Delhi District Court
State vs Satya Parkash Verma -:: Page 1 Of 30 ::- on 13 April, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 57427/2016.
Old Sessions Case Number : 10/2016.
State
versus
Mr.Satya Prakash Verma,
(As the identity of the minor prosecutrix is to be protected, the
parentage and address of the accused are withheld as he is
maternal grandfather/Nana of the prosecutrix and the offence was
allegedly committed by him at his house)
First Information Report Number : 1213/2015.
Police Station : Nihal Vihar
Under sections 376 and 376 (2F) of the Indian Penal Code and
sections 4 and 6 of the POCSO Act.
Date of filing of the charge sheet : 04.01.2016.
Arguments concluded on : 09.04.2018.
Date of judgment : 13.04.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for
the State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused has been produced from judicial custody.
Mr.R.R.Jha, legal aid counsel for the accused.
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JUDGMENT
1. At the outset, it may be mentioned that accused Mr.Satya New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 1 of 30 ::-
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Prakash Verma is a senior citizen stated to be aged 62 years. A sincere endeavour has been made to dispose off this case expeditiously considering the advanced age of the accused.
2. Mr.Satya Parkash Verma, the accused, has been charge sheeted by Police Station Nihal Vihar for the offences under sections 376 and 376 (2F) of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
3. Accused Mr.Satya Parkash Verma has been prosecuted on the allegations that on unknown dates and time, he had inserted his finger in the vagina of the minor prosecutrix, aged about nine (09) years, and even on the night of 30.11.2015, he had inserted his finger in the vagina of the prosecutrix.
4. As the identity of the minor prosecutrix is to be protected, the parentage and address of the accused are withheld as he is maternal grandfather/Nana of the prosecutrix and the offence was allegedly committed at his house.
5. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her. The mother of Ms.X is referred to as Ms.Y, a fictitious identity New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 2 of 30 ::-
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given to her to protect the identity of the minor prosecutrix.
CHARGE SHEET AND COMMITTAL
6. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 04.01.2016.
CHARGE
7. After hearing arguments, the charge for offences under section 6 of POCSO Act and under section 376 of the IPC was framed against accused Mr.Satya Parkash Verma vide order dated 04.03.2016 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8. In order to prove its case, the prosecution has examined as many as 03 witnesses i.e. Ms.X, the minor prosecutrix, as PW1; Ms.Y, the mother of the minor prosecutrix, as PW2; and SI Maya Devi, the Investigating Officer, as PW3.
9. As elaborated in the order dated 03.08.2017, the legal aid counsel for accused, on behalf of the accused, has admitted under section 294 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) the evidence of PWs Ct.Sarita, HC Ompal Singh, HC Mahesh Kumar, HC Anil, Dr.Shuline, Dr. Gurdeep Singh, Principal MCD School, Nangloi and Ms. Swati Singh, Ld. MM and the documents prepared by/signed by the New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 3 of 30 ::-
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above mentioned witnesses. All the above mentioned prosecution witnesses were not examined by the prosecution as their evidence is admitted by accused as well as the documents prepared by/signed by them.
STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C.
10.In his statement under section 313 of the Cr.P.C., the accused has controverted and rebutted the entire evidence against him submitting that he is innocent. He has not committed any offence. The mother of the prosecutrix, who is his own daughter, has falsely implicated him in this case as she wants to grab his property as he does not have any son. He had allowed his daughter to live in his house on humanitarian grounds but she has tutored the prosecutrix, her daughter, and falsely implicated him in this case. The police obtained his signatures on some blank papers forcibly. This case has been made only as his younger daughter wants to grab his property and she has projected her own daughter as a victim. His elder daughter does not want anything but still his younger daughter wants to grab everything he has during his life time. He did not agree to give his property to his younger daughter and due to this reason, he has been falsely implicated in the present case.
ARGUMENTS
11.I have heard arguments at length. I have also given my New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 4 of 30 ::-
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conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
12.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offences under section 6 of the POCSO Act as well as under section 376 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
13.The legal aid counsel for the accused has requested for his acquittal submitting that there is nothing incriminating against the accused on the record. There is a delay in lodging of the FIR which remains unexplained. There are several contradictions in the different statements of the prosecutrix.
DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
14.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 5 of 30 ::-
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these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot- free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
15.Under this sphere, I now proceed to test the submissions of both the sides.
New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 6 of 30 ::-
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CASE OF THE PROSECUTION, ALLEGATIONS AND PROVED DOCUMENTS.
16.The prosecution story unveils on 30.11.2015 when the Duty Officer ASI Badlu Ram had recorded DD no. 49-A (Ex.PW3/A) on the information given by the tenant (kirayadaar) regarding 'commission of wrong act at house no. F....(remaining address withheld) upon a boy by the owner of the house (makaan malik). On receipt of DD no. 49A (Ex.PW3/A), IO/SI Maya Devi (PW3) along with Ct.Sarita (evidence admitted on behalf of the accused on 03.08.2017) went to the spot where Ms.X the prosecutrix (PW1) aged about 09 years along with Ms.Y, her mother (PW2), met her. The prosecutrix (PW1) told her that her maternal grand father inserted his finger into her private part while she was present in the room to watch T.V. IO/SI Maya Devi (PW3) recorded the statement (Ex.PW1/A) of the minor prosecutrix (PW1) and she took her to SGM hospital for her medical examination. Ct.Sarita and the mother of the prosecutrix also accompanied them to the hospital. The medical examination of Ms. X, the minor prosecutrix (PW1) was conducted by Dr. Shuline (evidence admitted on behalf of the accused on 03.08.2017) vide MLC no. 277 (Ex.PW3/B). IO SI Maya Devi (PW3) made endorsement (Ex.PW3/C) on the statement (Ex.PW1/A) of the prosecutrix (PW1) and handed over the rukka to Ct.Sarita and she was sent to police station with rukka for registration of FIR. IO/SI Maya Devi (PW3) New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 7 of 30 ::-
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called the member of NGO and counseling was provided to the prosecutrix and recorded the statement of mother of the prosecutrix. Ms.Y, the mother of prosecutrix (PW2) had shown the room where the incident took place to the police. IO/SI Maya Devi (PW3) prepared the site plan (Ex.PW3/D) at the instance of the prosecutrix (PW1). HC Mahesh Kumar (evidence admitted on behalf of the accused on 03.08.2017) Duty Officer registered FIR no. 1213/15 (Ex.PW3/E) and also made endorsement on rukka (Ex.PW3/C). HC Mahesh Kumar, duty officer also issued certificate under section 65 B of the Indian Evidence Act (Ex.PX-1). The prosecutrix was also produced before Ms.Swati Singh, learned Metropolitan Magistrate (evidence admitted on behalf of the accused on 03.08.2017) who recorded her statement under section 164 of the Cr.P.C. (Ex.PW1/B). Accused was arrested vide arrest memo (Ex.PW2/A) and his personal search was taken vide personal search memo (Ex.PW2/B) and he confessed the commission of the crime vide his disclosure statement (Ex.PW3/E). The medical examination of the accused was conducted by Dr.Gurdeep, DDU hospital (evidence admitted on behalf of the accused on 03.08.2017) vide MLC (Ex.PW3/F) and the doctor opined that there is nothing to suggest that the accused is incapable of performing sexual act. Thereafter, the accused was brought to the Police Station and was produced in the Court. IO/SI Maya Devi (PW3) recorded the statements of the witnesses and after completing the investigation, she filed New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code.
Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 8 of 30 ::-
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the chargesheet.
DD NO. 49 A (Ex.PW3/A)
17.The prosecution has not been able to furnish any explanation regarding the contents of DD No. 49 A (Ex.PW3/A) on the basis of which the prosecution story was set into motion. It has been mentioned in the same that on 30.11.2015, an information was given by the tenant (kirayadaar) regarding 'commission of wrong act at house no. F....(remaining address withheld) upon a boy by the owner of the house (makaan malik).
18.DD No. 49 A (Ex.PW3/A) reads as "caller kirayedaar hai.
Makaan malik ladke ke saath galat kaam kar raha meine khud apni aankhon se dekha" The phone number of the caller is also mentioned.
