Delhi District Court
State vs . Ram Kishan on 30 May, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 120/13)
Unique ID case No. 02404R0222772013
State Vs. Ram Kishan
FIR No. : 288/13
U/s : 377 IPC and 5 M/6 POCSO Act
P.S. : Mangol Puri
State Vs. Ram Kishan
S/o Roshan Lal
R/o House no. 33 A, F Block,
Mangol Puri, Delhi.
Date of institution of case 05.08.2013
Date on which, judgment has been reserved 30.05.2014
Date of pronouncement of judgment : 30.05.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that the accused is neighbour of victim child P and K. On 06.05.2013, Smt. Mohini, mother of victim child K, found child K missing from the house and while searching for him, when she reached near house no. 33A, M block, Punjabi Camp, Mangol Puri, she heard cries of her son coming from behind the closed door of the house. When, Smt. Mohini knocked at the door, she heard cries of more than one child and on this, she raised alarm, hearing which, people from neighbourhood collected there, broke open the door of the house and entered it. When they all entered the house of the accused, they S.C. No. 120/13 : State vs. Ram Kishan : Page 1 of 15 found that victim K and P were standing naked in the room and the accused had also removed clothes from his lower body and that there was a pornographic film playing on the T.V inside the room. The public persons switched off the television and caught hold of the accused. On inquiry, both the children told them that accused Ram Kishan had enticed them into his house on pretext of giving them chocolate and there, he removed clothes of both child K and P and also removed clothes from his lower body and committed wrong acts, more particularly detailed in complaint Ex. PW3/A. On hearing this, police was informed and after police came to the spot, Smt. Mohini, mother of the victim K gave her complaint Ex. PW3/A, pursuant to which, the present case was registered against the accused.
During the course of investigations, both the victim children were got examined at SGM Hospital and the samples taken from them, by the concerned doctor were also seized by the IO. The IO further arrested the accused and seized one television, one DVD and two C.Ds from his house. The accused was also got medically examined.
On 27.05.2013, IO got statement of both the victim children as well as their mothers recorded u/s 164 Cr.P.C. After completing the investigations, the charge sheet was prepared and filed in this court, through SHO, concerned.
2. After hearing the arguments on the point of charge, charges for the offences punishable under Section 5 (m) punishable u/s 6 of POSCO Act and 11 (iii) punishable u/s 12 of POCSO Act were framed against the accused Ram Kishan. An alternative charge u/s 377 was also framed against the accused. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
S.C. No. 120/13 : State vs. Ram Kishan : Page 2 of 15
3. In order to prove its case, prosecution has examined eight witnesses.
4. The PW1 HC Suresh Kumar is the duty officer. He deposed that he had recorded DD no. 66A on 06.05.2013, when he received call at about 8.12 pm that "ek admi ne do ladko ke saath galat kam kiya hai". He proved the copy of DD no. 66A as Ex. PW1/A and further deposed that he informed the SHO, PS Mangol Puri, about the said information and entrusted inquiry thereof to ASI Rajbir. The PW1 had also recorded the case FIR in the present case. He proved the computerized copy of the FIR as Ex. PW1/C and the endorsement made by him on rukka as Ex PW1/B. The certificate u/s 65 B of Indian Evidence Act was proved as Ex. PW1/D.
5. The PW2, Sh. Ajay Nagar, learned Metropolitan Magistrate, Delhi, had recorded the statement of both the victim children and their mothers u/s.164 Cr.P.C and proved the proceedings conducted by him in this regard as Ex.PW2/A to Ex.PW2/K i.e. the application filed by IO for recording of statement of prosecutrix as Ex.PW2/A ; the statement of victim children as Ex. PW2/B and Ex. PW2/G respectively ; the statements of the mothers of the victim children as Ex. PW2/E and Ex. PW2/J respectively ; the certificates given by him on the said statement as Ex.PW2/C, Ex. PW2/F, Ex. PW2/H & Ex. PW2/K respectively ; and the application filed by IO for supply of copy of the said statements as Ex.PW2/D.
