Delhi District Court
State vs . Dashrath Sharma on 22 September, 2014
State Vs. Dashrath Sharma
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 09/14
ID No. : 02401R0052622014
FIR No. : 149/13
Police Station : Jama Masjid
Under Section : 376 (2) (i)/511 IPC & Section
6/10 POCSO Act
State
Versus
Dashrath Sharma
S/o Radhey Sharma,
R/o Vegabond Patri,
Meena Bazar, Jama Masjid,
Delhi
.........Accused
Date of Institution : 29.01.2014
Date of judgment reserved : 19.09.2014
Date of judgment : 22 .09.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Neeraj Jain, Amicus Curiae for accused
Ms. Priyangee Guha, Advocate, counsel for complainant
SC No. 09/14 Page 1 of 26
State Vs. Dashrath Sharma
JUDGMENT :-
1. Briefly stated facts of prosecution case are that on December 10, 2013 at about 7:13 PM an intimation was received at police control room from mobile number 8376070838 that one boy was doing galat kam with a girl aged about 8 years at Meena Bazar near pond. Said intimation was conveyed to local police at police station Jama Masjid, where it was recorded vide DD No. 27A (Ex. PW1/A). The same was assigned to SI Lalita Rawat (PW7) who along with SI Suresh Pal (PW6) and Const. Satender (PW5) and constable Anju (PW4) left for the spot.
(i). It was alleged that on reaching the spot complainant met there and got recorded her statement Ex. PW2/A (Since complainant is the mother of a sexually assaulted child victim, in order to conceal the identity of victim, her identity is also withheld and hereinafter she is referred to as complainant or mother of the victim and her daughter is refered to as victim). Complainant in her statement Ex. PW2/A alleged that she along with her husband was residing for the last 20 years at Meena Bazar park and begging is the source of her livelihood. She has a daughter aged about one year. It was alleged that on December 10, 2013 at about 6.30 PM, she was laying down at her theiya at pavement Meena Bazar, Jama Masjid. At about 6:30 PM her daughter was playing near her but all of sudden she heard the scream of her daughter, consequently, she saw that one person aged about 40-45 years who was also beggar and residing at pavement Meena Bazar i.e. accused Dasharath Sharma was carrying her daughter in his lap and his finger was at the vagina of her daughter.
Consequently, she snatched her daughter from the accused and gave push to the accused, consequently, accused fell down. It was alleged that public SC No. 09/14 Page 2 of 26 State Vs. Dashrath Sharma persons gathered there and they had beaten the accused mercilessly. Someone from the crowd made a call to police at 100 number. On her statement, an FIR for the offence punishable under Section 6/10 of Protection of Children from Sexual Offences, 2012 ( in short POCSO Act ) and under Section 376 (2) (i) Indian Panal Code was got registered.
(ii). During investigation, victim and accused were sent for medical examination. Complainant did not give her consent for internal examination of the victim. Document relating to the age of victim was collected. Accused was arrested.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 376 (2) (I) read with Section 511 IPC and under Section 6/10 of POCSO Act.
3. After complying with the provisions of Section 207 Cr.P.C, a charge for the offence punishable under Section 10 of POCSO Act was framed against the accused vide order dated February 14, 2014, to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 7 witnesses:-
PW1 HC Adesh Kumar, duty officer, proved the
FIR & DD No. 27A & 28A.
PW2 Complainant, material witness
PW3 Naresh Kumar, informed the police control
room
PW4 Const. Anju, member of investigating team
SC No. 09/14 Page 3 of 26
State Vs. Dashrath Sharma
PW5 Const. Satender, member of investigating team
PW6 SI Suresh Pal, member of investigating team
PW7 SI Lalita Rawat, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he refuted all incriminating evidence led by prosecution and submitted that he was beaten by complainant and her husband mercilessly as he was under the influence of liquor. It was submitted that he was sitting in the park and taking heat after burning woods. But all of sudden complainant and her husband came there and started beating him with iron rod, consequently bleeding started from his head and he sustained multiple injuries. He claimed that he is innocent. However, he refused to lead any evidence in his defence.
