. There are also allegations against the accused that he had been committing acts of aggravated sexual assault against his minor daughter 'U' (the victim) with sexual intent repeatedly since when the victim was 78 years of age till her attaining the age of 13 years and he also criminally intimidated her by threatening to kill her family members and to leave her mother.
2. Brief facts of the case as mentioned in the chargesheet are that on receipt of DD No. 59A dated 13.08.2016 at Police Station Mehrauli, W/SI Suman along with L/Ct. Rajbala went to the spot, CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 2 of 23 where the victim along with her brother met them. She told that her father has been making physical relation with her forcibly after threatening her since a very long time. The victim thereafter was taken to the hospital, where she was medically examined. Though no exhibits were taken by the doctor. On 14.08.2016, the victim came to the police station and gave a written complaint stating therein that, "She is residing along with her parents and is having two brothers and two sisters. She is the eldest among the sisters. Her father had got solemnized second marriage after leaving her mother and started living separately from them and when she was 78 years old, her father again started living with them and since then her father started molesting her and when she attained the age of 13 years, her father had forcibly made physical relations with her due to which she also became pregnant and her child was got aborted. When her mother came to know about the physical relations having been made by her father, a quarrel took place between them but her mother out of shame and fear did not tell the said fact to anyone. Thereafter, she resided along with her mother in the village and after some time she CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 3 of 23 along with her younger sister 'S' age about 14 years came to Delhi where her father started making physical relation with her forcibly. Her father had also made physical relation with her younger sister 'S' and he used to threaten to kill them and to leave their mother". The victim has further alleged in her complaint that, "Her father used to make physical relation with her due to which she again became pregnant and her father gave her medicine to abort the child which she had taken. She had not told about her second pregnancy to her mother as her father threatened to kill her. Her father had made physical relations with her lastly on 15.07.2016". The victim has further alleged that, "On 11.08.2016, it was her birthday and there was pleasure environment in the house but her father was depressed. When she asked her father as to why he was sitting quietly, he stated that he wanted to make physical relation with her, on which she for the last time had made understand her father but he did not mend his way. Thereafter, she told all the facts to her younger brother. Earlier she had not told about the acts of his father to her younger brother as her father had threatened her not to disclose the acts to anyone. Her CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 4 of 23 younger brother told the entire facts to their elder brother and thereafter, they called the police at 100 number. The victim has stated that her father has made physical relations with her and her sisters forcibly and hence legal action may be taken against him".
3. On the aforesaid complaint of the victim, the FIR in question was registered on 14.08.2016 u/s 376/506 of IPC and section 6 of POCSO Act and the investigation in the case was commenced.
4. During investigation, accused was interrogated and arrested in the present case. Medical examination of the accused was got conducted. Statement of the witnesses including the victim u/s 161 Cr.P.C. were recorded. Statement of the victim u/s 164 Cr.P.C. was also got recorded. During further investigation, age documents of the victim were collected from the school according to which the victim was 1213 years old at the time of commission of offence.
5. After completion of investigation, on the basis of the statement of the witnesses and documents collected, challan was prepared under sections 376/506 of IPC and section 6 and 10 of POCSO Act and put up before the court on 03.11.2016 for trial. CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 5 of 23
6. Charge for the commission of offences punishable under section 376 (2) and 506 of IPC and section 6 and 10 of POCSO Act, 2012, was framed against the accused vide order dated 22.03.2017, to which, the accused pleaded not guilty and claimed trial, and the case was proceeded for prosecution evidence.
7. The Prosecution, out of 14 witnesses cited in the list of witnesses, has examined 4 witnesses so far in order to prove its case including the victim/prosecutrix as PW1.
8. It is pertinent to mention here that during course of proceedings, one of the prosecution witness namely 'D' (the brother of the victim) was dropped from the list of witnesses on the statement of the Ld. Prosecutor as he submitted that PW2 and PW3 have already been examined on the same facts.
9. Ld. Defence Counsel has submitted that PW1 the prosecutrix/victim 'U' who is the star and material witness of the prosecution and on whose complaint the present FIR was registered against the accused has not supported the case of the prosecution. He further submitted that other family members of the victim have also CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 6 of 23 been examined by the prosecution and they all have not supported the case of the prosecution. He has further submitted that no other public witness remains to be examined and since from the testimonies of the victim and other material witnesses, no incriminating evidence as charged against the accused has come on record, therefore, to save the precious time and resources of the court, the further proceedings in the present case may be stopped, and the accused may be acquitted of the offences charged against him.
