Delhi District Court
State vs Mr. Aashif And Another. -:: Page 1 Of 14 ... on 13 April, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
State
versus
1. Mr.Aashif
Son of Mr.Munne Khan,
Resident of New F-276,
Raghubir Nagar, Delhi.
2. Mr.Aabid
Son of Mr.Umar.
Resident of Pipal Wali Maszid, Mohalla
Mewtiyan, Dadri, Gautam Budh Nagar, U.P.
First Information Report Number : 52/2018.
Police Station Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 07.03.2018.
Arguments concluded on : 13.04.2018.
Date of judgment : 13.04.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women is on leave.
Ms.Rashmi Aggarwal, substitute counsel for Delhi
Commission for Women.
Accused Mr.Aashif and Mr.Aabid on bail.
Mr.Sanjay, counsel for accused Mr.Aashif.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018.
Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code
and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 1 of 14 ::-
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Mr.A.Ahmad, counsel for accused Mr.Aabid.
Prosecutrix with her mother.
Ms.Deepika Saxena, counsel from Delhi Legal Services
Authority as Support Person.
Investigating Officer SI Pooja.
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JUDGMENT
1. Mr.Aashif, the accused, has been charge sheeted by Police Station Ranjit Nagar for the offences under sections 363/376 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and the second accused, Mr. Aabid, has been charge sheeted by Police Station Ranjit Nagar for the offence under section 120 B of the Indian Penal Code (hereinafter referred to as the IPC).
2. Accused Mr.Aashif has been prosecuted on the allegations that on 23.01.2018, he kidnapped the prosecutrix Ms.X, aged about 16 and half years, from her lawful guardianship; he kidnapped the prosecutrix Ms.X with intention that she may be compelled or knowingly or it to be likely that she may be forced or seduced to illicit intercourse or knowingly to be likely that she will be forced or seduced to illicit intercourse; during the period from 23.01.2018 to 08.02.2018 in one rented room at Ranjit Nagar and in other rented room situated at Dadri, U.P, he committed penetrative sexual assault upon the prosecutrix several times and committed rape upon the prosecutrix several times.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 2 of 14 ::-
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3. Accused Mr.Aabid has been prosecuted on the allegations that during the period from 23.01.2018 to 08.02.2018, he arranged one room on rent in Dadri, U.P. for his co accused Mr.Aashif who had kidnapped the prosecutrix Ms. X, aged about 16 and half years, with the intention or knowledge that she may be seduced or forced to have illicit intercourse and in that rented room at Dadri, U.P, his co-accused Mr.Aashif stayed with the prosecutrix and in this manner, he intentionally aided his associate Mr.Aashif in committing the offence.
4. The name, address and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
Fictitious identity of Ms.Y is given to the mother of the prosecutrix in order to protect the identity of the prosecutrix.
5. After completion of the investigation, the charge sheet was filed before the Court on 07.03.2018.
6. After hearing arguments, charge for offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC was framed against accused Mr.Aashif vide order dated 27.03.2018 to which the accused Mr.Aashif had pleaded not guilty and claimed trial.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 3 of 14 ::-
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7. After hearing arguments, charge for offences under section 6 of the POCSO Act and under section 17 of the POCSO Act was framed against accused Mr.Aabid vide order dated 27.03.2018 to which the accused Mr.Aabid had pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has examined as many as (02) witnesses i.e. the prosecutrix Ms.X, as PW1 and Ms.Y, mother of the prosecutrix, as PW2.
9. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her mother Ms.Y as PW2 has also been examined in camera.
10.The prosecutrix Ms.X as PW1 has seen accused Mr.Aashif and Mr.Aabid through one way visibility window on her screen and has identified them as accused Mr.Aashif and accused Mr.Aabid and deposed that they are innocent and have not committed any offience. She has deposed that "Accused Aashif is my friend and I used to address accused Aabid as brother. They are innocent and they have not committed any offence.I had gone with accused Aashif to Dadri and as I had not returned in time, my mother had got the present case registered. I had not told anyone at home that I was going with accused Aashif. I had been beaten by my father when I had demanded a mobile phone and then out New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 4 of 14 ::-
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of anger I had gone from my home." She has further deposed that "Accused Aabid is a friend of accused Aashif and he had told accused Aashif about a room at Dadri. Aabid had already present at the room when accused Aashif and I reached there. They did not do anything wrong with me in the room or anywhere else. They are innocent. I alongwith accused Aashif stayed in that room for 10-12-15 days. No offence was committed against me by accused Aashif."
11.As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her. She has been cross examined but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that accused Aashif induced me to leave my house as my father used to beat me after consuming liquor. It is wrong to suggest that as Aashif told me that he would keep me happy and asked me to come to him and for this reason I had left my house. It is wrong to suggest that I had stayed with accused Aashif at Raghubir Nagar. Vol. It was for one day and it was a place which was ahead of Raghubir Nagar. It is wrong to suggest that accused Aashif had physical relations with me at Raghubir Nagar and Dadri. It is wrong to suggest that I have deposed my date of birth as 17.08.1999 in order to save the accused by projecting myself as a major on the date of commission of the offence. Vol. I have my report card to show that my date of birth is 17.08.1999 but I have not brought it in the New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 5 of 14 ::-
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court. I do not have any birth certificate showing my date of birth as 17.08.1999. It is wrong to suggest that I am deposing falsely in order to save accused Aashif who is my friend and accused Aabid whom I addressed as my brother. It is wrong to suggest that I am deposing falsely."