6. Learned amicus-curiae appearing for the accused vehemently contended that no reliance can be placed on the prosecution version as prosecution version suffers from numerous infirmities. It was astutely contended that even prosecution has failed to establish what intimation was given to the police control room as prosecution has set up a case that intimation was given by the caller that one boy was doing galat kam with a girl aged about 8 years whereas PW3 deposed that he informed the police that public persons were beating a person and asked them to reach immediately otherwise anything could be happened. Thus, it was argued that even prosecution has failed to prove DD No. 27A in accordance with law. It was further contended that there is also inordinate unexplained delay in sending the copy of FIR to the concerned Illaqua Magistrate as PW1, duty officer in his cross-examination categorically deposed that he did not know when the copy of FIR was sent to Metropolitan Magistrate in compliance of Section 157 of Code of Criminal Procedure. It was thus, SC No. 09/14 Page 4 of 26 State Vs. Dashrath Sharma argued that since there was a delay in sending the copy of FIR, no reliance can be placed on the prosecution version because the delay indicates that the FIR was registered after due deliberation and consultation. It was further argued that even the name of complainant and accused is not mentioned in the Quami daily diary (DD NO. 28A), which shows that the name of accused was not known at the time of recording of DD No. 28A. It was further contended that there is no evidence on record to show when the copy of FIR was supplied to the complainant which further indicated that the FIR was registered after due deliberation and consultation.
(i) It was further contended that prosecution has set up a case that the intimation of arrest was given to the wife of accused but none of the witnesses could depose how the intimation was given to his wife and there is material contradiction on this point between the testimony of witnesses examined by prosecution. It was further sagaciously argued that the investigating officer had not even complied with the mandatory provisions of Section 41D of Code of Criminal Procedure, thus, no reliance can be placed on the disclosure statement. Moreover, the alleged disclosure statement is otherwise hit by Section 25 of Evidence Act.
(ii) It was sagaciously contended that though prosecution has examined seven witnesses, yet, prosecution case is based on the sole uncorroborated testimony of PW2 i.e. complainant. It was contended that no reliance can be placed on her deposition because she made an attempt to set up altogether a new case during her deposition, which is not permissible in a criminal trial. It was further contended that prosecution has set up a case that when complainant got up, she saw that her daughter was in the lap of accused and finger of accused was at the vagina of her daughter but in her deposition, she deposed that when she got up, SC No. 09/14 Page 5 of 26 State Vs. Dashrath Sharma accused was sitting and her daughter was at the penis of accused, which is not the prosecution case. It was further contended that there are other several material contradictions between the testimony of witnesses examined by prosecution as according to the prosecution version accused was wearing pant and shirt at the time of alleged incident whereas PW2 deposed that accused was wearing only lungi and he was not even wearing underwear. It was astutely contended that complainant had made substantial improvements in her deposition which affect the core of prosecution case, thus, no reliance can be placed on her testimony. It was further argued that prosecution failed to produce any other cogent evidence to prove the guilt of accused.
(iii) It was sagaciously contended that from the testimony of witnesses examined by prosecution, it became clear that accused was beaten severelly and PW2 in her deposition also admitted that she and her husband had also beaten the accused but also deposed that public persons had also given beating to the accused. It was contended that testimony of PW2 corroborated the defence version that he was beaten by complainant and her husband. PW7 in her testimony admitted that accused had sustained grievous blunt injury and a separate case had been registered against the complainant. It was argued that in these circumstances, the possibility that when the complainant came to know that accused had sustained grievous injury, in order to save herself and her husband, she might have concocted a false story cannot be ruled out.
7. On the other hand, learned Additional Public Prosecutor refuted the said contentions by sagaciously arguing that the testimony of PW2 is trustworthy and there is no reason to disbelieve her testimony. It was urged that mere fact that she had made some new allegations in her deposition is SC No. 09/14 Page 6 of 26 State Vs. Dashrath Sharma not fatal to the prosecution case. It was argued that during cross- examination conducted by the State, she admitted that when she got up, she saw that finger of accused was at the vagina of her daughter, thus it cannot said that PW2 did not support the prosecution case in any manner. It was further argued that there was no delay in sending the copy of FIR to the learned Illaqua Magistrate and the lapses highlighted by learned defence counsel are trivial in nature and the same are not fatal to the prosecution case in any manner.
8. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. First question emerges for adjudication as to whether there was any delay in sending the copy of FIR to the learned Illaqua Magistrate in compliance of Section 157 Code of Criminal Procedure or not?