10. On the other hand, Ld. Special Public Prosecutor has opposed the submissions made by the Ld. Defence Counsel.
11. I have considered the submissions made on behalf of the parties and have gone through the record of the case.
12. The present case FIR was registered on the complaint of the victim who in her complaint has alleged that the accused who is her father used to molest her since she was 78 years old till the age of 13 years and thereafter she was subjected to rape by the accused many times. In her statement recorded u/s 164 Cr.P.C, the victim has re iterated the aforesaid allegations. However, the victim when appeared CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 7 of 23 in the witness box as PW1, she has changed her version. It is, therefore, pertinent to evaluate the testimony of PW1 (the victim/ prosecutrix) who is the main and crucial witness of the prosecution, to decide the fate of the case.
13. PW1 the victim has deposed in her examinationin chief that she along with her parents and two brothers and two sisters was residing in Mehrauli. Her father had left the house and married with some other lady. Her father i.e. accused used to come to their house off and on and whenever he used to come, a quarrel used to take place between her mother and accused on the issue of second marriage as he did not use to give money for household expenses. The quarrel between her mother and accused reached to such an extent that even the neigbhourers became aware of the same. PW1 the victim has further deposed that her neighbourers told that her family member should do something to teach a lesson to the accused to mend his ways. She has further deposed that her neighbourers got prepared a complaint from her and informed the police. Police came at their house and took her to the hospital and thereafter she was taken to the CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 8 of 23 police station on 14.08.2016 by the neigbhourers and she handed over her written complaint to the police. She has further deposed that in fact, no such incident as mentioned in her complaint had happened with her and she had written the complaint on the advise of neighbourers so that accused should not quarrel with them. She has admitted the complaint Ex. PW1/A made to the police and her statement u/s 164 Cr.P.C. Ex. PW1/B made to the Magistrate.
14. During testimony of PW1 the victim, permission was sought by Ld. Prosecutor to crossexamine her on the ground that she was resiling from her previous statement. Permission was granted and in her crossexamination by Ld. Prosecutor, she has denied the suggestion that on her birthday i.e. on 11.08.2016, there was happy moment in her house but her father i.e. accused was depressed and when she asked him that why he was silent to which he told her that he wanted to have physical relation with her and at that time he made him to understand last time but he did not relent and then she had narrated the entire incident caused by accused to her younger brother. She further denied the suggestion that prior to that, she had not CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 9 of 23 disclosed anything to him against the accused because he had threatened her to kill. She further denied the suggestion that her younger brother had disclosed about the entire incident to her elder brother or that thereafter they had made a 100 number call to the police or that when police came to their house, they had told the police that her father Gaurav Srivastav had forcibly established physical relation with her and with her younger sisters. She further denied the suggestion that she was taken by the police to the hospital for her medical examination and further that after medical examination, she had reached the police station where she had voluntarily made a written complaint against the accused because her father had committed rape with her.
15. PW1 the victim further denied the suggestion that when she was 78 years old, her father had again started living with them or that since then, he had started molesting her or that when she attained the age of 13 years, her father i.e. accused made forcible physical relation with her or that accused used to make physical relations with her once a week or that when she became pregnant he got her CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 10 of 23 pregnancy terminated at village Fazil Nagar. She further denied the suggestion that after that her mother came to know about the physical relation or that on this issue, there was a fight between her mother and accused. She further denied the suggestion that her mother did not disclose anything to anyone due to fear and shame. She further denied the suggestion that when she returned to Delhi along with her mother and younger sister, accused again made physical relations with her and her younger sister 'S' or that she had again become pregnant and the accused bought some medicine which she consumed. She further denied the suggestion that she did not disclose about the pregnancy to her mother because accused had threatened her to kill. She also denied the suggestion that accused made lastly physical relations on 15.07.2016. She further denied the suggestion that she had stated the aforesaid facts in her complaint Ex. PW1/A because accused had done so with her. She further denied the suggestion that after registration of FIR, the police prepared the site plan of the place of occurrence at her pointing out or that after that her father i.e. accused was arrested by the police. She further denied the suggestion that she had signed the CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 11 of 23 site plan Ex. PW1/D as well as arrest memo of accused Ex. PW1/C only after that the same were prepared by the police in her presence. She further denied the suggestion that police had also recorded disclosure statement of the accused in her presence. Though she admitted her signatures on the disclosure statement of accused Ex. PW1/E.
16. PW1 the victim further denied the suggestion that on 03.09.2016 police had again made inquiries from her and recorded her supplementary statement in connection with the present case. Having read over the statement Mark B dated 03.09.2016 and Mark C dated 26.09.2016 to the witness, she has denied having made any such statements to the police. She denied the suggestion that accused being her father had repeatedly committed sexual intercourse with her without her consent and made her pregnant twice or that he had also threatened to kill her if she disclosed the incident to anyone. She also denied the suggestion that she is deposing falsely in order to save the accused being her father.
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17. PW2 is 'PS' (the brother of the victim) who in his examinationinchief has deposed that he along with her parents and three sisters including prosecutrix are residing together. He further deposed that prosecutrix did not tell anything to him. He further deposed that a quarrel had taken place in the family and that is why the prosecutrix lodged present case. He further deposed that police did not make any inquiry from him nor he made any statement to the police.
