Delhi District Court
Sc No. 312/17 State vs . Puran on 5 May, 2018
SC No. 312/17 State Vs. Puran
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 312/17)
Unique Identification No. DLNT010068332017
FIR No. 103/17
Police Station Narela
Charge sheet filed 376 IPC
Under Section & 6 POCSO Act
Charge framed 6 POCSO Act
Under Section & 376 (2) IPC
State V/s Puran
S/o Karwa
R/o H.No. 54, Niche Ka Mohalla,
District Beswan,
Village Aligarh, UP.
......Accused
Date of institution 30.05.2017
Date of arguments 05.05.2018
Judgment Pronounced on 05.05.2018
Decision Acquitted
J U D G M E N T
1.The accused Puran is facing trial in the present case on allegations of having committed penetrative sexual assault / rape upon the victim S, (identity withheld), aged about six years, by licking her Judgment : FIR No. 103/17 page 1 of 21 SC No. 312/17 State Vs. Puran private parts with his tongue and having licked her upper lip.
2. The facts in brief, which are borne out from the record are that complainant Smt. R, who is a permanent resident of District Gurdaspur, Punjab, had come to Delhi about three months prior to 04.02.2017, and was living in Staff Quarter of Sirka Company situated in Narela. Her husband used to work as a driver, and the accused Puran, who was living in their neighbourhood, was also working as a driver. On 03.02.2017, accused Puran took the daughter of the complainant, namely S (identity withheld) to his room, and misbehaved with her, by licking her private part with his tongue. Again on 04.02.2017 at about 3.00 PM, the accused took the victim S to his room, removed her underwear and licked her private part with his tongue. When the complainant was searching for her daughter, a small child of their neighbourhood, informed her that victim S had been taken by accused Puran to his room, whereafter the complainant went to the room of the accused, which was found bolted from inside. The complainant knocked the door and found the accused and victim inside the room, and the victim narrated the entire incident to her mother. The complainant brought the victim downstairs and narrated the incident to her second daughter R, who called the police at 100 number.
3. The information to the police was reduced into writing vide DD no. 32 A, pursuant whereto W/ASI Prem Lata alongwith W/Ct. Geeta reached at the spot, where ASI Devender Kumar, Ct. Arun met them alongwith complainant, her husband and her daughters R and S, and informed that someone had sexually assaulted the victim S, aged about 6 years. The Judgment : FIR No. 103/17 page 2 of 21 SC No. 312/17 State Vs. Puran victim was taken to BSA Hospital, where she was got medically examined vide MLC No. 531/17, but the mother of the victim refused for internal medical examination of the victim. The victim and the complainant were got counselled through NGO personnel, and thereafter statement of the complainant was recorded, on the basis of which the instant case FIR was registered u/s 376 IPC & 6 POCSO Act.
4. On 06.02.2017, the victim S as well as her mother / complainant Smt. R were produced before the Ld.MM, and on appropriate applications moved by the IO, Ld. MM recorded the statements of the victim and her mother u/s 164 CrPC, wherein both of them reiterated the facts, mentioned by the complainant in the complaint. On 27.03.2017, the accused Puran was arrested from his house vide appropriate arrest memo and his potency test was got conducted. IO recorded the statements of the witnesses, and after completion of the investigation, the chargesheet was filed in the court.
5. On appearance, the accused was supplied with the copies of the chargesheet and other documents. After perusal of the chargesheet, the documents, and hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused, initially the accused was charged for the offence punishable u/s 6 POCSO (Protection of Children from Sexual Offences) Act, 2012, on 20.07.2017, to which the accused pleaded not guilty and claimed trial. However, later vide order dated 07.04.2018, the charge was amended and the amended charge for the offences punishable u/s punishable u/s 6 POCSO (Protection of Children from Sexual Offences) Act, 2012 and u/s 376 (2) IPC was framed against the accused, to which Judgment : FIR No. 103/17 page 3 of 21 SC No. 312/17 State Vs. Puran the accused pleaded not guilty and claimed trial. After framing of amended charge, Ld. Ld. Addl. P.P. for the State stated that no witness already examined, is to be examined afresh. Similarly, Ld. Counsel for the accused stated that he adopts the same examination and cross examination of the witnesses, already recorded and no witness is to be recross examined afresh.