10. It is admitted case of prosecution that the rukka was received by duty officer on December 10, 2013 at 8:50 PM and thereafter, FIR was registered. PW1 HC Adesh in his cross-examination deposed that he cannot tell when the copy of FIR was sent to the Court of learned Metropolitan Magistrate in accordance with Section 157 Code of Criminal Procedure. Perusal of the judicial file, it is revealed that the prosecution has not placed the copy of FIR having endorsement of learned Illaqua Magistrate to the effect that the copy of FIR was ever received by learned Illaqua Magistrate. Thus, there is no evidence on record to prove the fact that the copy of FIR was ever sent to learned Illaqua Magistrate in terms of Section 157 of Code of Criminal Procedure. Section 157 of Code of Criminal Procedure casts a duty on SHO to send the report forthwith to the SC No. 09/14 Page 7 of 26 State Vs. Dashrath Sharma Metropolitan Magistrate empowered to take cognizance of such offences. But in this case, no such copy was ever sent.
(i) No doubt a Special report was sent to the Special Court on December 11, 2013 at about 11 AM. The said report was sent in terms of sub-Section 6 to Section 19 of POCSO Act which reads as under:-
"The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty- four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard."
(emphasis supplied)
11. Under Section 157 Code of Criminal Procedure, SHO is required to send the report forthwith whereas under Section 19(6) of POCSO Act, Special Juvenile Police Unit or local police is empowered to send the report without unnecessary delay but within the period of 24 hours. Thus, under Section 19(6) of POCSO Act police is not required to send the report forthwith to the Special Court because the object of Section 19(6) is different from Section 157 Code of Criminal Procedure. Main object of Section 19(6) of POCSO Act is to inform the Special Court about the steps taken for the welfare of the victim. Section 19(6) of POCSO Act protects the rights of child victim whereas Section 157 of Code of Criminal Procedure protects the rights of accused.
12. Assuming for the sake of arguments that the said special SC No. 09/14 Page 8 of 26 State Vs. Dashrath Sharma report also fulfils the requirement of Section 157 of Code of Criminal Procedure. It means that the same was sent to the Court concerned after about 14 hours after registration of the FIR. It means that there was a delay of 14 hours in sending the copy of FIR to the concerned Court. But during trial, prosecution failed to explain the said delay in any manner. It is pertinent to state that there is a specific column in the FIR i.e. column No. 15 wherein investigating agency is duty bound to mention the date and time of dispatch of FIR to the Court but the said column is blank in the FIR Ex. PW1/C. It is also pertinent to mention here that this Court has observed in so many other cases that this column always remain blank, which shows that SHOs/investigating officers do not adhere to the provisions of law in its letter and spirit. Further, during trial, prosecution also failed to explain the said delay in any manner.
13. In this regard the observations of Hon`ble Apex Court in case Bijoy Singh v/s State of Bihar, AIR 2002 SC 1949 are apposite and same is reproduced as under:-
Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any SC No. 09/14 Page 9 of 26 State Vs. Dashrath Sharma innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
14. Since there is inordinate unexplained delay in sending the copy of the FIR to the Court concerned, in the light of above settled proposition of law, prosecution case needs minute scrutiny to ensure as to whether accused had been falsely implicated in this case or not.
15. Sub-Section 2 to Section 154 Code of Criminal Procedure also casts a duty on the SHO to supply the copy of FIR to the complainant free of cost and same reads as under:-
" A copy of the information as recorded under sub-section (1) shall given forthwith, free of cost, to the informant."
