Delhi District Court
Prosecution vs Sher Singh on 15 May, 2017
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE+1/ SPECIAL JUDGE
(POCSO), SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
FIR No. : 286/13
Under Section : 363 IPC & 8 POCSO Act
Police Station : Farsh Bazar
Sessions Case No : 172/2016
In the matter of :
State
...........Prosecution
VERSUS
Sher Singh
S/o Sh. Omkar
R/o B-211, New Sanjay Amar Colony
Shahdara, Delhi
.............. Accused
Date of Institution : 13-08-2013
Date of reserving judgment : 15-05-2017
Date of pronouncement : 15-05-2017
JUDGMENT
1) Accused Sher Singh was sent up for trial by the police of Police Station Farsh Bazar for the offences punishable under Section 363, 365, 342 of Indian Penal Code, 1860 (herein after referred to as "IPC" in short) and under Section 8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO" in short) on the allegations that on 11.07.2013 FIR No. 286/2013, PS : Farsh Bazar Page 1 of 20 2 father of the victim came to the police station and got his statement recorded regarding missing of his daughter aged about 13 years who had gone to school at 7:00 a.m. and at about 8:45 a.m. he received telephone from the school that she had gone to house to collect the ID card but thereafter she did not return to the school. On the basis of the same, an FIR for offence punishable under S. 363 IPC was registered. On 12.07.2013, the complainant alongwith his wife came to the police station and stated that their daughter has been enticed by accused Sher Singh to his village. Thereafter police team reached at the village of accused, where the house of the accused was found locked and subsequently the villagers produced the accused and the victim before the local police station of the village. Medical examination of the victim was got conducted. The victim and her mother refused for her internal examination. Her statement under S. 164 Cr.PC was got recorded wherein she has stated that accused had forcibly taken her to his village to the house of his Tai (aunt) and confined her in a room where police apprehended the son of village pradhan and thereafter his mother left her at the police station where her parents alongwith police came and taken her to Delhi. Subsequently offence under Section 365/342 IPC was also added and Section 8 of POCSO was also added on the direction of CWC Chairperson as the victim has made statement regarding sexual assault by the accused.
FIR No. 286/2013, PS : Farsh Bazar Page 2 of 203
2) Accused was supplied with the necessary copies and my Ld. Predecessor vide order dated 07-09-2013 charged the accused for the offences punishable under sections 363 IPC, 342 IPC and 8 POCSO Act, to which he pleaded not guilty and claimed trial.
3) The prosecution in support of its case, examined as many as 11 witnesses.
4) The prosecution examined the following material witness:-
i. PW-1 (name withheld as she is minor) is the victim / prosecutrix. She proved her statement under Section 164 Cr.PC as Ex.PW-1/A and her MLC as Ex.PW-1/B (It should be Ex.PW-1/D.). Initially she did not identify the accused, however, later on identified him and stated he is the same person who had taken her at Bareily.
ii. PW-2 Sh. Jain Chand, is the father of the victim, proved his statement made to the police as Ex.PW-2/A, custody memo of his daughter as Ex.PW-2/B, arrest memo Ex.PW-2/C and personal search memo Ex.PW-2/D. iii. PW-3 Smt. Raj Kumari is the mother of the victim.
5) The prosecution also examined the following witness regarding age of the victim.
i. PW-7 Sh. Raj Kumar, Lab Assistant, Sarvodya Kanya FIR No. 286/2013, PS : Farsh Bazar Page 3 of 20 4 Vidyalaya Vishwas Nagar, proved the copy of admission register Ex.PW-7/A, photocopy of birth certificate of MCD as Ex.PW-7/B and photocopy of admission form as Ex.PW-7/C.
6) The prosecution also examined the following formal witnesses:
i. PW-4 ASI Fateh Mohammad is the duty officer who recorded formal FIR of this case. He proved his endorsement on the rukka as Ex.PW-4/A and copy of FIR as Ex.PW-4/B. ii. PW-6 Ct. Ajay Kumar is the witness who handed over the the original rukka and copy of FIR to the IO at the spot after registration of the FIR.
iii. PW-9 Dr. Sikha Gupta proved the signature of Dr. Nupur Garg on the MLC Ex.PW-1/D of the prosecutrix/ victim.