6. To substantiate its case, the prosecution examined the victim S, as PW 1, wherein she stated her age to be 6 years. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim / child to give rational answers, on being satisfied, the statement of the victim was recorded, wherein she deposed as under :
"Question : Aapko kisi ne tang kiya tha?
Answer: Ek ladki Raman ne school main mujhe gira diya tha, jisse meri ghutne main chot lagi thi.
Question : Aur bhi kisi ne tang kiya tha?
Answer : Nahi."
7. Since the witness / PW 1 was not responding at all and remained mum, on the request of the Ld. Ld. Addl. P.P. for the State, she was allowed to put leading questions to the witness, wherein she deposed as under :
"Question: Kisi budde ko jaanti ho?
Answer: Nahi.
Question : Kya aapne police ko bataya tha ki ek budde ne aapka chumma liya tha?
Judgment : FIR No. 103/17 page 4 of 21
SC No. 312/17 State Vs. Puran
Answer : Nahi pata.
Question: kya ek budda aapko toffee dene ke bahane apne ghar le gaya tha?
Answer : Nahi pata.
Question : Aapko jo pata hai wo bata do?
Answer : Mujhe kuch nahi pata.
Question : Budde ne aapki kachchi utarkar chumma liya tha? Answer : Nahi pata.
Court observation : whenever the child is put any question regarding 'Budda' or the incident, her expression become blank and she remains mum else, on any other question she has been responding coherently. Question : Kya kisi ne samjhaya hai ki har sawal ka jawab 'mujhe nahi pata' bolna hai?
Answer :Nahi kisi ne nahi bola.
Question : Kya aapke saath koi galat kaam hua hai? Answer : Nahi.
Question : Agar koi budda dikhaya jaaye to aap pehchan sakte ho ki ye budda aapko pehle kabhi mila hai aur ussne aapke saath kuch kiye hai?
Answer : Nahi.
Question: Aaj aap jaanbujhkar uss buddhe ko nahi pehchan rahe ho?
Answer: Nahi pata.
keeping in view the tender age of the victim, the Ld. Addl. PP for the state has stated that she does not wish to Judgment : FIR No. 103/17 page 5 of 21 SC No. 312/17 State Vs. Puran crossexamine the victim.
At this stage, the child witness has been asked to see the persons, present in the court room and make an effort as to whether anyone of them had ever met her or done any wrong act with her. The child has seen the persons sitting in the court room through the wooden partition after going out of the chamber of the undersigned. Witness has not identified anyone."
8. Ms. RK (mother of the victim) entered the witness box as PW2 and deposed as under :
"Main anpadh hoon aur Distt. Gurdaspur, Punjab, ki rehne wali hoon aur Narela, Delhi main pichle saal hi apne pariwar ke saath rehne aayi thi. Mere pariwar main main, mere pati, do bete aur do betiyan hain. Mera ek beta mere saath Delhi nahi aaya tha, kyonki wo Dubai main kaam karta hai. Meri beti victim 'S' (identity withheld) iss samai 08 saal ki hai. Jab hum Narela main rehte the, tab ek din police hamare ghar aayi aur mujhse kuch kagajon per angootha lagwakar le gayi thi, kyonki kisi ne hamare address se jhagde ki call kar di thi. Usske baad mujhe nahi pata ki police ne kya case banaya. Police ne mera koi bayan nahi likha. Meri jankari main police ne koi karwai nahi ki. Police mujhe ya meri beti ko kabhi hospital nahi lekar gayi. Main pehle bhi court main bayan dene aayi thi, jahan per mera bayan ek lady judge ne likha tha. At this stage, an envelope sealed with the seal of RM is opened Judgment : FIR No. 103/17 page 6 of 21 SC No. 312/17 State Vs. Puran and a statement U/s 164 Cr.P.C. is taken out. The witness has been shown the statement and she identifies her thumb impression at points A and the same is Ex. PW2/A."