(emphasis supplied)
16. PW1 HC Adesh Kumar, duty officer in his cross-examination deposed that he had supplied the copy of FIR to the complainant when she visited the police station. However, he admitted that he had not recorded any DD entry at that time; nor he had taken any acknowledgement from the complainant to the effect that the copy of FIR was given to her. He also admitted that there is no documentary evidence on record to show that copy of the FIR was supplied to the complainant. If PW1 had supplied the copy of the FIR to the complainant, it was his duty to obtain her signature on the FIR as there is specific column i.e. column no. 14 in the FIR but in SC No. 09/14 Page 10 of 26 State Vs. Dashrath Sharma the instant this column is also blank. Thus, the testimony of PW1 that he had supplied the copy of FIR to the complainant is without any substance. It is pertinent to state that complainant in her deposition nowhere deposed that she had ever received the copy of FIR. Further, as per the testimony of PW1 he was on duty till 12 mid night, thus he could supply the copy of FIR to the complainant, if she had come to the police station prior to 12 mid night. PW4 in her cross-examination deposed that she left from the hospital between 1 AM to 2 AM along with complainant and SI Lalita Rawat. No doubt, her testimony is contrary to the testimony of PW7 but the fact remains that there is a variation in the testimony of police official witnesses about the time when complainant reached the police station. If complainant left from the hospital between 1 AM to 2 AM, it was not possible for PW1 to supply the copy of FIR to the complainant. Further, when the legislature has cast a special duty on the investigating agency, it is their duty to prove the same in accordance with law by leading cogent evidence but in this case even prosecution failed to establish the fact whether the copy of FIR was ever sent to the complainant or not. If yes, at what time. The relevancy of column no. 14 in the FIR is to show that there was no delay in registration of the FIR, which rules out the possibility of deliberation and consultation.
17. Now coming to DD No. 28A i.e. Quami daily diary.
18. PW1 in his cross-examination admitted that in Quami daily diary, the name of the complainant, name of accused, if any, and name of eye witness, if any is to be recorded and also admitted that in Quami (DD No.28A), neither the name of accused nor the name of complainant is mentioned therein. He further deposed that he cannot tell whether the name of accused was revealed till the recording of DD No. 28A or not. Thus, it becomes clear from the testimony of PW1 that when he recorded SC No. 09/14 Page 11 of 26 State Vs. Dashrath Sharma the DD No. 28A as Quami under Rule 24.1 & 24.2 of Punjab Police Rules, neither the name of complainant nor the name of accused was mentioned therein. This further indicates that till the recording of DD No. 28A, the name of accused was not surfaced which further indicates that the FIR was ante-time and the same was registered after due deliberation and consultation and due to that reason, there was delay in sending the copy of FIR to the Court concerned.
19. Now coming to the DD No. 27A (Ex. PW1/A).
20. Prosecution has set up a case that DD No. 27A was recorded on the basis of information received from police control room through wireless operator and as per the DD No. 27A, one person from mobile number 8676070838 informed the police control room that one boy was doing galat kam with a girl aged about 8 years at Meena Bazar park near pond. However, prosecution has failed to produce the PCR form. In order to prove the said information, prosecution has placed reliance on the testimony of PW3 Mr. Naresh who made a call to the police. PW3 in his cross-examination deposed that he made a call to the police from the point where he was taking massage in Meena Bazar Park and further deposed that when he made a call to the police, he told the police that public persons were beating a person and asked them (police officials) to come immediately otherwise anything could be happened to him. Thus, it becomes clear that PW3 did not inform the police that the boy was committing galat kam with a girl aged about 8 years in Meena Bazar near pond. Since, PW3 did not support the prosecution case, it was the duty of the prosecution to file the PCR form which was primary documentary evidence to prove the nature of information which was given to the police but investigating agency and prosecution withheld the said document from SC No. 09/14 Page 12 of 26 State Vs. Dashrath Sharma the Court without any reasonable explanation. Since, prosecution has withheld the said document without any just and reasonable explanation, presumption shall be drawn against the prosecution under Section 114(g) of Evidence Act that the said document would not support the prosecution claim, if the same was produced. This lapse on the part of prosecution further raises doubt over the prosecution case.
21. Now coming to the non-compliance of Section 41 (B) and Section 41(D) of Code of Criminal Procedure.
22. Prosecution has set up a case that after arrest, intimation of the arrest of accused was given to his wife named Rubina and during interrogation, accused had made a disclosure statement before the police wherein he confessed his guilt.
23. Before proceeding further, I deem it appropriate to refer to Section 41(B) and 41(D) of Code of Criminal Procedure and same are read as under:-
" 41B. Procedure of arrest and duties of officer making arrest.- Every police officer while making an arrest shall- (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the SC No. 09/14 Page 13 of 26 State Vs. Dashrath Sharma memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
Section 41D-Right of arrested person to meet an advocate of his choice during interrogation:- When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.