19.In the present case, nothing has been shown that who this aller was, who this tenant was and in whose name the phone number which was used for informing the police is issued. The prosecution has not shown that there was any tenant and land lord relation between the concerned persons i.e. the accused and the mother of the prosecutrix as the mother of the prosecutrix herein is the daughter of the accused and the prosecutrix who is a girl child is the grand daughter of the accused. Further, it is mentioned in DD No. 49 A (Ex.PW3/A) that it is a boy who is the victim against whom the wrong act was being committed. New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 9 of 30 ::-
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The victim in the present case admittedly is a girl child and not a boy.
20.The basis of the prosecution case i.e. information given to the police vide DD No. 49 A (Ex.PW3/A) does not relate to the case at all and for this reason alone, the accused becomes entitled to be acquitted.
PROSECUTION EVIDENCE
21.Perusal of the record shows that Ms.X, the prosecutrix (PW1) has given different versions of the incident in her different statements made before the different authorities i.e. the police, the learned Metropolitan Magistrate and the Court. These contradictions remain unexplained by the prosecution. These contradictions are too major to be ignored and they strike at the very root of the prosecution case.
22.In the complaint (Ex.PW1/A), the prosecutrix (PW1) has stated that "....jo achanak mere nana Satya Prakash ne meri salwar mein haath dala aur meri peshab karne wali jagah mein ungli dalne lage...." (suddenly my maternal grandfather Satya Prakash put his hand inside my salwar and put his finger in my urinating part)
23.In the statement under section 164 of the Cr.P.C. (Ex.PW1/B), the prosecutrix (PW1) has stated that "...Phir jab mummy New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 10 of 30 ::-
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kamre mein thi yoh tabhi mere Nanu ne mere elastic wale pa- jama mein andar haath daala aur mere susu ko chuha. Tabhi toilet jaate waqt meri mummy ne yeh dekh liya toh Nanu ne ekdum se haath hata liya...." (When my mother was inside the room, then my maternal grandfather put his hand inside my pa- jama with elastic and touched my private part. While going to the toilet, my mother saw this and then my maternal grand fa- ther immediately removed his hand).
24.Relevant extracts of the evidence of Ms.X the minor prosecutrix (PW1) are as follows:
"Q. Whether your NANA used to do any GALAT HARKAT with you in the absence of your parents ? A. The accused, present today in the Court, many times used to tie my hands with gate and used to touch his mouth on my vagina. Accused also used to touch his finger in my vagina. He did not insert his finger in my vagina.
Q. Did you tell about the same incidents to your par- ents?
A. I told them when the accused was sent in jail...... Q. When your mother had witnessed the incident, what accused was doing with you at that time ? A. Accused has put his hand on my TOILET WALI JA- GAH....."
25.In her cross examination on behalf of the accused, the pros-
ecutrix Ms.X (PW1) has deposed that "Q. Is it correct that prior to this incident, your mother and father used to quarrel frequently?
Ans. MERE PAPA JI KABHI LADAEE NAHIN KARTE THE PAR MERE NANAJI. PAR NANAJI New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 11 of 30 ::-
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KAHTE THE KI R (father of the prosecutrix whose name is deposed and withheld to protect the identity of the prosecutrix) MERI DIWAR MEIN CHHED KAR DETA HAI.
Q. Whether your mother had quarrelled with accused ? Ans. EK BAAR LADDI HAI JAB USNE YEH GHATNA DEKHI THI TAB USNE MERE NANA KO BAAL PAKAD KE MARA THA....."
26.In her complaint (Ex.PW1/A), Ms.X (PW1) the prosecutrix has stated that the accused had put his hand inside her salwar and put his finger in her urinating part while in her statement under section 164 of the Cr.P.C. (Ex.PW1/B), she has stated that the accused put his hand inside her pajama with elastic and touched her private part. She has given a third version in her evidence before the Court by deposing that the accused many times used to tie her hands with gate and used to touch his mouth on her vagina. Accused also used to touch his finger in her vagina. He did not insert his finger in her vagina. Accused has put his hand on her TOILET WALI JAGAH.