9. Since the witness / PW 2 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In his cross examination by the Ld. Addl. P.P. for the State, PW 2 deposed as under :
'"At this stage, the witness has been shown her statement / complaint from the judicial file, on which she identifies her thumb impression at pointA, the said statement / complaint is now Ex.PW2/B. Yeh kehna galat hai ki maine police ko bataya tha ki hamare pados main ek Pooran naam ka ek driver rehta hai aur jo ki meri chhoti beti 'S' ko 03.02.2017 ko apne kamre main uper le gaya aur uske saath chedchad ki aur usske susu karne wali jageh ko apni jeebh se chhata aur usske uper wale hoth (lip) ko bhi chuma aur ke pehle jab maine apni beti se pucha to ussne mujhe kuch nahi bataya aur ki usne ab mujhe bataya hai ki muljim Pooran ne usse apne kamre main le jakar uski kachchi utar kar usski susu wali jageh ko apni jeebh se chata aur ke jab main apni ladki ki talash kar rahi thi to pados ki chhoti bachchi Gayatri nain mujhe bataya ki victim 'S' ko to Pooran uncle uper lekar gaye hain aur fir jab main Pooran ke ghar gayi to dekha ki darwaja band tha aur ke jab maine darwaja khatkhataya to muljim Pooran ander se aaya aur maine apni beti ko awaj di Judgment : FIR No. 103/17 page 7 of 21 SC No. 312/17 State Vs. Puran aur wo bahar aa gayi aur apne saath huyi saari ghatna ke baare main bataya aur ke fir main usse niche lekar aa gayi aur apni beti 'R' ko bhi iss baare main bataya aur fir wahan per kafi log ikattha ho gaye the aur wo muljim Pooran ko peetne lage aur meri beti ne 100 number per phone kar diya, aur fir muljim Pooran wahan se bhag gaya (Confronted with portionA to A in statement Ex.PW2/B, where it is so recorded). Yeh thik hai ki police meri beti ko BSA Hospital, Rohini, main lekar gayi thi aur wahan maine doctor ko kaha tha ki main apni beti ki androoni jaanch nahi karwana chahti. Maine police ko ye nahi kaha tha ki, NGO se counselor bhi aayi thi aur mera bayan usske samne hi likha gaya tha aur main apni beti ke saath huyi chedchard aur rape karne ki koshish karne wale Pooran ke khilaf kanooni karwai chahti hoon (Confronted with portionB to B in statement Ex.PW2/B, where it is so recorded).
Yeh thik hai ki maine judge sahab ko apne bayan apni marji se aur bina kisi dabav ke diye the. Main muljim Pooran Singh ko nahi pehchan sakti aur wo mere pados main nahi rehta tha. Yeh kehna galat hai ki main aaj jaanbujhkar muljim ko nahi pehchan rahi hoon, kyonki hamara muljim Pooran ke pariwar ke saath rajinama ho gaya hai. Mujhe nahi pata ki aaj jo muljim adalat main hajir hai, wo Pooran hai ya nahi. Yeh kehna galat hai ki main aaj jaanbujhkar court main sach chupa rahi hoon, kyonki main ab Narela main nahi rehti aur apne gaon main chali gayi hoon (Vol. Main ab court kachehari Judgment : FIR No. 103/17 page 8 of 21 SC No. 312/17 State Vs. Puran ke chakkaron main nahi padna chahti). Maine police ko ghatna wali jageh nahi dikhai thi (Confronted with statement dated 04.02.2017, where it is so recorded).