6. The PW3 Smt. Moni, is the mother of the child K. She is also the complainant in the present case. This witness failed to support the prosecution S.C. No. 120/13 : State vs. Ram Kishan : Page 3 of 15 case and merely stated that on 05.05.2013, at about 7.00 pm, she was cooking food at home, while her son K, aged about 7 years was playing football in a ground near the house. She further stated that she suddenly heard noise of the children and came to know that while playing, the football of the children had gone inside the house of the accused Ram Kishan, who got angry and slapped the children including K, son of the complainant. The PW3 further stated that someone called the police and when the police reached the spot, her signatures were obtained on some blank papers and thereafter, the present case was registered against the accused and they all were taken to the PS. The PW3 identified her signatures on the complaint Ex. PW3/A, but denied the contents thereof. She also deposed regarding the medical examination of child K and P. She further identified her signatures on her statement u/s 164 Cr.P.C i.e. Ex. PW2/E and stated that she had told the correct facts to ld. M.M in her statement and that her complaint had been wrongly recorded by the police.
Since, the PW3 failed to support the prosecution case, she was cross examined at length by learned Addl. PP, wherein contents of her complaint Ex. PW3/A were put to her in details. However, she denied having stated to the police that on the day of the incident, she was searching for her missing son and when she reached at the house of the accused, she heard cries of her son coming from his house. She further denied that she knocked at the door of the house of the accused, on which, she heard cries of children coming from inside and that she raised alarm, hearing which public person came there and broke open the door and that they saw that both children P and K were standing naked in the room of the accused or that the accused was also standing there with clothes from his lower body removed. The PW3 also denied that at that time, a blue film was being S.C. No. 120/13 : State vs. Ram Kishan : Page 4 of 15 played on the television in the room of the accused and that on inquiry, both the children P and K told them that accused had enticed them into his room on pretext of giving them chocolate and there, he removed their clothes as well as his own clothes and put his private part in their mouth. The PW2 identified her signatures on site plan Ex. PW3/B, but stated that she did not remember, if the police had prepared the same in her presence.
7. The PW4, child K is one of the victim children in the present case. Keeping the tender age of the victim child (the victim child was aged about 7 years) in the mind, his statement was recorded in camera proceedings, in presence of her mother Smt. Moni and Ms. Swapna, proxy counsel for Ms. Shashi Jaiswal, counsel for DCW. Certain preliminary questions were put to him to ascertain his capability to understand the importance of speaking truth and also his capacity to understand the questions put to him and to answer them reasonably. After being so satisfied with his capacity and capability, his statement was recorded in questionanswer form, without oath and in the relevant portion of his statement, the victim deposed as under : Q. Beta batao kya hua tha ?
Ans. Hum football khel rahe the aur Ram Kishan uncle ke ball lag gayi thi.
Q. Phir kya hua ?
Ans. Phir police humme pakad kar le gayi thi.
Q. Phir kya hua ?
Ans. Aur kuch nahi hua.
S.C. No. 120/13 : State vs. Ram Kishan : Page 5 of 15
Ld. Addl. PP for the State also put some leading questions to the victim child K, in reply to which, he deposed as under : Q. Beta batao kya Ram Kishan uncle ne uss din apko aur Prince ko danta tha ?
Ans. Ha.
Q. Kya Ram Kishan uncle apko aur Prince ko apne
kamare me lekar gaye the ?
Ans. Nahi.
Q. Kya Ram Kishan uncle ne apke aur Prince ke sath koi
gandi baat kari thi ?
Ans. Nahi.
Q. Kya aap pehle bhi kabhi Court me aaye the ?
Ans. Ha. Mein ek uncle ke aaya tha aur unhe sab sach
sach bata diya tha. (It was observed that the statement of victim u/s. 164 Cr.P.C had been recorded by Sh. Ajay Nagar, learned MM). Q. Kya apne unn uncle ko bataya tha ki Ram Kishan uncle ne apko dantt kar kamare me bitha diya tha ?
Ans. Ha.
