Delhi District Court
State vs Mr. Jitender.. -:: Page 10 Of 10 ::- on 17 February, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE POCSO ACT,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 57416/2016.
Old Sessions Case Number : 134/2014.
State
versus
Mr.Jitender
(Parentage and address are withheld as the accused is the father of the
prosecutrix and her identity is to be protected)
First Information Report Number : 487/2014.
Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code
and under section 6 /5 (n) of the POCSO Act.
Date of filing of the charge sheet : 23.06.2014.
Arguments concluded on : 17.02.2018.
Date of judgment : 17.02.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused Mr. Jitender has been produced from
judicial custody.
Mr.Rakesh Rajmurti and Mr. Nagender Singh, counsel for
the accused.
Prosecutrix is present along with her step mother.
Ms.Dipika Saxena, counsel for DLSA as a Support
person.
IO/ASI Surender Kaur is also present.
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New Sessions Case Number : 57416/2016
Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014.
Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code
and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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JUDGMENT
1. Mr. Jitender, the accused, has been charge sheeted by Police Station Moti Nagar for the offences under section 376 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 6/5 (n) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Jitender, has been prosecuted on the allegations that on 29.05.2014 and also prior to it at jhuggi (address is mentioned in the file and withheld to protect the identity of the prosecutrix who is the daughter of the accused), he had committed penetrative sexual assault with the prosecutrix (aged below 12 years). The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity as she is the daughter of the accused and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 23.06.2014.
4. After hearing arguments, charge for offences under section 6 of the POCSO Act was framed against accused Mr.Jitender Kumar vide New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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order dated 19.12.2014 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined as many as two (03) witnesses i.e. Ms. Y, mother of the prosecutrix, as PW1; Ms. Saira Siddiqui, as PW2; and the prosecutrix Ms.X, as PW3. Fictitious identities of Ms.X and Ms.Y are given to the prosecutrix and the mother of the prosecutrix respectively, in order to protect the identity of the prosecutrix.
6. The evidence of the prosecutrix Ms.X as PW3 has been recorded in the Vulnerable Witness Deposition Room in camera. Her mother Ms.Y as PW1 has also been examined in camera.
7. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix. Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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8. Preliminary inquiries were made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
9. The prosecutrix Ms.X as PW3 has seen accused Mr.Jitender, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused as her father and has deposed that "Accused Jitender is innocent and has not committed any offence against me. I pray that he may be acquitted. ."
10.As the prosecutrix Ms.X (PW3) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her. She has been cross examined at length but nothing material for the prosecution has come forth. She has deposed that "It is wrong to suggest that the accused has removed my clothes, has inserted his finger in my private parts, has established physical relations with me and has told me that he will marry me after leaving my step mother. It is wrong to suggest that I am deposing falsely before the Court that the statements made by me before the police and before the Ld. Judge were made by me out of anger in order to save the accused. It is correct that accused is New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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my father and I want that case may be closed against him." In her cross examination on behalf of the accused, she has deposed that "It is correct that the accused who is my father has not committed any offence against me. It is correct that the accused has neither removed my clothes nor inserted his finger in my private parts nor established physical relations with me nor told me that he will marry me after leaving my step mother. It is correct that accused Jitender is innocent. I again pray he may be acquitted."
11.The mother of the prosecutrix Ms.Y (PW1) has also not deposed anything incriminating against the accused. The mother of the prosecutrix has been cross examined by the Additional Public Prosecutor at length but nothing material for the prosecution has come forth. In her cross examination on behalf of the accused, the mother of the prosecutrix Ms.Y (PW1) has admitted that "It is correct that prosecutrix has already been married. The age of the prosecutrix was 20 years of age at the time when the case was registered. The in laws of the prosecutrix are situated at Delhi Cantt."
12.Both the witnesses PWs 1 and 3 have not deposed an iota of evidence of accused Mr.Jitender that he committed the offences of committing penetrative sexual assault and outraging the modesty of the prosecutrix. The evidence of PW2 is only hear-say and no New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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reliance can be placed upon the same as the prosecutrix herself has not supported the prosecution case.
13.In the circumstances, as the mother Ms.Y (PW1) and prosecutrix Ms.X (PW3), who are the star witnesses, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have 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 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 mother Ms.Y (PW1) and prosecutrix Ms.X (PW3), who are the star witnesses and the most material witnesses, have not supported the prosecution case and have not deposed anything incriminating against the accused.
14.The statement under section 313 of the Cr.P.C of the accused Mr.Jitender is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW3), who is the star witness, is hostile and nothing material has come forth for the prosecution in the evidence of PWs 1 and 3.
New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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15.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.
16.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW3) and her mother Ms.Y (PW1), 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 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 the accused has 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."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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18.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.
19.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).
20.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.Jitender. Even otherwise, no useful purpose would be served by adopting any New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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hyper technical approach in the issue.
21.Consequently, no inference can be drawn that the accused Mr.Jitender is guilty of the charged offences under section 6 of POCSO Act
22.There is no material on record to show that on 29.05.2014 and also prior to it at jhuggi, the accused had committed penetrative sexual assault with the prosecutrix (being father of the prosecutrix).
23.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 accused Mr.Jitender for the offences of committing penetrative sexual assault and even of outraging the modesty of the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Mr.Jitender has committed any of the charged offences.
24.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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home the charge against accused Mr. Jitender for the offences under section 6 of the POCSO Act.
25.Consequently, accused Mr.Jitender is hereby acquitted of the charges for the offences of committing penetrative sexual assault and even of outraging the modesty of the prosecutrix punishable under section 6 of the POCSO Act.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
26.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
27.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
28.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
29.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act.
State versus Mr. Jitender.. -:: Page 10 of 10 ::-
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Announced in the open Court on (NIVEDITA ANIL SHARMA) this 17th day of February, 2018. Additional Sessions Judge-01, Special Court Under The POCSO Act, West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 57416/2016 Old Sessions Case Number : 134/2014.
First Information Report Number : 487/2014. Police Station : Moti Nagar.
Under section 376 of the Indian Penal Code and under sections 6 / 5(n) of the POCSO Act. State versus Mr. Jitender.. -:: Page 10 of 10 ::-