Maine police ko apne 06.02.2017 ke bayan main ye nahi bataya tha ki "Padosan ke bachche mujhe batane aaye ki 'S' ka chumma le raha hai buddha" aur main thakthak ki aur dekha ki 'S' ka chumma le raha tha, uski kachchi bhi utar kar chumma leta tha (confronted with portion A to A in statement MarkX, where it is so recorded). Maine police ko apne bayan main bataya tha ki mooh (face) beti ka itna mota ho rakha tha, meri beti rone lagi, main usse lekar ghar aa gayi, fir meri beti ne bataya ki wo mooh per (pointing towards lips) chumma leta aur kachchi utarkar bhi (confronted with portion A to A in statement MarkX, where it is so recorded). Yeh kehna galat hai ki maine aaj court main jhoothi gawahi di hai, kyonki ki maine muljim ke pariwar se achcha paisa le liya hai. "
10. Mr. BS (father of the victim entered the witness box as PW 3 and deposed as under :
"Mujhe iss case ke baare main kuch nahi pata, kyonki main uss samai ghar per nahi tha. Meri beti 'S' ke saath kuch nahi hua. Muljim Pooran, jo ki aaj adalat main hajir hai (witness has correctly identified the accused), mere sath company main driver ki naukari karta tha. Pados main kisi ka jhagda ho jane per police aayi thi aur meri patni se kayi kagjon per angootha lagwaya tha. Muljim ghatna ke samai company main mere Judgment : FIR No. 103/17 page 9 of 21 SC No. 312/17 State Vs. Puran saath hi driver ka kaam kar raha tha aur wo apne ghar per nahi tha. Police ne mujhse koi puchtach nahi ki aur na hi mera koi bayan likha."
11. Since the witness / PW 3 had resiled from his earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In his cross examination by the Ld. Addl. P.P. for the State, PW 3 deposed as under :
"Yeh kehna galat hai ki police ne mere bayan likhe the, jo ki MarkY hai.
At this stage, entire statement Marky has been read over to the witness, who denies having made such statement before the police.
Yeh kehna galat hai ki maine muljim aur uske pariwar se rajinama kar liya hai aur ke maine ek mota paisa unse liya hai aur issi wahej se main ghatna wale din ki baat thik se nahi bata raha hoon. Yeh kehna galat hai ki muljim Pooran ko police ne mere samne giraftar kiya tha aur maine usske giraftari ke kagjon per sign kiye the. Yeh kehna galat hai ki muljim ghatna ke samai apne ghar per hi maujood tha aur usne meri beti 'S' ke saath chedchad ki thi aur issiliye meri beti 'R' (identity withheld) ne police ko bula liya tha aur aaspados ke logon ne muljim ki kafi pitai bhi ki thi.
At this stage, the witness has been shown the arrest memo of the accused, on which he identifies his signature at pointA, the arrest memo is now Ex.PW3/A. Yeh thik hai ki maine police ko Judgment : FIR No. 103/17 page 10 of 21 SC No. 312/17 State Vs. Puran apni beti 'S' ka janam praman patra aur apna pehchan ka proof diya tha, jo ki police ne apne kabje main le liya tha, aur iss babat kagaj bhi tyar kiya tha, jis per maine pointA per apne sign kiye the, jo ki ab Ex.PW3/B hai. Meri beti ka janam praman patra ab Ex.PW3/C aur mera pehchan ka proof ab Ex.PW3/D."
12. PW 4 ASI Surender Singh, No. 2638/D, PS Narela, Delhi deposed that on 04.02.2017, while posted as Duty Officer at PS Narela, at about 7.45 PM, on receipt of rukka from Ct. Arun sent by W/ASI Prem Lata, he got recorded the instant case FIR registered and proved the copy of the same as Ex. PW 4/A, made an endorsement Ex. PW 4/B, on the same and also issued the certificate u/s 65 B Indian Evidence Act, which he proved as Ex. PW 4/C.