Q. Kya uss samay Ram Kishan uncle bhi kamare me
bethe the ?
Ans. Nahi.
Q. Kya aaj apko apki mummy ne bataya ki Court me aaj
kya bolna hai ?
Ans. Nahi, mein sach bol raha hu.
S.C. No. 120/13 : State vs. Ram Kishan : Page 6 of 15
8. The PW5 Smt. Ritu is the mother of victim P. She deposed that she was
working and that she generally returned back from work at about 8.00/8.30 pm and that she was staying at her parental house with her four children, including victim child P, who was about 8 years, as she was separated from her husband due to matrimonial disputes. She further deposed that on 06.05.2013, when she came back home, she came to know that her son P and child K, who was also residing in the neighbourhood had been made to sit in the house of accused Ram Kishan as football of the children had hit accused Ram Kishan, while they were playing with the same. She further stated that a quarrel ensued and that someone informed the police, who came to the spot and took both the children and the accused Ram Kishan to the PS. The PW5 also went to PS and was made to sign some blank papers. The PW5 stated that her statement was never recorded by the police and the police did not inquire anything from her. This witness was also crossexamined at length by learned Addl. PP, but nothing which could be of any aid to the prosecution, could be brought out from the said crossexamination.
9. The PW6, child P, aged about 8 years, is another victim child in the present case. Keeping the tender age of the victim child in the mind, his statement was recorded in camera proceedings, in presence of her mother Smt. Ritu and Ms. Swapna, proxy counsel for Ms. Shashi Jaiswal, counsel for DCW. Certain preliminary questions were put to him to ascertain his capability to understand the importance of speaking truth and also his capacity to understand the questions put to him and to answer them reasonably. After being so satisfied with his capacity and capability, his statement was recorded in questionanswer form, without oath and in the relevant portion of his statement, the victim deposed as under : S.C. No. 120/13 : State vs. Ram Kishan : Page 7 of 15 Q. Beta batao kya hua tha ?
Ans. Ek din mein, Karan aur mere dost park me football khel rahe the toh unnwale uncle ko ball lag gayi thi (witness pointed out towards the accused, who was sitting in the last row of chairs in the Court Room, from the design in the wooden partition).
Q. Phir kya hua ?
Ans. Uncle me humme thapar (slap) mara aur Karan ko aur mujhe apne ghar beetha liya. Kissi ne police ko phone kar diya.
Q. Phir kya hua ?
Ans. Police uss uncle ko aur humme pakad kar thane le gayi thi. Phir mummy aayi aur sign karke mujhe chhuda kar layi. Phir bus aur kuch nahi hua.
Q. Kya aap pehle bhi Court aaye the ?
Ans. Ha aaya tha aur andar kamare me uncle the. (witness is
referred about the proceedings conducted by Sh. Ajay Nagar, learned MM, u/s.164 CrPC).
Ld. Addl. PP for the State also put some leading questions to the victim child K, in reply to which, he deposed as under : Q. Beta batao kya Ram Kishan uncle ne uss din apko aur Karan ko danta tha ?
Ans. Ha aur chanta (slap) bhi mara tha.
Q. Kya Ram Kishan uncle apko aur Karan ko apne
kamare me lekar gaye the ?
Ans. Ha.
S.C. No. 120/13 : State vs. Ram Kishan : Page 8 of 15
Q. Kya uss samay jab Ram Kishan uncle apko aur Karan
ko kamare me lekar gaye the, toh kamare me television chal raha tha yah nahi ?
Ans. Nahi.
Q. Beta batao Ram Kishan uncle ne uss samay kya
kapade pehne huye the ?
Ans. Nahi pata.
Q. Kya Ram Kishan uncle ne apke aur Karan ke sath koi
gandi baat kari thi ?
Ans. Nahi.
Q. Kya uss samay Ram Kishan uncle bhi kamare me
bethe the ?
Ans. Ha.
Q. Kya aaj apko apki mummy ne bataya ki Court me aaj
kya bolna hai ?
Ans. Nahi, mein sach bol raha hu.