iv. PW-11 Metropolitan Magistrate recorded statement of the prosecutrix u/s 164 Cr.PC. and in addition to other, she proved her certificate regarding correctness of statement Ex.PW-11/A and order regarding supply of copy of the statement to the IO as Ex.PW-11/B and application of the IO for recording statement as Ex.PW-11/C and application for supplying copy of statement as Ex.PW-11/D. v. PW-6 W Ct. Sonika is the witness who brought the victim to the KKD Court for recording her statement u/s 164 Cr.PC.FIR No. 286/2013, PS : Farsh Bazar Page 4 of 20
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7) The prosecution also examined the following witnesses of investigation:
i. PW-5 Ct. Manoj Kumar is the witness regarding recovery of the victim and arrest of accused.
ii. PW-8 Ct. Jitender is also witness of arrest of accused but from Delhi.
iii. PW-10 is the investigating officer. He in addition to other documents proved his endorsement on the statement as Ex.PW-10/A and site plan as Ex.PW-10/B.
8) After conclusion of prosecution evidence, the statements of accused was recorded under section 313 Cr.PC wherein he denied the prosecution evidence. He stated that the police officials detained him in the police station at Delhi and made him to sign some blank documents forcibly, which were later on used against him. He further stated that this is a false case and he had been falsely implicated in this case by letting off Pradhan of the village and his son. He is innocent and not involved in the present case. He stated that he would lead evidence in his defence, however, later on chose not to lead evidence in his defence.
9) I have heard Sh. S. K. Tripathi, Ld. Addl. P.P for State and Sh. Gautam Pal, Advocate, Amicus Curiae for accused. I have also gone through the record.FIR No. 286/2013, PS : Farsh Bazar Page 5 of 20
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10) Firstly, it is worthwhile to have overview of legal provisions and in the light of the legal provisions, facts shall be discussed.
11) Section 29 of the POCSO, provides presumption for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9, where the Special Court shall presume the commission of such offences unless the contrary is proved.
12) Section 30 provides the presumption regarding culpable mental state. The Special Court shall presume the existence of such mental state. However, the accused in his defence can prove that he has no such mental state with regard to such charge.
13) Section 42 provides if the commission of offence is punishable under this Act or also under any other law for the time being in force, the offender shall be liable to be punishment which provides punishment greater in degree.
14) The accused in this case has been charged for the offence punishable U/s 8 of POCSO. It is worthwhile to mention that the presumption is given for offence under sections 3, 5, 7 and
9. These are the sections which define the offence and are not punishing sections.
15) Section 2(d) of POCSO, defines, the "child" means any person below the age of 18 years.
16) The Hon'ble Supreme Court in case of K. Venkateshwarlu v.
FIR No. 286/2013, PS : Farsh Bazar Page 6 of 207 State of A.P., (2012) 8 SCC 73 held that the evidence of the child witness has to be subjected to closest scrutiny. To quote :-
9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion.
Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it.
17) Therefore, firstly, I shall examine the issue regarding the age of the victim to find out whether POCSO Act is attracted to the present case. PW-1 victim stated that her date of birth is FIR No. 286/2013, PS : Farsh Bazar Page 7 of 20 8 09.10.2000. PW-2 and PW-3, parents of the prosecutrix also claimed that their daughter was 13 years of age. PW-7 Lab Assistant, Sarvodaya Kanya Vidyalaya, stated that as per school record date of birth of the prosecutrix is 09.10.2000. He proved attested copy of admission form as Ex.PW-7/A, photocopy of birth certificate of MCD given by parents of the prosecutrix at the time of her admission as Ex.PW-7/B and photocopy of admission form as Ex.PW-7/C. Similarly as per MCD record her date of birth was 09.10.2000. There is no cross-examination on this aspect and therefore I take date of birth of the prosecutrix as 09.10.2000 and accordingly as on date of occurrence i.e. 11.07.2013, she was about 13 years of age.
18) The offence is defined under S. 7 punishable under S. 8 of POCSO Act. As per Section 29, there is presumption of commission of the offence. In the light of legal position lets examine the testimony of the witnesses. PW-1 victim was aged about 13 years when she was examined on 03.10.2013. My Learned Predecessor after ascertaining her competence, recorded her statement. When accused was shown to her, she stated that she does not know the accused. She stated that on 11.07.2013, at about 7:00 a.m. she was present in her school when she had gone to collect her ID card from her house. She stated she does not know who made her unconscious and she was in a house in a village at Bareily when she regained her FIR No. 286/2013, PS : Farsh Bazar Page 8 of 20 9 senses. At that place Taai (aunt) of Sher Singh was present and Sher Singh was also present there and he had detained her forcibly in a room. She stated that he pressed her breasts and kissed her. Thereafter, her parents alongwith police came there and brought her to Delhi. She narrated the facts to the police. She stated that earlier also she came to the court and her statement was recorded.