27.The charge against the accused is of inserting his finger in the private part of the prosecutrix. The prosecution has not been able to furnish any explanation regarding such serious and ma- jor contradictions in the different statements of the prosecutrix. She has categorically deposed before the Court that the accused did not insert his finger in her vagina and consequently the charge, in the present case, of insertion of his finger in her vagina on unknown dates and time prior to 30.11.2015 stands New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 12 of 30 ::-
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not proved. The prosecutrix herself has not deposed that the ac- cused had inserted his finger in her private part (on 30.11.2015). She has, infact, given an account of some previous alleged inci- dents which has neither been reported earlier nor was mentioned in the complaint (Ex.PW1/A) nor the statement under section 164 of the Cr.P.C. of the prosecutrix (Ex.PW1/B) and therefore reliance cannot be placed upon the same and credibility cannot be attributed to the evidence of the prosecutrix.
28.It is also relevant to mention here that as per the evidence of Ms.X (PW1), the prosecutrix, her mother was inside the room when the accused had committed the offence on the night of 30.11.2015. However, Ms.Y (PW2), mother of the prosecutrix, has deposed that she was going to the toilet from her room and saw through the curtain that the accused was committing the of- fence. The contradiction regarding the presence of the mother in the room where the offence was committed is very serious and the prosecution has not been able to explain the same.
29.Further, Ms.Y (PW2) mother of the prosecutrux has deposed that "....On the last day of November, 2015, at about 10:00/10:30 pm my daughter i.e. prosecutrix told me that she wanted to watch T.V. I allowed her so, she went in the room of my father where TV was placed. After sometime, while going towards toilet, I saw through the curtain that my father was groping her private part. The curtain was half opened. I im-
New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 13 of 30 ::-
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mediately rushed inside the room, slapped my father i.e. the accused and asked him as to what was he doing. My father in turn started beating me. On hearing my cries, my husband also came there. I narrated the incident to him to call the po- lice...."
30.In her cross examination Ms.Y (PW2) has deposed that "...I had seen the accused committing the crime from the distance of 10-12 feet...
Q. Is it correct that at the time of alleged occurrence, the hand of the accused was under the CHADAR ? Ans. It is correct.....
Q. Is it correct that frequent quarrel used to take place between you and your father i.e. the accused ? Ans. MEIN NAHI LADTI THI. MERE PITAJI HI PANGE LETE THE KABHI HAMARE PADOSIYON KO KAHTE THE KI MERE PATI NE DIWAR PAR CHHED KAR DIYA. KABHI HAMARE PADOSIYON KO KAHTE THE KI TUMNE DIWAR MEIN CHEDD KAR DIYA......
It is correct that the house wherein I am residing is owned by the accused who is accused in the present case...."
31.It is clear from the evidence of Ms.Y (PW2) the mother of the prosecutrix that whatever she had seen was the movement under the bedsheet and she thought that the accused was groping the private part of her daughter. She has deposed that she had seen the accused committing the offence from a distance of 10-12 feet. Ms.X (PW1), the prosecutrix, in her statement under sec- tion 164 of the Cr.P.C. (Ex.PW1/B) has stated that her mother was in the room while in her cross examination, she has de- New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 14 of 30 ::-
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posed that "My mother was taking rest in another room, when the occurrence had taken place." Ms.Y (PW2) has deposed that she was on way to the toilet from her room and she had seen the incident from outside the room through the curtain which was half open.
32.The presence of the mother of the prosecutrix in the room of the accused, the alleged place of incident, does not appear to be proved by the prosecution in view of the contradictions in the statements and evidence of the prosecutrix and her mother.
33.SI Maya Devi (PW3) Investigation Officer has deposed that "...The prosecutrix told me that her maternal grand father in- serted his finger into her private part while she was present in the room to watch T.V...." In her cross examination, she has deposed that "....It is correct that wife of accused was present in the house when I reached there. I did not record the state- ment of wife of accused....It is correct that accused informed me that there was a property dispute between him and his daughter (mother of prosecutrix). I am not aware if there were complaints filed by the accused pertaining to the prop- erty dispute against his daughter. No independent public wit- ness was joined at the time of arrest of accused...."