(emphasis supplied)
24. Bare perusal of Section 41B makes it clear that a duty has been cast on the arresting police official if the memorandum of arrest is not attested by such person as mentioned therein, the arresting officer shall convey the information of the arrest to his relative or friend to whom accused intends to convey the intimation of his arrest. The object of inserting Section 41B in the Code of Criminal Procedure by way of Amendment Act 5 of 2009 w.e.f November 1, 2010 is to inform the family member or relative/well-wisher of the accused so that they can take appropriate steps to protect the statutory and constitutional rights of the accused. Implementation of this provision in its letter and spirit may prevent an unscrupulous police official to violate the constitutional and statutory right of the accused. Thus, this provision is not an ornamental but a mandatory in nature, thus every police official is duty bound by law to comply with the same in its letters and spirit.
27. Similarly, from bare perusal of Section 41D makes it clear that whenever any person is arrested and he is interrogated by police, legislature has cast duty upon the arresting officer that accused shall be entitled to meet with his advocate of his choice during interrogation but the said advocate has no right to be present throughout the interrogation. The SC No. 09/14 Page 14 of 26 State Vs. Dashrath Sharma main object of Section 41D is to obtain legal advice from a legal brain to protect his constitutional and statutory rights. Section 41D is also inserted in the Code of Criminal Procedure by way of Amendment Act 5 of 2009 w.e.f November 1, 2010 and the provision is mandatory in nature.
26. Now coming to the question as to whether in the instant case investigating officer had complied with the said provisions of Section 41B and Section 41D of Code of Criminal Procedure or not.
27. Prosecution has set up a case that intimation of arrest was given to the wife of accused. Admittedly, arrest memo Ex. PW5/B is signed by PW6 SI Suresh Pal and const. Satender (PW5). Since the arrest memo is not attested by any family member of the accused, it was the duty of the arresting officer to inform the relative/friend of the accused about his arrest. PW5 constable Satender deposed that he did not see Rubina at the spot at any point of time and further deposed that when he put his signature on the arrest memo Rubina was not present there and further deposed that he did not know who called Rubina in the police station but swiftly added that investigating officer must have sent the intimation to the wife of accused. PW6 in his cross-examination deposed that he did not know how intimation of arrest was given to the wife of accused. PW7 SI Lalita Rawat deposed that beat constable might have known the wife of accused but she did not remember to whom she sent to call the wife of accused and she did not know how his wife was called but deposed that she called her. From the testimony of PW5 to PW7, it becomes clear that they failed to depose how the wife of accused was called in the police station; they also failed to depose who was sent to call the wife of accused. It is admitted case of prosecution that wife of accused was not present at the spot. Since, the witnesses failed to depose how the wife of accused was called in the police SC No. 09/14 Page 15 of 26 State Vs. Dashrath Sharma station, testimony of PW7 to the extent that she called the wife of accused in the police station and informed her about the arrest of accused does not inspire any confidence. Further, the signature or thumb impression of Rubina was also not taken on the arrest memo of the accused Ex. PW5/B to show that the intimation was given to her. If she had visited the police station in night, investigating officer should have recorded a daily diary in the Rojnamcha register to the effect that his wife had visited the police station and intimation of arrest was given to her. But no such entry was made. Thus, to my mind, PW7 did not adhere to the provisions of Section 41B in its letters and spirit.
28. Similarly, investigating officer had not complied with the provisions of Section 41 D and she candidly admitted in her cross- examination that she did not comply with the provisions of Section 41D Cr.P.C at the time of recording of disclosure statement of the accused. Though PW6 deposed that investigating officer had informed the accused that he was not bound by law to confess his guilt before the police and also told him that he had a right to consult his advocate and accused told the investigating officer that he could not arrange the advocate; nor he knew any person. But simultaneously he also admitted that accused was a beggar and despite that he and investigating officer did not think how accused would arrange an advocate in night. It is beyond imagination how PW6 could expect from a beggar to arrange an advocate in night. This shows that PW6 did not hesitate to make a false statement in the Court. On the contrary, conduct of PW7 is appreciable because at least she has dare to admit her fault.
29. Since, the accused was not informed about his statutory right as provided under Section 41D of Code of Criminal Procedure, I am of the SC No. 09/14 Page 16 of 26 State Vs. Dashrath Sharma view that no reliance can be placed on the information disclosed by the accused by way of his disclosure statement. Moreover, in the instant case, the disclosure statement is otherwise inadmissible as the same is hit by Section 25 of Indian Evidence Act.