19) She stated that she knew Sher Singh as he used to come after her when she used to go to attend the tuition classes and she recognized said Sher Singh. She stated that the person who was shown to her in the beginning was Sher Singh. He is the same person who had taken her at Bareily.
20) In her cross-examination, PW-1 stated that she cannot tell father's name of the accused and name of his Taai nor the name of village of Taai and voluntarily stated that it is in Bareily. She admitted that she had stated to the doctor that village Pradhan had kept her in detention in a temple and police had recovered her from the temple in Bareily from where she was brought to Delhi. She could not tell the name of village Pradhan and he was also brought to the police station. She does not know whether the village Pradhan also has a son. She denied the suggestion that she had gone to Bareily at her own free will. She admitted that temple does not belong to accused Sher Singh. In answer to the question that she was not kept in detention at any FIR No. 286/2013, PS : Farsh Bazar Page 9 of 20 10 other place except the temple, she stated that she was kept in a house. In response to the court question, she stated that she was recovered from the house of Taai (aunt) of accused Sher Singh and can she tell who is said Sher Singh, she stated 'No'. In reply to the question that she was shown a person today who is called Sher Singh and is it the same Sher Singh, she answered 'Yes'. She further replied to the court question that she had not identified the Sher Singh in the beginning and now she was saying that he is the Sher Singh and why she had declined to identify him in the beginning, she answered aise hi keh diya tha (stated so casually). She denied the suggestion that name of the accused was given at the instance of police. However, she admitted that she did not meet police after her medical examination.
21) Now coming to arrest and recovery. PW-2 father of the victim testified that on 12.07.2013, one unknown person informed him and his wife that their daughter was taken by one Sher Singh to his village Ratuiya, PS Avla, Distt. Bareli, U.P. He immediately informed the police. Police took him and his wife to the said village where house of Sher Singh was found locked and then they returned back to local PS there. On the next day i.e. 13.07.2013, the villagers produced accused Sher Singh and their daughter in the local PS. Thereafter, they all including accused and his daughter returned back PS Farsh Bazar, Delhi. Her FIR No. 286/2013, PS : Farsh Bazar Page 10 of 20 11 daughter was under fear, nervous and was not in a position to tell anything. Police prepared custody memo Ex. PW-2/B of her daughter and police arrested accused Sher Singh. He identified the accused Sher Singh.
22) PW-3 Raj Kumari similarly corroborated her husband regarding information given by one unknown person and in the manner accused and daughter was produced at the local police station and their return to PS Farsh Bazar. She also identified the accused Sher Singh.
23) PW-5 Ct. Manoj Kumar testified that on 12.07.2013 he was posted as constable at PS Farsh Bazar and joined the investigation of the present case with ASI Jai Veer Singh and police team went to Bareily in search of prosecutrix as well as accused. Parent of the victim accompanied them to Bareily. The police team straight away went to PS Amla, District Bareily U.P. and local police was also joined from there. They reached village Rehtuiya and Pardhan of the village was also joined in the investigation and they reached at the house of accused in the said village and same was found locked. On the next morning the villagers of Rehtuiya produced prosecutrix as well as accused at PS Amla and arrested was arrested. He also identified the accused Sher Singh.
24) PW-10 SI Jaibir Singh also corroborated other witnesses regarding receipt of information and stated that on 12.07.2013 FIR No. 286/2013, PS : Farsh Bazar Page 11 of 20 12 while he was present in the police station, complainant came to the police station and stated that victim has been kidnapped by one Sher Singh who had taken her to village and he alongwith parents of the victim went to Bareily in search of the victim as well as accused and reached PS Awala, Dist. Bareily. The local police was also joined from the PS and thereafter the raiding team reached Rehtuiya where house of accused was found locked. They returned to local police station. In the police station the villagers produced the victim as well as accused and both them were brought at PS Farsh Bazar, Delhi where he arrested accused. On 14.07.2013 the victim was brought to the police station and sent to hospital for her medical examination she refused for her internal medical examination and thereafter her statement under S.164 Cr.PC was recorded. Thereafter further offence punishable under S. 365 / 342 IPC were added. In the supplementary statement made to the police, the victim had told that accused had caught hold from behind and also kissed her and hence Section 8 POCSO Act was also added. Accused was re-arrested on 16.07.2013, as he was released earlier prior to attraction of provisions of POCSO.