10. The PW7, ASI Rajbir Singh, deposed that on 06.05.2013, on receipt of DD No.66A, Ex.PW1/A regarding one person having committed wrong act with two boys at FBlock, near Shiv Mandir, Punjabi Camp, Mangolpuri, he along with Ct. Mantu reached at the spot at FBlock, Punjabi Camp, where PW3 Smt. Moni, w/o Vinod Kumar met him and he recorded the statement Ex. PW3/A of PW3, on the basis of which, he made his endorsement and prepared rukka Ex.PW7/A and handed it over to Ct. Mantu for getting the case registered, who accordingly went to PS. He further deposed that thereafter, he took both the victim child K and P to S.C. No. 120/13 : State vs. Ram Kishan : Page 9 of 15 SGM Hospital along with their respective mothers and got the victim children medically examined in the hospital. He further deposed about handing over of the pullandas containing exhibits and clothes of victim children, to him, by the concerned doctor and about seizure of the same vide separate seizure memos Ex.PW7/X (of victim K) and Ex.PW7/Y (of victim P). He further deposed that thereafter, from the hospital, he, Ct. Mantu, both victim children and their mothers again went to the spot at house No.33A, FBlock, Punjabi Camp, Mangolpuri and took into possession one television make LG and one DVD, on which word 'Santosh' was written, vide seizure memo Ex.PW7/B and that he also seized two CDs of blue film lying in the said room, after sealing the same with the seal of BD, in a white colour cloth pullanda, vide seizure memo Ex.PW7/C. He further deposed about arrest of the accused and proved his arrest memo as Ex.PW7/D and personal search memo Ex.PW7/E. He also proved the site plan, prepared by him at the instance of Smt. Moni, as Ex.PW3/B. He further deposed about the medical examination of the accused and about getting the statements of the victim children and their mothers recorded by Ld. M.M, vide his application Ex.PW2/A and about obtaining copies of the said statements vide application Ex.PW2/D. He also identified the case property i.e. T.V., seized by him as Ex.P1 and DVD as Ex.P2 and the C.Ds., as Ex. P3 and P4 respectively.
During his crossexamination, the PW7 deposed that when he reached at the spot, a crowd of more than 4050 persons was present and that he made inquiry from the public persons, however he did not record the statement of any witness as they refused to join the investigations. He further deposed that he did not take any action against those public persons as they had left without disclosing their names and addresses.
S.C. No. 120/13 : State vs. Ram Kishan : Page 10 of 15
11. The PW8 Dr. Bina had examined the victim children K and P on 06.05.2013, vide their MLCs Ex. PW8/A and Ex. PW8/B, respectively and deposed that on local examination, she did not find any fresh external injury on the person of the respective patients and that thereafter, the children were referred to SR Surgery and Forensic Department for opinion. She further deposed that on the same day, she examined the accused vide MLC Ex.PW8/C and on local examination, she found bruise over right side back portion present on the person of the accused.
During crossexamination, the witness termed it correct that the injury on the back of the patient Ram Kishan could not be corelated with the allegations of sexual assault by him.
12. After examining the above said witnesses, only two prosecution witnesses namely Ct. Sri Bhagwan and Ct. Mantu remain to be examined. Both these witnesses had joined post incident investigations and proceedings with the IO. However, since, the victim children as well as other public witnesses had failed to support the prosecution case, no fruitful purpose would have been served by examining these two witnesses. Accordingly, prosecution evidence was closed.
Further, considering that from the testimonies of PW4 victim K, his mother Moni/PW3, PW6 victim child P and his mother/PW5, nothing incriminating came on record against the accused, the statement of accused was also dispensed with for want of incriminating evidence.
13. Arguments have been addressed by learned defence counsel, for the accused as well as learned Additional PP for the State.
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14. Ld. Addl. PP has submitted that although, the victim children as well as their mothers have failed to support the prosecution case, they have done so under pressure from the accused and his family and it is prayed that accused be convicted of the charged offence.
