Delhi District Court
The State vs . on 6 January, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 27/16 (Old No.)
56189/2016 (New No.)
FIR No.: 868/15
PS : Anand Parbat
U/S : 376/506 of IPC & Sec.6 of POCO Act
The State
(Govt. of NCT of Delhi)
Vs.
Om Parkash Pandey
S/o Late Sh. Kamla Pandey,
R/o House no. 2087/24 AB, Gali no.21,
Nehru Nagar, Prem Nagar, Anand Parbat,
New Delhi.
...... Accused
Date of Institution : 25.01.2016
Date of arguments : 06.01.2017
Date of judgment : 06.01.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered on the complaint of the prosecutrix 'N' (presumed name of the prosecutrix) Ex.PW1/A, wherein, who has stated therein that she studies in 8th class in the Government School, Prem Nagar, and her mother has already been expired during the delivery of her younger brother, and she resides in her house along with her father and her elder brother 'AP' (presumed name of elder brother of prosecutrix) and her younger brother lives in the village in the house of her Mausi. She has alleged that she has told to her class teacher 'SK' that her father was forcibly doing GANDA KAAM with her for last about 2months and FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 1 of 8 also stated that 'MERE TOILET WALI JAGAH MAIN APNI TOILET WALI JAGAH DAALTA HEIN and for the last many days, her health has deteriorated and she was feeling pain in her stomach & she was also vomitting & she was feeling nervous & her father has also threatened her, in case, she would disclose about the incidents to any person, he would kill to the prosecutrix. But, this prosecutrix told to her grandmother and also to her elder brother, who had quarrled with her father (who is accused in the present case). About one week prior to the registration of this case, grandmother of this prosecutrix has also made understand to this accused, so, he did not do any GANDA KAAM with her for one week, but, at the time of filing of this complaint, she was not well & she was not going to her school & when she again went to her school, then her teacher 'SK' asked about the reason of not coming to school and she has narrated all the incidents. She has also alleged that this accused, who is her father, had done GANDA KAAM with her for the first time in her village Baksar, when they had gone on the demise of her grandfather & this prosecutrix felt pain & she also wept and also stopped to her father, as she was feeling pain in her vagina, but, the accued scolded her & she was also threatened to be killed. On returning at Delhi, this accused is also alleged to have done GANDA KAAM with her daily & she has also alleged that her teacher 'SK' has also told to another teacher 'S', who called to the police & she had written everything in a letter & stated that accused should be handed over to the police, as she is not menstruating for about 2months and her grandmother had taken her for treatment in the hospital. On such complaint of the prosecutrix dated 17.12.2015, which is Ex.PW1/A, the FIR was registered u/s 376/506 IPC & Sec.6 of POCSO Act and the accused was arrested by the police on 18.12.2015 & since then, he is behind bars.
2 The Investigating Officer has investigated the case and she had also recorded the statements of the witnesses of prosecution and on completion of the investigation, the chargesheet was filed U/s 376/506 IPC and Sec. 6 of POCSO Act. Copy of charge sheet & CD were supplied to the accused and on finding of the primafacie case, the charges U/s FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 2 of 8 376/506 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for the evidence of the prosecution for today.
3 In order to prove its case, prosecution has examined one witness i.e. the prosecutrix today in the Court.
4 Prosecutrix 'N' has been examined as PW1. She has deposed that she was not studying in any school in December, 2015 & she was only going for tuition in Baliya in Uttar Pradesh. She has admitted that Sandip Kaur, Teacher had taught her. She was shown her complaint dated 17.12.2015, which is Ex.PW1/A, on the basis of which the FIR was registered, & she has identified her signature thereon at point A. She has deposed that "EK SUSHILA MADAM MERI CLASS TEACHER SANDIP KAUR KE SAATH AAYI THI USNE EK KAGAZ PAR LIKHA THA PHIR MUJHE USKI COPY KARNE KE LIYE KAHA THA AUR MENE USKI COPY KAR DI THI JO KI AAJ MUJHE DIKHAYI GAYI HAI JO KI EX.PW1/A HAI. She has also deposed that "MUJHE USS SCHOOL KA NAAM NAHI PATA PAR WOH SARKARI SCHOOL MERE PADOS ME THA". She has also deposed that she was also studying in 8th class in that school, in which, Sushila and Sandip kaur were teaching, and further deposed that in the month of December, 2015, she was living in Delhi along with her father & her brother and when Ld. APP for the State has asked the categorical question that whether her father Om Prakash Pandey had ever done any Galat Harkat with her, she has categorically denied & stated that "MERE PAPA BAHUT ACHCHHE AADMI HAI". Since, this witness has resiled from her previous statement, so, Ld. APP for the State had sought permission to crossexamine this witness. After hearing, this witness was declared hostile & the Ld. APP for the State, was allowed to cross examine this witness. During her crossexamination by the Ld. APP for the State, she has denied that her father had been doing wrong act with her forcibly prior to the lodging of FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 3 of 8 present FIR or that he used to insert his penis in her vagina. She has also denied that her father used to threaten her to kill her, if she would disclose about the incident to any person. She has admitted that the lady Magistrate had recorded her statement U/s 164 of Cr.PC, which is Ex.PW1/B, and she has correctly identified her signature thereon, but, at the same time, she has admitted it to be correct that she had gone to village along with her father and brother, but she has denied that her father had raped her in the village. She has also denied that she had told to her grandmother that accused had raped her or that her Dadi rebuked her father i.e. accused on the same issue or that her father told to her DADI "AB NAHI KARUNGA" or that she had also told to her brother about the same issue or that her brother had quarreled with her father. She has also denied that she is deliberately not deposing the correct facts since accused is her father. This witness has also been cross examined by Ld. Counsel for accused and during her crossexamination by Ld. Counsel for accused, she has admitted it to be correct that she has never been raped by accused, who is her father. She has also admitted it to be correct that she has never been threatened by the accused, who is her father. She has also admitted it to be correct that she had planted the false case on her father at the instance of some other person & further admitted it to be correct that she had given her statement Ex.PW1/B under the influence of some other person namely Arjun and that person had also assured her to marry with this prosecutrix.