25) It is submitted by Ld. Defence Counsel that victim has not given any supplementary statement to the police as, as per statement of the victim, she has not met with the police after her medical examination and therefor same is planted by the investigating FIR No. 286/2013, PS : Farsh Bazar Page 12 of 20 13 officer. He further stated that attendance sheet of the school was not seized by which it could have been proved that she had gone to the school or not, nor CCTV footage was taken. It is further stated that the victim has stated before the doctor that she was confined in a temple by village Pradhan whereas in her statement recorded under S. 164 Cr.PC she stated that she was confined in a room and police had arrested son of Pradhan and then his mother left her to the local police station. Therefore, the version of the victim is inconsistent and is not reliable and the story of arrest and recovery is also not reliable. It is further submitted that presumption against accused will not arise as the victim in her both statement, made before the learned metropolitan magistrate as well as before the doctor has not stated anything about sexual assault and the statement made before the court for the first time cannot be relied upon.
26) Firstly, I shall taken up regarding application of Section 8 of POCSO Act. The victim in her statement made before the court had stated that accused had detained her in a room and forcibly pressed her breast and kissed her but in her statement recorded under S. 164 Cr.PC she has not stated anything regarding this. The testimony of the victim is also not consistent as when the accused was shown to her she refused to know him however, in her subsequent examination-in-chief she recognized him as the same person who had taken her to Bareily and when the court FIR No. 286/2013, PS : Farsh Bazar Page 13 of 20 14 put specific question to her as to why she had declined to identify him in the beginning, she stated that she had casually done so and therefore her statement to this effect that accused pressed her breast and kissed her cannot be believed and is unsafe to rely her testimony without corroboration and since there is no other witness of this event, it cannot be corroborated. Accordingly, I am of the opinion that prosecution has failed to prove the offence punishable under S. 8 POCSO Act against the accused beyond reasonable doubt and without reliable evidence it cannot be proved that accused had pressed her breast and kissed her and presumption against accused cannot be raised.
27) Now coming to the kidnapping and recovery of the victim.
PW-1 victim stated that on 11.07.2013, at about 7:00 a.m. when she had gone to collect her ID card from her house, she does not know who made her unconscious and when she regained her senses, she found herself in a house in a village at Bareily where Taai (aunt) of Sher Singh was present and Sher Singh was also present. Thereafter, her parents alongwith police came there and brought her to Delhi. In her cross-examination, PW-1 admitted that she had stated to the doctor that village Pradhan had kept her in detention in a temple and police had recovered her from the temple in Bareily from where she was brought to Delhi. However, she could not tell the name of village Pradhan and he was also brought to the police station. She also admitted that FIR No. 286/2013, PS : Farsh Bazar Page 14 of 20 15 temple does not belong to accused Sher Singh. In answer to the question that she was not kept in detention at any other place except the temple, she stated that she was kept in a house.
28) PW-2 father of the prosecutrix stated that on 11.07.2013, at about 07.00 a.m., his daughter (name withheld), aged about 13 years who was studying in class 8th left from the house for her school i.e. Sarvodaya Kanya Vidyalaya, Vishwas Nagar, Delhi and at about 08.14 a.m., while he was in the Ghazipur Subzi Mandi, he received a telephone call from the school that his daughter had gone to home for taking her I.D. card but did not return in the school. He reported the matter to police who recorded his statement. On 12.07.2013, one unknown person informed him and his wife that their daughter was taken by one Sher Singh to his village Ratuiya, PS Avla, Distt. Bareily, U.P. He immediately informed the police. Police took him and his wife to the said village where house of Sher Singh was found locked and then they returned back to local PS there. On the next day i.e. 13.07.2013, the villagers produced accused Sher Singh and their daughter in the local PS. Thereafter, they all including accused and his daughter returned back PS Farsh Bazar, Delhi. In his cross-examination, he stated that he left the police station Farsh Bazar in the evening at about 7:00 p.m. and at that time his wife and ASI Jaibeer Singh were with him and reached at Bareily in mid night. He admitted that the son or FIR No. 286/2013, PS : Farsh Bazar Page 15 of 20 16 mukhiya of village was arrested and voluntarily stated that as no one was met at the house of native village of accused. He stated that he had received her daughter from local police station and again said that his daughter was handed over to him in the morning. Accused was brought to the police station after few hours. They left village Anola on 13.07.2013 in the noon in same Qualis and reached PS Farsh Bazar, Delhi in the evening of 13.07.2013.