12.In her cross examination on behalf of the accused Aashif, the prosecutrix Ms.X (PW1) has deposed that "It is correct that accused Aashif has not committed any offence and he is innocent." In her cross examination on behalf of the accused Aabid, the prosecutrix Ms.X (PW1) has deposed that "It is correct that accused Aabid has not committed any offence and he is innocent."
13.The mother of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused Mr.Aashif and Mr.Aabid. She was declared hostile by the prosecution but nothing material for the prosecution came forth in her lengthy cross examination. In her cross examination on behalf of the accused Aashif, she has admitted that "It is correct that my daughter the prosecutrix did not tell me anything about accused Aashif committing any offence against her." In her cross examination on behalf of the accused Aabid, she has admitted that "It is correct that my daughter the prosecutrix did not tell me anything about accused Aabid committing any offence against her. It is correct that I had no conversation with accused Aabid on phone at any New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 6 of 14 ::-
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point of time." She has further deposed that, "It is wrong to suggest that accused Aabid was not arrested by the police from Anand Vihar bus terminal in my presence. It is wrong to suggest that no mobile phone was recovered from accused Aabid or that same has been falsely planted upon him. It is wrong to suggest that accused Aabid has been falsely implicated in this case. It is wrong to suggest that I am deposing falsely."
14.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1 and Ms. Y, mother of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Aashif that he committed the offences of kidnapping, of forced or seduced to illicit intercourse, of penetrative sexual assault and of raping the minor prosecutrix.
15.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1 and Ms. Y, mother of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Aabid that he aided his associate (accused Mr.Aashif) in committing the offence.
16.In the circumstances, as the prosecutrix Ms.X (PW1), who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to both the accused persons as well as mother of the prosecutrix (PW2) has not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 7 of 14 ::-
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shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and mother Ms.Y (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
17.The statements under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Aashif and Mr.Aabid are dispensed with as there is nothing incriminating against them as the prosecutrix Ms.X (PW1) is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State. Even her mother (PW2) has also not deposed anything incriminating against the accused Mr.Aashif and Mr.Aabid.
18.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
19.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her mother (PW2), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 8 of 14 ::-
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their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that both the accused persons have not committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
20.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
21.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 9 of 14 ::-
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22.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
23.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Mr.Aashif and Mr.Aabid. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
24.Consequently, no inference can be drawn that the accused Mr.Aashif is guilty of the charged offences under section 363/366 of the IPC and under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
25.No inference can be drawn that the accused Mr.Aabid is guilty of the charged offences of the abetment under section 6 of the POCSO Act and under section 17 of the POCSO Act.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 10 of 14 ::-
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26.There is no material on record to show that on 23.01.2018, accused Mr.Aashif kidnapped the prosecutrix Ms.X, aged about 16 and half years, from her lawful guardianship; he kidnapped the prosecutrix Ms.X with intention that she may be compelled or knowingly or it to be likely that she may be forced or seduced to illicit intercourse or knowingly to be likely that she will be forced or seduced to illicit intercourse; during the period from 23.01.2018 to 08.02.2018 in one rented room at Ranjit Nagar and in other rented room situated at Dadri, U.P, he committed penetrative sexual assault upon the prosecutrix several times and committed rape upon the prosecutrix several times.
27.There is no material on record to show that during the period from 23.01.2018 to 08.02.2018, accused Mr.Aabid arranged one room on rent in Dadri, U.P for his co accused Mr.Aashif who had kidnapped the prosecutrix Ms. X, aged about 16 and half years, with the intention or knowledge that she may be seduced or forced to have illicit intercourse and in that rented room at Dadri, U.P, his co- accused Mr.Aashif stayed with the prosecutrix and in this manner he intentionally aided his associate Mr.Aashif in committing the offence.
28.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 11 of 14 ::-
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accused Mr.Aashif for the offences of kidnapping the minor prosecutrix, of forcing or seducing her to illicit intercourse, of penetrative sexual assault and of raping the minor prosecutrix. The witnesses have not deposed an iota of evidence that accused Mr.Aashif has committed any of the charged offences.
29.From the above discussion, it is also clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Aabid that he aided his associate (accused Mr.Aashif) in committing the offence. The witnesses have not deposed an iota of evidence that accused Mr.Aabid has committed any of the charged offences.
30.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Aashif for the offences under section 363/366 of the IPC and under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
31.Further, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Aabid for the offences of the abatement under section 6 of the POCSO Act and under section 17 of the POCSO Act.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 12 of 14 ::-
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32.Consequently, accused Mr.Aashif is hereby acquitted of the charges for the offences of kidnapping the minor prosecutrix, of forcing or seducing her to illicit intercourse, of penetrative sexual assault and of raping the minor prosecutrix punishable under section 363/366 of the IPC, section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
33.Consequently, accused Mr.Aabid is hereby acquitted of the charges for the offence that he aided his associate (accused Mr.Aashif) in committing the offences punishable under section 6 of the POCSO Act and under section 17 of the POCSO Act.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
34.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
35.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
36.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 13 of 14 ::-
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37.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
NIVEDITA ANIL Digitally signed by NIVEDITA ANIL SHARMA SHARMA Date: 2018.04.23 14:01:09 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 13th day of April, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
************************************************************** New Sessions Case Number : 142/2018.
Old Sessions Case Number : 14/2018.
First Information Report Number : 52/2018. Police Station : Ranjit Nagar.
Under sections 363/376/120 B of the Indian Penal Code and under sections 6 of the POCSO Act.
State versus Mr. Aashif and another. -:: Page 14 of 14 ::-