30. Now adverting to the testimony of sole star witness of the prosecution i.e. PW2. Prosecution has set up a case that complainant had made a complaint Ex. PW2/A to the police against the accused. Salient points of complaint Ex. PW2/A are as under:-
(A) That complainant was laying down at her theiya at Meena Bazar on December 10, 2012 at 6.30 PM;
(B) That her daughter aged about one year was playing near by her;
(C)That her daughter cried loudly. Accordingly, complainant saw that her daughter was in the lap of accused;
(D) That finger of accused was at the vagina of her daughter;
(E) That complainant had snatched her daughter from the accused:
(F)That complainant had given a push to the accused, consequently he fell down; (G) That public persons gathered there and they had beaten the accused mercilessly.
31. Firstly, I take first two points i.e. point (A) and (B).
32. In her complaint Ex. PW2/A, complainant alleged that she was laying at her theiya. But when she graced the witness box she did not SC No. 09/14 Page 17 of 26 State Vs. Dashrath Sharma support the prosecution case on several points including this one. Consequently, she was got declared hostile and she was cross-examined by learned Additional Public Prosecutor. During her cross-examination she denied the suggestion that she was laying down at her theiya. Accordingly, her allegation made in Ex. PW2/A to that extent was got confronted from her complaint Ex. PW2/A.
(i) During her examination-in-chief PW2 set up a new case by deposing that she was sleeping in a park at Meena Bazar and her daughter was playing there. In the mean time accused came there and asked her who had laid his blanket as she was sleeping on his blanket. She further deposed that she told the accused that the blanket was already laid on ground and she had just slept over the same and further told him that she would give blanket to him and thereafter, she started to sleep on his blanket. Thus, as per the testimony of PW2 she was not laying at her theiya rather she was laying on the blanket of accused. During the cross- examination conducted by learned defence counsel, the above said testimony of PW2 was duly got confronted with her complaint Ex. PW2/A. Admittedly, in her complaint, PW2 did not disclose that she was laying on the blanket of the accused or that she was laying on the theiya of the accused. Thus, by saying that she was laying at the blanket of accused, PW2 intended to set up a new case during her deposition which is not permissible in a criminal matter.
33. PW2 in her cross-examination clarified that the incident had taken place outside the park whereas her theiya was inside the park and the distance between her theiya and place of occurrence was about 5-10 paces. PW5 to PW7 deposed that complainant was sleeping at her theiya but their testimony is not supported by PW2 who categorically deposed that SC No. 09/14 Page 18 of 26 State Vs. Dashrath Sharma she was not sleeping or laying down at her theiya rather she was sleeping over the blanket of accused. Though PW2 was cross-examined by learned Additional Public Prosecutor but he did not dispute the testimony of PW2 wherein she deposed that she was laying down over the blanket of accused at his theiya. It means that prosecution has not disputed her testimony to that extent. As already stated that this was not the case of prosecution, thus no reliance can be placed on her testimony to that extent.
34. Now coming to the next two points i.e. point (C ) and (D) when her daughter cried loudly, she saw that her daughter was in the lap of accused.
35. Prosecution has set up a case against the accused through complaint Ex. PW2/A that victim was playing near the complainant and when she cried loudly all of sudden, complainant saw that her daughter was in the lap of accused.
36. PW2 in her examination-in-chief deposed that after telling the accused that she would give blanket to him, she started to sleep on her blanket. Accused had picked her daughter in his lap and when her daughter started crying, she got up. In her examination-in-chief, she did not clarify whether accused picked up her daughter as soon as she started to sleep or after some time. PW7 in her cross-examination deposed that during investigation, it was revealed that complainant was sleeping. Thus, she was not aware that accused had picked up her daughter and further deposed that complainant got up when her daughter cried. Thus, from the combined reading of PW2 and PW7, it can be safely culled out that accused had picked up her daughter when complainant was sleeping.