29) PW-3 Mother of the victim also corroborated her husband to the fact that her daughter and accused were produced in the local police station and house of the accused was found locked. In her cross-examination, she stated that her daughter did not tell him that she was kept in detention in any temple. Whereas she stated that in connection of this case, she did not go anywhere outside Delhi, however, it cannot be stated to be inconsistent as she had very categorically stated in her examination-in-chief that she alongwith her husband had gone to the village of the accused. Besides, PW-5 Ct. Manoj also stated that parents of the victim alongwith them went to Bareily. However, he stated that in his presence local police did not arrest son of Pradhan or Pradhan of the village.
30) PW-10 IO also stated regarding villagers had produced the accused as well as victim before the local police station. In his cross-examination, he stated that they reached PS Awala, FIR No. 286/2013, PS : Farsh Bazar Page 16 of 20 17 Bareily at about 6:10 a.m. and he joined the local police, however, did not record the statement of any of the police officials. The victim was produced by the villagers in the said police station. They made departure entry in the said police station regarding leaving for Delhi. He did not visit the temple of village. He did not know whether the village Pradhan and his son had come to the said local police station. He stated that the house of accused Sher Singh was found locked when they visited the village Rehtuiya. He denied the suggestion that accused is not resident of village Rehtuiya or that he has been falsely implicated in this case by him by exonerating the son of the Pradhan who had detained the victim in the temple.
31) Therefore, witnesses are consistently proved two facts that victim had gone to the school and when she returned back to take her ID she went missing and her missing report was lodged and thereafter they went to the house of the accused at village which was found locked and thereafter victim as well as accused were produced by the villagers at local police station. The victim had categorically stated that accused had confined her in a room and police had brought her from the house of taai (aunt) of accused Sher Singh. Accused was also found present there. Therefore the missing link as to who had kidnapped her and taken her to the village of the accused where accused had detained her and thereafter he alongwith victim were produced FIR No. 286/2013, PS : Farsh Bazar Page 17 of 20 18 by the villagers at local police station in the presence of parents of the victim, clearly gets filled by circumstances that it was accused Sher Singh who had taken victim from lawful custody of her parents and further she was kept in confinement thereby she was wrongful confined. Accordingly, I am of the opinion that prosecution has succeeded in proving the necessary ingredients of the offences punishable under S. 363 IPC and 342 IPC
32) Now coming to the defence of the accused Sher Singh. In her statement recorded under S. 313 Cr.PC he initially stated that he would lead evidence in his defence, however, later on chose not to lead evidence in his defence. He stated that the police officials detained him in the police station at Delhi and made him to sign some blank documents forcibly, which were later on used against him. He further stated that this is a false case and he had been falsely implicated in this case by letting off Pradhan of the village and his son. He is innocent and not involved in the present case.
33) The version that village Pradhan having detained the victim in temple has come from the history given by the victim to the doctor in the MLC. In the same history, it is mentioned that history of kidnapping by a male of around 22 years namely Sher Singh at 11.07.2013 at 7:00 a.m. from the school to some village Datiya, where she was kept locked in temple by a village FIR No. 286/2013, PS : Farsh Bazar Page 18 of 20 19 Pradhan. The history recorded by the doctors are not complete story given by the victim but gist of the same as he is not supposed to do so, his job is of treatment. It is case of the prosecution in fact that the villagers had produced the accused as well as victim before the police at local police station when the police had gone in search of the accused to his house which was found locked. It clearly shows that villagers apprehended the accused and victim when Delhi Police reached and in order to save themselves they get the accused as well as victim in a temple to avoid Delhi Police. However, this version cannot absolve the role of the accused Sher Singh who is the same person who had taken victim from Delhi and confined her at village. Accordingly I am of the opinion that prosecution has succeeded in proving offences punishable under S. 363 IPC and 342 IPC beyond reasonable doubt against accused Sher Singh.
34) As per discussion above, the prosecution has failed to prove the offence punishable under S. 8 of POCSO Act beyond reasonable doubt, however, succeeded in proving offences punishable under S. 363 IPC and 342 IPC against accused beyond reasonable doubt. Accordingly, accused Sher Singh stand acquitted for offences punishable under S. 8 of POCSO ACT and is convicted for offences punishable under S. 363 IPC and under S. 342 IPC.
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35) Let arguments be heard on the quantum of sentence. Announced in the open court today i.e. 15.05.2017 (GURDEEP SINGH) ASJ-1+SPL. JUDGE (POCSO) SHAHDARA/KKD/DELHI/15.05.2017 FIR No. 286/2013, PS : Farsh Bazar Page 20 of 20