13. PW 5 ASI Mahipal, No. 409/RD, PS Narela, deposed that on 04.02.2017, while posted as DD writer, on receipt of PCR call at about 3.15 PM, about wrong act having been committed upon a five years old child by a man, he recorded the DD NO. 29 A Ex. PW 5/A and marked the same to ASI Devender. On the same day, at about 3.50 PM, ASI Devender made a call to him and informed that the matter pertained to sexual assault upon a girl, and requested that some lady police official be deputed, which was recorded by him as DD No. 32 A Ex. PW 5/B and the said DD was marked to WASI Prem Lata.
14. Sh. Palvinder Jeet Singh, Multiple Purpose Health Worker, from the Office of Civil Surgeon, Gurdaspur, District Gurdaspur, Punjab entered the witness box as PW 6 and brought on record the birth record Judgment : FIR No. 103/17 page 11 of 21 SC No. 312/17 State Vs. Puran of the girl child S D/o B, and deposed that as per the record, the date of the girl child / victim S is 02.09.2010, and proved copy of the relevant page of the birth register as Ex. PW 6/A.
15. PW 7 L/Ct. Geeta, No. 1844/RD deposed that on 04.02.2017, while posted at PS Narela, on receipt of DD No. 32 A by the IO, she accompanied the IO W/ASI Premlata and reached at the spot and met the victim S, and took her to BSA hospital, where she was got medically examined, but the mother of the victim refused for internal medical examination of the victim.
16. Ms. R (sister of the victim) entered the witness box as PW 8 and deposed as under :
"Victim 'S' meri chhoti behan hai, jiski umer ab karib 09 saal hogi.
Ghatna wale din kaafi shor sharaba ho raha tha. Mere mummy papa, wahin per maujood the. Mujhe dhyan nahi ki meri chhoti behan wahan per thi ya nahi. Maine jhagda dekhkar, jismen ki log chilla rahe the, ke 100 number per phone kar do, maine 100 number per phone kar diya aur keh diya ki hamare ghar per jhagda ho raha hai. Usske baad mein apne kamre mein chali gayi, mujhe nahi pata ki police aayi, ya nahi aayi. Fir kaha; police aayi thi. Mujhe nahi pata ki usske baad kya hua. Police wale mujhse nahi miley the. Usske baad mere mummy papa mujhe miley the. Meri behan 'S' wahin per khel rahi thi. Mujhe yaad nahi ki jhagde ke samai meri chhoti behan 'S' kahan thi. Fir kaha: Jhagde ke samai wo wahin per thi. Maine Judgment : FIR No. 103/17 page 12 of 21 SC No. 312/17 State Vs. Puran apne mummypapa se jhagde ka karan pucha tha, lekin unhone mujhe kuch nahi bataya. Maine apni chhoti behan se jhagde ka karan nahi pucha tha. Meri chhoti behan ne mujhe khud bhi jhagde ke baare mein kuch nahi bataya tha. Police walon ne mujhse koi puchtach nahi ki, aur na hi mera koi bayan likha. At this stage, the attention of the witness is drawn towards accused Pooran, who is present in court today. After seeing the accused, the witness has stated that she does not know him.