SC No. 09/14 Page 19 of 26(i) PW7 in her cross-examination further deposed that when complainant got up after hearing the scream of her daughter, the distance between complainant and her daughter was maximum 2-3 paces. Since, PW2 did not disclose about any such distance, there is no reason to disbelieve the testimony of PW7 when she deposed that the distance between complainant and victim was 2-3 paces. PW7 further admitted that this short distance shows that when accused picked up the victim, victim started crying and after hearing the scream complainant got up and saw that her daughter was in the lap of accused. PW7 further deposed that during investigation it was not revealed that accused used to play with the victim earlier also. It means that accused was stranger for the victim who was just one year old. PW7 further admitted that it is a tendency in most of the children of tender age that they start crying as and when any unknown person take them in his lap. It is common fact that most of the tots start crying as soon as some unknown tries tries to take them in his lap, thus, there is no reason to disbelieve the testimony of PW7 to that extent.
37. Now coming to the remaining points i.e. point (E), (F) and (G).
38. Prosecution has set up a case through complaint Ex. PW2/B that complainant got up and saw that victim was in the lap of accused and his finger was at her vagina, consequently, she had snatched the victim from accused and gave a push to the accused due to which accused fell down. But when PW2 graced the witness box, she did not support the prosecution case by deposing that when she got up, she saw that lungi of accused was down and her daughter was at his penis and further deposed that accused was not wearing any underwear. During cross-examination conducted by learned Additional Public Prosecutor, PW2 admitted that when she got up her daughter was in the lap of accused and finger of SC No. 09/14 Page 20 of 26 State Vs. Dashrath Sharma accused was at her sho-sho (vagina) but surprisingly learned Additional Public Prosecutor did not contradict PW2 to her statement that victim was at the penis of accused. In other words, the prosecution made an attempt to set up a new case that the victim was at the penis of accused as well as finger of accused was also at the vagina of victim. It is pertinent to state that in a criminal trial, it is the duty of prosecution to inform the accused about the nature of allegation, so that accused can defend himself. Prosecution cannot aback the accused by setting up a new case first time in the Court by alleging that victim was also at the penis of accused. Rather by deposing so, PW2 made the prosecution case doubtful even to the extent that finger of the accused was at the vagina of victim. It is pertinent to state that the victim cannot be at the penis of accused, if the finger of the accused was at her vagina.
39. Now coming to the next question what was accused wearing at the time of alleged incident?
40. PW2 in her examination-in-chief categorically deposed that accused was wearing a lungi at the time of incident and at that time his lungi was down. Though PW2 was cross-examined by the learned Additional Public Prosecutor, yet no question was asked about the apparel of the accused. In other words, prosecution did not dispute the fact that accused was wearing a lungi at the time of alleged incident. In her cross- examination, she further deposed that lungi was opened from front side. She further deposed that she did not state this fact before the police and further testified that lungi was not seized by the police. Thus, as per the testimony of PW2, accused was wearing lungi at the time of alleged incident and same was opened from front side. In other words, by saying that accused was wearing lungi, PW2 intended to say that it was possible SC No. 09/14 Page 21 of 26 State Vs. Dashrath Sharma for the accused to make the victim to sit at his penis.
41. But her testimony is not supported by PW7, investigating officer who categorically deposed that accused was wearing pant and shirt and he was not wearing lungi. Similarly, PW6 deposed that accused was wearing pant and shirt. Admittedly, PW2 did not allege in her complaint that accused was wearing lungi or that his lungi was down or that lungi was opened from front side. If accused was wearing lungi and it was opened from front side, complainant should have told the same to the police. But she did not tell the same. As already stated that both the sub-inspectors categorically deposed that accused was found wearing pant and shirt and not lungi. Thus, in these circumstances, the testimony of PW2 on this point also does not inspire any confidence.
42. If accused was wearing pant and shirt as deposed by PW6 and PW7, it further casts a doubt over the testimony of PW2 that victim was at the penis of the accused.
43. In order to justify lapses on her part, PW2 took the plea that she did not tell the police that victim was at the penis of accused because all public persons told her that her daughter would be medically examined and she would be died during the medical examination. But during her cross-examination, she admitted that she had given birth to five children, thus she knew very well that no one can die by medical examination. Though she deposed that Shamim and Binu besides other passers by told her about the same, yet no such person was brought in the witness box to corroborate her version. In these circumstances, it is seldom to rely on her version. Further, this shows that she had made a statement before the police after due deliberation and consultation with her well-wishers and SC No. 09/14 Page 22 of 26 State Vs. Dashrath Sharma even then she did not tell true facts before the police. This again casts doubt over her deposition.