34.It may be mentioned here that the prosecution version does not appear to be probable as it does not appeal to reason that the ac-
New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 15 of 30 ::-
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cused would commit the offence of fingering the vagina of his minor grand daughter when his own wife and the parents of the child as well as two sisters of the prosecutrix are present at home. The door of the room was open also.
35.The fact that there is a dispute between the accused and his daughter is also very apparent from the evidence of Ms.X (PW1) the prosecutrix and Ms.Y (PW2) her mother who have deposed the accused used to say that the father of the pros- ecutrix had made "Chhed" (hole) in his wall i.e. divided the family. Investigation Officer SI Maya Devi (PW3) has also de- posed that the accused had told her that there was a property dispute between him and his daughter (mother of prosecutrix).
36.It is also pertinent to mention that as per the complaint (Ex.PW1/A), Ms.X (PW1) was wearing a "salwar", as per the statement under section 164 of the Cr.P.C. of the prosecutrix (Ex.PW1/B), she was wearing "elastic wala pajama" and as per her evidence as PW1, she was wearing a "pajami". No explana- tion has come forth from the prosecution regarding this contra- diction.
37.It is very important to mention that as per the complaint (Ex.PW1/A), the accused had put his hand inside her salwar and put his finger in her urinating part. However, in the MLC of the prosecutrix (Ex.PW3/B), in the history, the doctor has been told that the accused who is the grand father of the prosecutrix New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 16 of 30 ::-
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had been repeatedly raping her for about two months about 10 times. She was raped the last time on 23.11.2015. However no such deposition was made by Ms.Y (PW2), her mother. Ms.X (PW1), the prosecutrix has also not deposed the same in her ex-
amination in chief although there is a mention in her cross ex- amination on a different line which also remains unexplained by the prosecution as to why it was not disclosed in the complaint, statement under section 164 of the Cr.P.C. or evidence and why it was not reported to the police. The complaint (Ex.PW1/A), FIR (Ex.PW3/E), MLC of the prosecutrix (Ex.PW3/B) are dated 01.12.2015. The statement under section 164 of the Cr.P.C. (Ex.PW1/B) was recorded on 02.12.2015 and the alle- gations made in the history of the patient mentioned in her MLC are not part of the statement under section 164 of the Cr.P.C. Therefore, the allegations of repeated rape for about two by the accused of the prosecutrix appear to be an after thought and strike at the very root of the prosecution story.
38.It can be seen that there are numerous contradictions and incon-
sistencies in the different statements of the prosecutrix espe- cially regarding the manner in which the alleged offence was committed. It also cannot be ignored that the prosecutrix (PW1) as well as her mother (PW2) have admitted in their cross exam- ination that there was a dispute between the accused and the parents of the prosecutrix over the property which indicates the possibility of false implication of the accused. New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 17 of 30 ::-
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39.Where the evidence of the prosecutrix is found suffering from serious infirmities, contradictions and inconsistencies with other material, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is enti- tled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take sup- port from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecutrix is read and considered in totality of circumstances along with other evidence on record, in which of- fence is alleged to have been committed, her deposition does not inspire confidence. Prosecution has not disclosed true gene- sis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
40.If one integral part of the story put forth by a witness-pros-
ecutrix was not believable, then entire case fails. Where a wit- ness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreli- able and unworthy of credence and in the absence of special cir- cumstances, no conviction can be based on such evidence. (Re- liance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 18 of 30 ::-
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287 (Del).
41.The above mentioned overwhelming contradictions and glaring inconsistencies in the evidence of the prosecutrix and her state- ment under section 164 of the Cr.P.C. cannot be ignored. The veracity of the testimony of the prosecutrix stands shattered. Consequently, no inference can be drawn that the accused is guilty of the charged offences as the prosecutrix has made dif- ferent inconsistent statements due to which her testimony be- comes unreliable and unworthy of credence.
42.The prosecution has failed to furnish any explanation in respect of the contradictions in the statements of the prosecutrix. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the victim/pros- ecutrix suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecu- tion version.
43.Where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, then no reliance can be placed upon her evidence. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved be- New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 19 of 30 ::-
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yond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecutrix is found to be improbable, prosecution case becomes liable to be rejected. Prosecutrix knew the accused prior to the incident. If evidence of pros- ecutrix is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, her deposition does not inspire confi- dence. Prosecution has not disclosed true genesis of crime.