15. On the other hand, learned defence counsel has contended that the prosecution has miserably failed to prove its case against the accused as none of its material witnesses have supported the version put forth by the prosecution and has prayed that the accused be acquitted.
16. I have heard the arguments put forward by ld. Addl. PP as well as learned defence counsel for accused Ram Kishan and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
17. In the present case, accused is alleged to have committed aggravated sexual assault upon the victim child K and victim child P at his house on 06.05.2013 at about 8.00 pm. He is further alleged to have sexually harassed the victim children by showing them indecent/pornographic films after having enticed them into his house on the pretext of giving chocolate to them. The prosecution has examined victim child K and P as PW4 and PW6, respectively. The relevant portions of their testimonies have already been reproduced at length hereinabove. From perusal of the said testimonies, it is apparent that neither of the two children have supported the prosecution case as regards the allegations of penetrative S.C. No. 120/13 : State vs. Ram Kishan : Page 12 of 15 sexual assault and/or sexual harassment against the accused. Even the mothers of both the children namely PW3 Moni and PW5 Smt. Ritu have denied that any incident, in which accused had committed penetrative sexual assault and/or sexually harassed their children had taken place. They merely stated that on the day of the incident, the football with which, the victim P and K were playing with their friends, went inside the house of the accused and hit him, due to which, he got angry and slapped both the children. Since, neither the victim children, nor their mothers have supported the case of the prosecution, has no legs to stand its case on. There are, however, several other lacunas in the case as put forth by the prosecution. In the first instance, it is apparent from the record that the victim children P and K were playing football with several other children from the neighborhood. None of the other children with whom, victim P and K were playing have been joined as witnesses in the investigations by the IO. Further, though, several public persons collected at the spot after the incident and are claimed to have witnessed pornographic picture playing on the television of the accused, none of the said public persons have been joined in investigations by the police. Nonjoining of other children and public persons in the investigations by the police does not stand explained by the prosecution in the present case.
18. Further, as per the case of the prosecution, when PW3 Moni reached the house of the accused, while searching for her son/victim K, she heard noise of her son coming from behind the closed door of the house of the accused. She then, knocked at the door of the house of the accused, upon which, she heard cries of children coming from the room of the accused, whereupon she raised alarm. After hearing the alarm, raised by PW3 Moni, other public persons collected at the spot S.C. No. 120/13 : State vs. Ram Kishan : Page 13 of 15 and entered the house of the accused by breaking open the door. Nothing has been placed on record by the IO to show that the door of the house of the accused had been damaged by the public persons to gain access inside his house. The television and the D.V.D alleged to have been seized from the house of the accused, have been produced before the court in an unsealed condition. On the other hand, two C.Ds, containing pornographic films, which are stated to have been seized from the spot vide seizure memo Ex. PW7/C, though produced in sealed condition before the court, do not prove the guilt of the accused, since the manner, in which, they are alleged to have been seized from the spot, by the IO, does not inspire confidence. Moreover, the public persons present at the spot, including PW3 Moni, have not been made a witness to the seizure memo Ex. PW7/C of the C.Ds. Even the seizure memo of the T.V and D.V.D i.e. PW7/B, bears signatures of police witnesses only. There is no explanation forthcoming as to why the public witnesses present at the spot, were not joined in the investigations, whereby the objectionable C.Ds and the T.V and D.V.D on which, they were being played, were seized by the IO. Thus, the entire proceeding, in which, the case property is alleged to have been seized by the IO, is liable to be viewed with doubt.
19. Moreover, perusal of the record shows that the victim children as well as their mothers have not supported the prosecution case, even in their statements u/s 164 Cr.P.C, which were recorded immediately after the incident and there is no explanation forthcoming from the prosecution as to why, the material public witnesses and the victims failed to support the prosecution case, from the very inception and this also creates a doubt as to version put forth by the prosecution. S.C. No. 120/13 : State vs. Ram Kishan : Page 14 of 15
20. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove its case against the accused, beyond the reasonable doubts. Accordingly, I acquit the accused Ram Kishan from the charged offence.
21. File be consigned to Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 30.05.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
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