44. Now coming to the issue in which position accused was, when PW2 got up.
45. PW2 in her cross-examination deposed that accused was sitting when she got up and at that time she saw that victim was at his penis. But again her deposition does not get any support from the investigating officer (PW7) who categorically deposed that as per the allegations levelled by the complainant, accused was in a standing position. It is pertinent to state that in her complaint Ex. PW2/A, complainant alleged that she snatched the victim and gave a push to the accused, due to which accused fell down. This shows that in her complaint, complainant intended to say that accused was in a standing position. Thus, it appears that PW2 deliberately twisted the facts in her deposition by saying that accused was in a sitting position to justify her version that victim was at the penis of accused. This further casts a doubt over her deposition.
46. PW2 in her cross-examination deposed that victim is feeling irritation while urinating. But also admitted that doctor did not give any medicine when she was medically examined. Assuming for the sake for arguments that victim was feeling irritation while urinating at the time when PW2 graced the witness box. But there is nothing on record which may even suggest that the said irritation was due to the alleged incident. Further, it is also pertinent to state that complainant is a rag-picker/beggar and used to live at pavement. It means that she and her daughter were not residing at a hygienic place. It is pertinent to state that unhygienic condition is one of the common causes of irritation in urine. Thus, in the absence of SC No. 09/14 Page 23 of 26 State Vs. Dashrath Sharma any cogent evidence, no adverse inference can be drawn that the irritation was due to the alleged incident.
47. In the light of above discussion, now question arises as to whether the testimony of PW2 is sufficient to record conviction or not?
48. In this regard, Section 134 of Indian Evidence Act is relevant and same reads as under:
"134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact.
(emphasis supplied)
49. It is well settled law that court has to see the quality of evidence and not the quantity of evidence. Thus, conviction can be recorded on the testimony of a single witness provided his/her testimony is trustworthy. And if the sole testimony is not trustworthy, it must be corroborated on material aspects from other sources. In the instant case, I am of the considered opinion that the testimony of PW2 in itself is not suffice to record conviction without any corroboration on material aspects. Since, the testimony of PW2 does not get corroboration from any source; on the converse her deposition is not supported by the investigating officer on material aspects and PW2 made substantial improvements in her deposition affecting the core of prosecution case, thus, in my view, no reliance can be placed on her deposition.
50. The Court is not oblivious about Section 29 of the POCSO Act wherein a presumption lies in favour of prosecution. But presumption is rebuttable and it is well settled law that accused can rebut the presumption SC No. 09/14 Page 24 of 26 State Vs. Dashrath Sharma by referring to the evidence or material produced by the prosecution. Accused is not required to lead any independent evidence to rebut the presumption. In the instant case, I am of the considered opinion that accused has succeeded to rebut the presumption by referring to the evidence led by the prosecution. Thus, section 29 of POCSO Act is also not helpful to the prosecution to bring home the guilt of accused beyond the shadow of all reasonable doubts.
51. PW7 in her deposition categorically admitted that accused had sustained grievous injuries and on the statement of accused a separate case was registered against the complainant and her husband. Accused in his statement under Section 313 Cr. P. C took the plea that he was beaten by the complainant and her husband by an iron rod and bleeding started from his head and he had sustained multiple injuries. PW2 in her deposition also admitted that accused was also beaten by her and her husband and also swiftly added that accused was also beaten by public persons. But the fact remains that accused was beaten severally and he had sustained grievous blunt injuries. Despite that prosecution did not deem it appropriate to file the copy of MLC of the accused on record. It is also pertinent to state that accused was not beaten by the complainant or her husband or by the public to save the victim from him; rather he was beaten after snatching the victim from him. It means that neither complainant nor her husband could take the shelter of right of private defence while giving beating to the accused as at that time there was no apprehension to the life of victim.
52. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused beyond the shadow of all reasonable doubts, thus, I hereby acquit SC No. 09/14 Page 25 of 26 State Vs. Dashrath Sharma the accused Dashrath Sharma for the offence punishable under Section 10 of the POCSO Act.
Announced in the open Court
on this 22nd day of September (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI/sv
SC No. 09/14 Page 26 of 26