18. PW2 (the brother of the victim) was crossexamined by the Ld. Prosecutor on the ground that he was resiling from his earlier statement made to the police, for which permission was granted by this court. PW2 in his crossexamination by Ld. Prosecutor has denied the suggestion that the statement Mark PW2/A u/s 161 Cr.P.C. dated 26.09.2016 was correctly recorded by the police at his instance. He further denied the suggestion that in the year 2016, his younger sister (prosecutrix) told them that his father is making forcible physical relations with her for the last 78 years and also used to threaten to kill her. He was confronted with the statement Mark CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 13 of 23 PW2/A from portion A to A where it was so recorded. He further denied the suggestion that prosecutrix told them that on her birthday i.e. on 11.08.2016, accused was forcing her to make physical relations with him but she refused and on hearing the said fact from the prosecutrix, they decided to lodge complaint against his father and my younger brother made a call to the police on 13.08.2016. He was again confronted with the statement Mark PW2/A from portion B to B where it was so recorded. He denied the suggestion that he is deposing falsely to save the accused being his father due to pressure put upon him by the family members. He further denied the suggestion that his father was making physical relations with the prosecutrix for the last 78 years and also threatening her to kill if she reported the incident to any of the family members.
19. PW3 is MS (the mother of the victim) who has deposed in her examinationinchief that accused Gaurav Shrivastav is her husband. She has 5 children, three daughters and two sons. The prosecutrix is her third child and she was minor when the present case was lodged by her. She further deposed that at the time of lodging of CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 14 of 23 present case, she along with her husband and all children were residing together. Her husband used to quarrel with her and her children were annoyed about the same and due to fit of anger, the prosecutrix lodged the present case against her husband. She further deposed that the prosecutrix never told her that her husband had misbehaved with her at any point of time. She further deposed that she did not make any statement to the police at any point of time.
20. PW3 (the mother of the victim) was also cross examined by the Ld. Prosecutor on the ground that she was resiling from her earlier statement made to the police, for which permission was granted by this court. In her crossexamination by Ld. Prosecutor, PW3 (mother of the victim) denied the suggestion that the statement Mark PW3/A u/s 161 Cr.P.C. dated 23.08.2016 was correctly recorded by the police at her instance. She further denied the suggestion that she had stated to the police in her statement that she used to visit her native place in Bihar and her husband had married with some other lady and she had left her after 7 years. She was confronted with the portion A to A of statement Mark PW3/A where it was so recorded. CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 15 of 23 She denied the suggestion that on the occasion of marriage of her elder son Deepak, she was present in her native village and the prosecutrix told her on 11.02.2011 that she was having pain in her abdomen and she took her to a doctor along with her husband and after checking the prosecutrix, doctor told her that prosecutrix is pregnant. She was confronted with the portion B to B of statement Mark PW3/A where it was so recorded. PW3 further denied the suggestion that on her inquiry from the prosecutrix, she told her that accused had made forcible physical relations with her and also threatened her not to disclose about the said incident to anybody. She was again confronted with the portion C to C of statement Mark PW3/A where it was so recorded. She further denied the suggestion that on the same day, the pregnancy of prosecutrix was got aborted and accused threatened her as well as prosecutrix and he also beat both of them and threatened to kill or that she did not tell this incident to anybody due to save the honour of family. She was confronted with the portion D to D of statement Mark PW3/A where it was so recorded. She further denied the suggestion that sometimes she used to CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 16 of 23 stay in Delhi with her children and sometimes she used to stay with her in laws about 56 months back, she went to her village Hardawa in Bihar. She was confronted with the portion E to E of statement Mark PW3/A where it was so recorded. She denied the suggestion that she had told the police that on 11.08.2016, prosecutrix made a call to her and told her to return back to Delhi as accused used to make forcible physical relation with her and she narrated the said fact to her sons and she could not reach Delhi on time due to her ill health. She was confronted with the portion F to F of statement Mark PW3/A where it was so recorded. She denied the suggestion that she had stated to police that when she reached Delhi from her native place, prosecutrix told her that accused had made physical relations with her several times during the period 78 years and also used to threaten her. She was confronted with the portion G to G of statement Mark PW3/A where it was so recorded. She denied the suggestion that she is deposing falsely to save her husband from the present case. She further denied the suggestion that she has been under pressure of her husband to depose in his favour.
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21. PW4 is 'S' (sister of the victim) who deposed in her examinationinchief that victim 'U' is her elder sister and she has not told her anything.
22. PW4 (the mother of the victim) was crossexamined by the Ld. Prosecutor on the ground that she was resiling from her earlier statement made to the police, for which permission was granted by this court.