Mein aaj pehli baar iss aadmi ko dekh rahi hoon. Maine iss aadmi ko aaj se pehle kabhi nahi dekha aur na hi mujhe pata hai ki isska naam Pooran hai. "
17. Since the witness / PW 8 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 3 deposed as under :
"Police ne mujhse koi puchtach nahi ki, aur na hi mera koi bayan likha. Yeh kehna galat hai ki police ne mujhse puchtach ki thi aur mera bayan dated 04.02.2017 likha tha. At this stage, statement MarkPW8/A is read over to the witness, who denied having made such statement to the police. Mujhe nahi pata ki Pooran, jo ki aaj adalat mein hajir hai aur iss case mein muljim hai, mere papa ke saath company mein driver ki naukri karta tha. Yeh kehna galat hai ki 04.02.2017 ko karib 3:00 PM baje, muljim Pooran jo ki mere pados mein rehta Judgment : FIR No. 103/17 page 13 of 21 SC No. 312/17 State Vs. Puran tha, meri chhoti behan 'S' ko jiski umer uss samai 06 saal thi, jo ki bahar khel rahi, usse toffee aur chocolate dene ke bahane apne kamre mein le jakar usske saath chedchad aur galat kaam kiya. Yeh kehna galat hai ki 03.02.2017 ko bhi muljim Pooran ne meri chhoti behan 'S' ko apne kamre mein le jakar chedchad ki thi. Yeh kehna galat hai ki 04.02.2017 ko muljim Pooran ne meri chhoti behan ko apne kamre mein le jakar, usski kachchi utaar kar, uski Susu karne wali jageh ko chata aur usske hoth ko bhi chata. Yeh kehna galat hai ki uss samai mein ghar per hi maujood thi. Yeh kehna galat hai ki meri mummy, muljim Pooran ke kamre mein jakar, meri chhoti behan 'S' aur muljim Pooran ko kamre se bahar lekar aayi aur meri mummy ne saari ghatna ke baare mein mujhe bataya aur logon ne muljim Pooran ko peeta, jo ki muljim apne aap ko churwa kar wahan se bhag gaya. Yeh kehna galat hai ki iss wajeh se maine 100 number per phone kiya tha. Yeh kehna galat hai ki police mauke per aayi aur unhone mere behan ki doctori jaanch karwai aur mujhse puchtach ke baad mera bayan likha (confronted with statement Mark PW8/A, where it is so recorded).
Yeh kehna galat hai ki hamara muljim se samjhota ho gaya hai aur issiliye usske khilaf aaj adalat mein thik bayan nahi de rahi hoon. Yeh kehna galat hai ki aaj adalat mein bayan maine muljim ke pariwar ke prabhav aur dabav mein diya hai. Yeh kehna galat hai ki muljim ko iss case mein bachane ke liye mein aaj adalat mein saari baaten sach nahi bata rahi hoon.
Judgment : FIR No. 103/17 page 14 of 21
SC No. 312/17 State Vs. Puran
Yeh kehna galat hai ki mein aaj adalat mein jhootha bayan de rahi hoon."
18. During the course of trial, the accused admitted the proceedings u/s 164 CrPC conducted by the Ld. MM in the present case, in respect of the victim and her mother, as Ex. PX1 and PX2 respectively, and accordingly the witness / Ld. MM, who conducted the proceedings and recorded the statements of the victim and her mother u/s 164 CrPC, was not summoned, as observed in the proceedingsheet dated 07.04.2018.
19. The victim as well as her mother, her father and her sister, who were cited as the material witnesses of the occurrence, by the prosecution, did not support the prosecution case and denied allegations against the accused in toto. Even on being cross examined by the Ld. Addl. P.P. for the State, the stand of said material witnesses remained consistent that no such incident, as alleged in the instant case, ever took place. Ld. Addl. PP for the State conceded that there was no other incriminating evidence, which would connect the accused with the offences, he has been charged with and therefore recording of further prosecution evidence was not necessitated and accordingly PE was closed.
20. Statement of the accused u/s 313 CrPC was recorded and all the incriminating evidence against him, was put to him but he stated that he has been falsely implicated in this case and pleaded his innocence. However, he opted not to lead defence evidence.
Judgment : FIR No. 103/17 page 15 of 21
SC No. 312/17 State Vs. Puran
21. I have heard Mr. Girish Giri, Addl. PP for the State and Mr. Salil Bhatacharya, Ld. Counsel for the accused, scrutinized the evidence adduced by the prosecution and have gone through the record.