MENS REA / MOTIVE AND DEFENCE OF THE ACCUSED
44.Regarding the motive of crime, it may be observed that in a case based on evidence, the existence of motive assumed signifi- cance though the absence of motive does not necessarily dis- credit the prosecution case, if the case stands otherwise estab- lished by other conclusive circumstances and the chain of evi- dence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
45.The motive has to be gathered from the surrounding circum-
stances and such evidence should from one of the links to the chain of evidence. The proof of motive would only strengthen the prosecution case and fortify the Court in its ultimate conclu- sion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the ac- New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 20 of 30 ::-
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cused cannot be convicted. Motives of men are often subjective, submerged and un-amenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
46.In the present case, a story has been projected that the accused has committed penetrative sexual assault upon his grand daugh- ter aged 09 years by inserting his finger in her vagina. This ver- sion appears to be untrue as there is no reason why he would do so. No reason is shown as to why the accused would jeopardize his future. There is nothing on the record to show that the ac- cused has committed the offences, as alleged by the prosecu- tion. He is a mature man and capable of understanding the im- plications of his acts. He has completely denied having commit- ted the offence.
47.In the present case there is sufficient evidence on record to show that the accused did not have a motive to commit the of- fence. A witness is normally to be considered independent un- less he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 21 of 30 ::-
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falsely. However, there can be no sweeping generalization. Each case must be judged on its own facts. These observations are only made to combat what is so often put forward in cases as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
48.In fact, it is borne out from the record that the mother of the prosecutrix with her husband and three daughters was living in the house of the accused. The accused used to say that the father of the prosecutrix had made a hole (ched) in his wall i.e. divided the family and there was a dispute over the property.
49.The defence of the accused of his daughter wanting to grab his property has been substantiated by the evidence of DW1 who is his wife. DW1 has also deposed that her daughter, mother of the prosecutrix, had got married without their consent and was now demanding Rs.10 lacs to vacate the property of the accused. Although no complaints have been filed by the accused or his wife against his daughter and her husband but it is clear from the evidence of the prosecution witnesses that there definitely was dispute over property between the accused and Ms.Y, his daughter.
50.The case of the prosecution has to stand of its own legs and is required to prove all its allegations against the accused and all the ingredients of the offence alleged to have been committed by the accused and cannot take advantage of a weak defence of New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 22 of 30 ::-
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the accused.
51.It is a case of heinous crime of penetrative sexual assault upon a minor girl child aged 09 years, which carries grave implication for the accused, if convicted. Therefore, for convicting any per- son for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused and not merely dwell upon the shortcoming of defence.
52.However, as the prosecution version is unreliable and unbeliev-
able that the accused had commited the offence of penetrative sexual assault upon the prosecutrix and the defence of the ac- cused appears to be plausible that he has not committed any of- fence and has been falsely implicated, there does not appear to be any criminal intention and mens rea on the part of the accused and his defence is believable and consequently, he mer- its to be acquitted.
FINAL CONCLUSION
53.The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the state- ments of Ms.X (PW1) the prosecutrix and Ms.Y (PW2) her mother. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 23 of 30 ::-
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victim/prosecutrix suffers from such infirmities and the proba- bilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the prosecutrix and other prosecution witnesses is that the ac- cused has not committed the alleged offences. The evidence of the other prosecution witnesses is not sufficient for convicting the accused.
54.Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had committed the of- fences. In fact, it is borne out of the record that the defence of the accused appears to be correct that he is innocent.
55.Since the evidence of the prosecutrix (PW1) is neither reliable nor believable as there are overwhelming contradictions in her different statements as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against the accused. The prosecution story does not inspire con- fidence and is not worthy of credence.
56.In the case of Sharad Birdhichand Sarda v. State of Maha-
rastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 24 of 30 ::-
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recorded, which are as under:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. The circumstances should be of conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
57.Applying the above principles of law to the facts of present case, it stands established that the accused had not raped the prosecutrix nor committed any other offence against her. There is no incriminating evidence against the accused. The gaps in the prosecution evidence, the several discrepancies in the evi- dence and other circumstances make it highly improbable that such incidents ever took place.