23. In her crossexamination by Ld. Prosecutor, PW4 denied the suggestion that on 11.08.2016, her victim sister 'U told her that their father "GS" wants to make forcible physical relations with her. She further denied the suggestion that her victim sister also told her that the accused has been making physical relation with her for the last 78 years. She further denied the suggestion that while disclosing the aforesaid facts, her victim sister started weeping and told that she cannot bear further the acts of the accused. She was confronted with the statement u/s 161 Cr.P.C dated 26.09.2016 Mark PW4/A wherein it was so recorded. She has denied having made any such statement. She denied the suggestion that she is deliberately not disclosing true CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 18 of 23 facts in order to save the accused who is her father.
24. PW1 the victim 'U', on whose complaint the present case FIR was registered, is the star and crucial witness of the prosecution, but from her testimony as discussed hereinabove, it is apparent that she has not supported the case of the prosecution and no such incriminating evidence as charged against the accused has come on record against him. The other material witnesses examined by the prosecution i.e. PW2 (brother of the victim), PW3 (mother of the victim) and PW4 (sister of the victim) have also not supported the case of the prosecution in their testimonies.
25. In the facts and circumstances of the case, since no incriminating evidence has come on record against the accused of rape or aggravated penetrative sexual assault or criminal intimidation from the testimonies of the victim and other material witnesses examined by the prosecution so far, it will be a futile exercise to examine remaining witnesses who are formal witnesses in nature with regard to registration of FIR, medical examination of the victim and of the accused, age proof of the victim, recording of statement of the victim CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 19 of 23 u/s 164 Cr.P.C. etc and no fruitful purpose would be served by examining them as none of them is an eyewitness to the alleged incident. I find substance in the argument of Ld. Defence Counsel that continuing with the trial any further, will only result in wastage of time and resources, and there will be no impact on the result of the trial. Hence, the prosecution evidence is closed and the statement of the accused u/s 313 Cr.P.C is dispensed with.
26. From the aforesaid testimony of PW1 the victim, it is apparent that she has never been subjected to aggravated sexual assault or rape or aggravated penetrative sexual assault by the accused nor accused has ever criminally intimidated her as alleged by her in her complaint Ex. PW1/A on the basis of which present FIR was registered against the accused. In her entire testimony, she has not alleged anything against the accused. She categorically stated in her evidence that she made the complaint Ex. PW1/A on the advise of her neighbourers to teach a lesson to her father as her father used to quarrel with her mother and in fact no such incident as mentioned in her complaint had happened with her. In her crossexamination by CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 20 of 23 Ld. Prosecutor, PW1 the victim has denied the whole case of the prosecution. Though she admitted her statement u/s 164 C.rP.C. made to the Magistrate Ex. PW1/B wherein she has reiterated the allegations made in her complaint Ex. PW1/A, but in her crossexamination by Ld, Defence Counsel, she categorically stated that she had made the statement u/s 164 Cr.P.C. Ex. PW1/B on the advise of neighbourers to implicate the accused so that the accused may stop quarreling with her mother. She further admitted that nothing had happened with her as mentioned in Ex. PW1/B.
27. PW2 (the brother of the victim) to whom the victim had told about the acts of her father as per her compliant Ex. PW1/A, categorically stated in his evidence the victim did not tell anything to him and due to quarrel took place in the family, her victim sister lodged the present case. PW3 (the mother of the victim) also stated in her evidence that due to fit of anger, the victim lodged the present case against her husband and her victim daughter never told her that accused had misbehaved with her at any point of time. Similarly, PW4 (the sister of the victim) stated in her evidence that her victim CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 21 of 23 sister did not tell anything to her. All the aforesaid witnesses in their crossexamination by Ld. Prosecutor have denied the whole case of the prosecution.
28. There is also no medical evidence to support the case of the prosecution that victim was subjected to rape as no exhibits were taken by the doctor during her medical examination.
29. In the overall facts and circumstances of the case and keeping in view the testimony of PW1 the victim and other witnesses examined by the prosecution who are family members of the victim, there being no incriminating evidence against the accused Gaurav Shrivastav, he is not found guilty of committing the offences punishable under sections 376 (2) and 506 of IPC and section 6 and 10 of POCSO Act as charged against him and he is entitled to be acquitted. Accordingly, accused Gaurav Shrivastav is acquitted of the said offences. However, he is required to furnish bail bond under section 437A of Cr.P.C in the sum of Rs.15,000/ with one surety of like amount. Bail bond u/s 437A Cr.P.C. furnished by him. Same is accepted and shall remain in force for a period of six months. CIS Sessions Case No. 7930/16 "State Vs.Gaurav Shrivastav" Page 22 of 23
30. File be consigned to Record Room, after necessary compliance.
Pronounced in the open Court (Balwant Rai Bansal) on 18th December, 2017. ASJ01/Special Court (POCSO) South District:Saket Courts:
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