22. Age of the Victim: As per the prosecution case, the victim was a child within the meaning of section 2 (d) POCSO Act, and in order to ascertain the age of the victim S, the prosecution collected and relied upon the birth certificate of the victim, issued by Chief Registrar, Births & Deaths, Health & Family Welfare, Department, Government of Punjab, Punjab, which was proved on record as Ex. PW 3/C by PW 3 / father of the victim, as per which the date of birth of the victim girl is 02.09.2010. PW 6 Sh. Palvinder Jeet Singh, an employee from the office of Civil Surgeon, Gurdaspur, Punjab, also deposed that as per the record maintained in their office, the girl child S was born on 02.09.2010, and he proved on record the birth record of the the victim S, comprising of the relevant page of the register, wherein the birth of the girl S was registered, as Ex. PW 6/A. Though all the particulars mentioned in the document Ex. PW 6/A are in Gurumukhi script, but the relevant entry has been specifically marked / encircled in red and the date of birth has been mentioned in Hindi as 02.09.2010. Both the said documents, having been issued by government departments and not having been disputed by the accused in any manner, as no suggestion controverting either the date of birth of the victim or the genuineness of the said documents, has been put to any of the said two witnesses, the date of birth of the victim is taken to be correct, as mentioned in her birth certificate i.e. 02.09.2010. As such, on the date of alleged incident i.e. 03.02.2017, the victim was aged about 5 years 6 months, and hence she is a "Child" within the Judgment : FIR No. 103/17 page 16 of 21 SC No. 312/17 State Vs. Puran meaning given under the POCSO Act.
23. Medical and forensic Evidence : The victim S was got medically examined at BSA Hospital on 04.02.2017 at 5.45 PM, vide MLC no. 531/16, and on her local examination, bluish mark was found on her upper lip, and the nature of injury was opined as simple by the doctor concerned. However, the mother of the victim refused for the internal medical examination of the victim, and as such neither her exhibits were collected, nor were sent to the FSL for expert opinion.
24. The accused was also got medically examined at MV Hospital vide MLC No. 1073/17, where his potency test was also conducted, and the doctor concerned opined that "There is nothing found which suggest that person is incapable for doing sexual intercourse".
25. Since, keeping in view the nature of allegations, the victim was not internally medically examined, nor any exhibits of the victim were collected, for sending to the FSL for expert opinion. It is, therefore, clear that there is no medical or forensic evidence on record to corroborate the prosecution case that the victim was sexually assaulted.
TESTIMONY OF THE VICTIM AND OTHER MATERIAL WITNESSES
26. To substantiate its case, the prosecution examined four material witnesses i.e. victim herself as PW 1, her mother as PW 2, her father as PW 3 and her sister as PW 4, and out of these four material witnesses, victim examined as PW 1 was the most crucial witness. However, the Judgment : FIR No. 103/17 page 17 of 21 SC No. 312/17 State Vs. Puran said witness, despite being put leading questions to her, denied the prosecution case stating that no wrong act (galat kaam) was committed upon her. To other questions put to her by the Ld. Addl. P.P. for the State, she replied very rigidly that she did not know. It was also observed by the court that when the victim was being questioned about the accused (addressed as Budda) or the incident, her expressions become blank and she kept mum, though on other questions, she had been responding coherently. She was specifically asked whether she can identify the person, addressed as Budda, and tell whether she had met that person ever or not, to which the victim replied in negative. The witness was asked to see the persons, present in the court room and make an effort as to whether anyone of them, had ever met her or done any wrong act with her, and the victim after seeing the persons sitting in the court room, through the wooden partition, did not identify anyone.
27. Likewise, the mother and father of the victim examined as PW 2 and PW 3 respectively, showed their total ignorance about the present case and allegations against the accused. Both the said witnesses have deposed that a quarrel took place in their neighbourhood, whereafter someone made a call at 100 number, pursuant whereto police reached at the spot and obtained their signatures on some blank papers. PW 2 / mother of the victim has even denied that she and her daughter / victim were taken to the hospital, by the police. During her crossexamination by the Ld. Addl. P.P. for the State, PW 2 denied that in her statement to police, she had stated that on 03.02.2017, accused Puran had taken her daughter / victim S to his room and misbehaved with her by licking her private part and kissing on her lips. Both the said witnesses have Judgment : FIR No. 103/17 page 18 of 21 SC No. 312/17 State Vs. Puran categorically denied that they have compromised the matter with the accused and in order to save him in this case, they were deposing falsely. PW 2 even deposed that she was unable to identify the accused Puran, as he was not residing in their neighbourhood. PW 3 denied that the accused was arrested in his presence but admitted that arrest memo of accused Ex. PW 3/A bears his signature.
