Delhi District Court
State vs Mr.Santosh. -:: Page 1 Of 10 ::- on 11 May, 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 : 57602/2016.
Old Sessions Case Number : 04/2016.
State
versus
Mr.Santosh
Son of Mr.Kamtu Kevat,
Resident of Village Hajipur Post Office
and Police Station Goira, District Chhatarpur, (M.P).
First Information Report Number : 155/2015.
Police Station Raja Garden Metro.
Under section 376 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet before : 29.12.2015.
the Court of the Metropolitan Magistrate
Date of receipt of this file in the Court of Sessions : 04.01.2016.
Arguments concluded on : 11.05.2018.
Date of judgment : 11.05.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for the Delhi Commission for
Women.
Accused on bail with counsel, Mr.Pradeep Kumar.
PWs- Parents of the prosecutrix.
Investigation Officer SI Sunita Dutta.
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New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015.
Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code
and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 1 of 10 ::-
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JUDGMENT
1. Mr.Santosh, the accused, has been charge sheeted by Police Station Raja Garden Metro for the offences under section 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).
2. Accused Mr.Santosh has been prosecuted on the allegations that on 09.12.2015, he had committed aggravated penetrative sexual assault and rape upon the prosecutrix Ms.X, who is minor girl and born on 10.03.2004, who is his niece, in the room of the prosecutrix.
3. The name, age 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 Mr.Z is given to the father of the prosecutrix to protect her identity.
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 29.12.2015 and thereafter, the file was received in the Court of learned Predecessor of this Court on 04.01.2016.
5. After hearing arguments, charge for offences under section 6 of the POCSO Act and in the alternate under section 376 of the IPC was framed against accused Mr.Santosh vide order dated 04.03.2016 by New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 2 of 10 ::-
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the learned Predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as (02) witnesses i.e. the prosecutrix Ms.X, as PW1 and Mr.Z, father of the prosecutrix, as PW2.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her father Mr.Z as PW2 has also been examined in camera.
8. The prosecutrix Ms.X as PW1 had seen accused Mr. Santosh on the screen in the witness room and the prosecutrix has identified the accused, as her Chacha Santosh. She has deposed that "Mere Saath Isne to Kuchh Na Kiya." On questioning the prosecutrix "Did you file any complaint against the Santosh to the Police." She has replied "No".
9. 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 deposed that, "Ye Galat Hai, Isne Mere Saath Koi Galat Kaam Nahi Kiya. Main Jhudh Nahi Bol Rahi. Mere Pet Mein Dard Ho Raha Tha Mene Chacha Se Kaha Ki Mujhe Dawayi Dilwa Laayo. Hospital Mein Mujhe Ek Madam Ne Kaha Thak Ki Mere Maa Baap Ko Jail Mein Daal Denge Isliye Mein Jhudh Keh Diya Thak Ki Mere Chacha Ne Mere New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 3 of 10 ::-
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Saath Aisa Kiiya Hai, Jabki Mere chacha Ne Mere Saath Aisa Nahi Kiya Tha." She has been cross examined but nothing material for the prosecution has come forth. She has denied all the allegations against the accused.
10.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has not deposed anything incriminating against the accused.
11.The father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused.
12.As the father of the prosecutrix Mr.Z (PW2) was hostile and had retracted from his earlier statement, the Additional Public Prosecutor has cross-examined him. He has deposed that, "It is wrong to suggest that as the accused is my brother, I am giving false evidence so he escapes punishment. It is wrong to suggest that my daughter had told me that she had been raped by my brother and then I and my wife had taken her to the doctor and the case got registered against my brother. It is wrong to suggest that my police recorded my statement in the present case." He was cross examined at length by the prosecution but nothing material for the prosecution came forth in his lengthy cross examination.
New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 4 of 10 ::-
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13. In his cross examination on behalf of the accused, he has admitted that "It is correct that accused Santosh is innocent and has not committed any offence against my daughter."
14.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1 and father of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Santosh that he committed the offences of aggravated penetrative sexual assault and of rape upon the prosecutrix.
15.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 the accused and as the father 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 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 father, Mr.Z (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 5 of 10 ::-
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16. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Santosh is dispensed with as there is nothing incriminating against him 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 and her father (PW2) has also not deposed anything incriminating against the accused.
17.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.
18.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her father (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 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 New Sessions Case Number : 57602/2016. Old Sessions Case Number : 04/2016. First Information Report Number : 155/2015. Police Station : Raja Garden Metro. Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act. State versus Mr.Santosh. -:: Page 6 of 10 ::-
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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."
19.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
20.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.
21.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).
New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 7 of 10 ::-
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22.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.Santosh. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
23.Consequently, no inference can be drawn that the accused Mr.Santosh is guilty of the charged offences under section 6 of the POCSO Act and in the alternate under section 376 of the IPC
24.There is no material on record to show that on 09.12.2015, accused had committed aggravated penetrative sexual assault and rape upon the prosecutrix Ms.X (who is minor girl and born on 10.03.2004) who is his niece, in the room of the prosecutrix.
25.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.Santosh for the offences of aggravated penetrative sexual assault and of raping the prosecutrix. The witnesses have not deposed an iota of evidence that accused Mr.Santosh has committed any of the charged offences.
New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 8 of 10 ::-
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26.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.Santosh for the offence under section 6 of the POCSO Act. The prosecution has also failed to prove the alternate charge for the offence under section 376 of the IPC.
27.Consequently, accused Mr.Santosh is hereby acquitted of the charges for the offence of aggravated penetrative sexual assault upon the prosecutrix punishable under section 6 of the POCSO Act. He is also acquitted for the alternate charge of raping the prosecutrix punishable under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
28.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
29.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
30.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 9 of 10 ::-
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31.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Digitally signed by NIVEDITA NIVEDITA ANIL SHARMA
ANIL SHARMA Date: 2018.05.16
15:42:24 +0530
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 11th day of May, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
************************************************************** New Sessions Case Number : 57602/2016.
Old Sessions Case Number : 04/2016.
First Information Report Number : 155/2015. Police Station : Raja Garden Metro.
Under section 376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Santosh. -:: Page 10 of 10 ::-