5 I have heard the Ld. Counsels for the parties.
6 After crossexamination of this witness, Ld. APP for the State has submitted that he wants to drop the name of witnesses, which are the brother of prosecutrix, grand mother of prosecutrix and Ms Sandeep Kaur & Ms Sushila (teachers of prosecutrix) from the list of witness and submitted that the matter may be adjourned for remaining evidence of the prosecution, whereas, Ld. Counsel for accused has vehemently opposed the submission of Ld. APP for the State and submitted that since, the prosecutrix, who is also FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 4 of 8 the complainant, has categorically stated that she has never been raped or threatened by the accused, so, nothing survives in the present matter, so, it will be futile to adjourn the matter for remaining evidence of the prosecution and prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
7 Since, the prosecutrix has been examined & crossexamined today and the perusal of the record shows that, in the case in hand, FIR was registered on the complaint of this prosecutrix and she has failed to failed to support the case of prosecution and deposed that she has never been raped or threatened by the ccused, who is her father, so, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if remaining witnesses of the prosecution are allowed to be examined.
8 Since, nothing incriminating evidence has come on the record against the accused Om Prakash Pandey, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
9 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 5 of 8 and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
10 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 6 of 8 the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
11 Since, in case in hand, the FIR was registered on the complaint of the prosecutrix i.e. PW1, wherein, she has alleged that she was subjected to repeated aggravated penetrative sexaual by accused, who is her father, and who has also threatened her to be killed, but, at the time of recoding of her evidence in this court, she has failed to support the case of prosecution as during her crossexamination by the Ld. APP for the State, she has denied that her father had raped her or intimidated her. She has admitted that a lady Magistrate had recorded her statement U/s 164 of Cr.PC, which is Ex.PW1/B, and she has correctly identified her signature thereon, but, she has deposed that the said statement was given by her at the instance of Arjun, who had asked her to depose against accused and she has admitted it to be correct that she had gone in the village along with her father and brother but she has denied that her father had raped her in the village. She has also denied that she had told to her grandmother that accused raped her or that her Dadi rebuked her father i.e. accused on the same issue or that she had also told to her brother about the same issue or that her brother had quarreled with her father.
FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 7 of 8She has also denied that she has deliberately not deposed the correct facts since accused is her father. Thus, the testimony of the prosecutrix is found to be contradictory & inconsistent with her complaint Ex.PW1/A and her previous statement recorded u/s 164 of Cr.PC Ex.PW1/B. 12 So, taking into consideration the material inconsistencies & contradictions in the testimony of the prosecutrix (PW1), her complaint and her statement recorded u/s 164 of Cr.PC, this court is inclined to hold that the testimony of PW1 is inconsistent, suspicious, unreliable, doubtful & untrustworthy, so, the same does not inspire any confidence, and since, the charges against this accused were framed u/s 376/506 of IPC & Sec.6 of POCSO Act, and the prosecutrix has admitted, when crossexamined in this Court, that she has been never been raped or threatened by this accused Om Prakash Pandey, who is her father. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 376/506 of IPC & Sec.6 of POCSO Act beyond reasonable doubt and story of the prosecution is doubtful & the benefits of doubt are given to accused. Accordingly, accused Om Prakash Pandey is acquitted of the charges framed against him. The accused Om Parkash Pandey is ordered to be released on furnishing the bail bond in the sum of Rs.10,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 06.01.2017 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
FIR No.868/15 PS Anand Parbat State Vs. Om Parkash Pandey Page 8 of 8