58.Consequently, no inference can be drawn that the accused is guilty of the charged offences as the testimony of the prosecu- tion witnesses is unreliable and unworthy of credence.
New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 25 of 30 ::-
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59.Onus is always on the prosecution to prove and accused is enti-
tled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take sup- port from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be re- jected.
60.If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which of- fence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
61.It is a case of heinous crime of rape which carries grave impli-
cation for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The pros- ecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several dis- crepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. Here in New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 26 of 30 ::-
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the present case, is a prosecutrix has given different statements and made numerous contradictions and inconsistencies in her own statements as well as with that of her mother which remain unexplained.
62.The prosecution has miserably failed to prove that on unknown dates and time, the accused had inserted his finger in the vagina of the minor prosecutrix, aged about nine (09) years, and even on the night of 30.11.2015, he had inserted his finger in the vagina of the prosecutrix.
63.All the above facts indicate that there is no veracity in the prosecution case in respect of the offences of penetrative sexual assault and rape of the prosecutrix by accused Mr.Satya Prakash Verma and the accused merits to be ac- quitted for the offences under section 06 of the POCSO Act. He also merits to be acquitted of the alternate charge for the offence punishable under section 376 of the IPC.
64.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against the accused Mr.Satya Prakash Verma.
65.Accordingly, Mr.Satya Prakash Verma, the accused, is hereby acquitted of the charges for the offences of penetra- tive sexual assault upon the prosecutix punishable under New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 27 of 30 ::-
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section 06 of the POCSO Act and the alternate charge of rape upon the prosecutrix punishable under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
66.Compliance of section 437-A Cr.P.C. is made in the order sheet of even date.
67.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
68.It would not be out of place to mention here that today there is a public outrage and a hue and cry is being raised everywhere that Courts are not convicting the rape accused. However, no man, accused of rape, can be convicted if the witnesses do not sup- port the prosecution case or give quality evidence, as in the present case where the evidence of the prosecutrix is neither re- liable nor believable, as already discussed above. It should not be ignored that the Court has to confine itself to the ambit of law and the contents of the file as well as the testimonies of the witnesses and is not to be swayed by emotions or reporting in the media.
69.Here, I would also like to mention, once again, as already ob-
served in several other similar cases, that in recent times a new expression is being used for a rape victim i.e. a rape survivor. New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 28 of 30 ::-
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The prosecutrix, a woman or a girl child who is alive, who has levelled allegations of rape by a man is now called a rape sur- vivor. In the present case, the accused has been acquitted of the charge of rape, after trial. In the circumstances, such a person, an acquitted accused, who has remained in custody for a consid- erable period during inquiry, investigation and trial and who has been acquitted honourably, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.
70.It cannot be ignored that the accused, who is a senior citi-
zen, due to this case which has ultimately ended in his ac- quittal, has suffered humiliation, distress and misery besides the expenses of the litigation. His plight may also continue after his acquittal as his implication may have caused an up- roar in society since he is the maternal grand father/ Nana of the minor prosecutrix but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has also remained in custody for a considerable period.
71.It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss. However, his acquittal may give him some solace. He may also file any case for damages, if advised. No one discusses about the dignity and honour of a New Sessions Case Number : 57427/2016 Old Sessions Case Number : 10/2016 FIR No. 1213/2015, Police Station Nihal Vihar Under section 376/376(2F) of the Indian Penal Code. Section 4/6 of POCSO Court State versus Satya Parkash Verma -:: Page 29 of 30 ::-
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man as all are only fighting for the rights, honour and dig- nity of women and children. Laws for protection of women and children are being made which may be misused by a woman or child but where is the law to protect a man from such a woman and child where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man.
72.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
73.After the expiry of the period of limitation for appeal and com-
pletion of all the formalities, the file be consigned to record room.
Digitally signed by NIVEDITA ANIL SHARMANIVEDITA ANIL SHARMA Date: 2018.05.01 14:08:41 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 13th day of April, 2018. Additional Sessions Judge-01, West, Special Judge under the POCSO Act, Tis Hazari Courts, Delhi.
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