28. The last material witness examined by the prosecution was PW 8 Ms. R (sister of the victim), but she also deposed on the lines of her parents that on the day of incident, a quarrel took place in their neighbourhood, whereafter she called the police at 100 number, but she showed her ignorance as to what action was taken by the police. She further deposed that she asked about the reason of quarrel from her parents, but they did not disclose her the same. On being specifically shown the accused, the witness / PW 8 deposed that she did not know him. She specifically denied that on 04.02.2017 at about 3.00 PM, the accused Puran, who was their neighbour, had taken her sister / victim S to his room and misbehaved with her. She even denied that she and her family members have compromised the matter with the accused and in order to save him, she was deposing falsely.
29. As such, none of the material witnesses examined by the prosecution has identified the accused as the culprit. The victim, who was the best person to identify the accused as the culprit and depose regarding the sexual assault, if any, committed upon her at the hands of the accused, kept silent to most of the questions put to her and even failed to identify the accused. Though, the father of the victim (PW3) Judgment : FIR No. 103/17 page 19 of 21 SC No. 312/17 State Vs. Puran identified the accused as the driver, working with him in the same factory, but the remaining three material witnesses even failed to identify the accused, though as per the prosecution case, the accused was living in their neighbourhood.
30. Even if, keeping in view the tender age of the victim, for the sake of arguments, it is accepted that she has forgotten the incident and is unable to identify the accused, but there is no reason as to why the other three material witnesses have denied the prosecution case in toto, despite being subjected to grilling crossexamination at the hands of the Ld. Addl. P.P. for the State. All the three remaining material witnesses have even denied that in order to save the accused in the instant case, they were deposing falsely. Bluish mark, which was found by the doctor concerned, on the upper lip of the victim and as mentioned in the MLC of the victim, loses its significance and becomes inconsequential, especially in the wake of the victim as well as other material witnesses having denied the commission of offences / alleged acts by the accused.
31. As such, the victim herself as well as other material witnesses i.e. her mother, her father and her sister, who were the material witnesses, on whose testimony, the case of the prosecution was hinging, did not support the prosecution case. The testimony of victim, who was the best person to depose regarding the incident and identify the accused as the culprit, was not conclusive, and even despite looking around in the court, she failed to identify the accused.
32. All the star witnesses, examined by the prosecution, on whose Judgment : FIR No. 103/17 page 20 of 21 SC No. 312/17 State Vs. Puran testimony the case of the prosecution was based, have not supported the allegations against the accused, and the victim, who was the best person to identity the accused as the culprit, not only failed to identify him as culprit but her testimony, even otherwise, was not conclusive. Victim and her other family members were the material witnesses of the incident and they not having supported the prosecution case and having given a clean chit to the accused, there is nothing that survives in the prosecution case, which falls flat on its face, failing to bring home the guilt of accused.
33. Conclusion : From the aforesaid discussions, allegations against accused are not proved. Accordingly, accused Puran stands acquitted for the offences, he has been charged with. Bail bond of the accused stands cancelled and his surety is discharged. Documents of the surety, if any retained on record, be released to him on appropriate application being moved by him.
Accused is directed to furnish a personal bond in the sum of Rs.10000/ under provisions of Section 437A CrPC, with one surety in the like amount.
Since victim has not suffered any injury or loss, either physical, mental or psychological, she has not been granted any compensation as per provisions of section 33 (8) POCSO Act.
File be consigned to record room.
Announced in the open court
today i.e. on 05.05.2018 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 05.05.2018
Judgment : FIR No. 103/17 page 21 of 21