Delhi District Court
Fir No. 519/2015 : State vs Mohd. Junaid: Ps Subhash Place on 3 April, 2018
FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 130/2015)
State Vs. Mohd. Junaid
FIR No. : 519/2015
U/s : 376 IPC & 6/12 POCSO Act
P.S. : Subhash Place
State Vs. Mohd. Junaid
S/o Mohd. Wahid
R/o H. No. WZ273,
Shakur Pur Village,
Delhi.
Date of institution of case : 31.08.2014
Date of arguments : 15.03.2018
Date of pronouncement of judgment : 03.04.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 12.06.2015 on a PCR call, DD no. 28A was recorded in respect of apprehending a boy who was trying to commit some wrong act with a girl child at Gali No. 2, Shri Nagar Page 1 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place Colony. The IO ASI Netra Singh reached the spot where father of the victim met him and gave the hand written complaint of the victim and on that complaint, present FIR was registered. The IO arrested the accused who was already apprehended, conducted his personal search and prepared the site plan. The statement of the victim u/s 164 Cr.P.C. was got recorded to the effect that she was going to her house from the house of her paternal grand mother and one person asked her to lift his goods. He was sitting at the shop of one Sardarji. When she went close to that person, he started misbehaving with her. Her younger brother was also with her. She tried to scream but that person put his hand on her mouth. Her brother left for assistance and she also ran away. She informed this fact to one aunty and that aunty with her two sons apprehended that person. That person also removed her clothes. He also touched his 'toilet wali jagah' to her 'washroom side'. She called her father on phone. The IO thereafter collected the date of birth of the victim who was found to be born on 13.02.2005 and after completion of investigation, chargesheet was filed. Copy supplied. Page 2 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place
2. Charge for commission of offence punishable u/s 6 of the POCSO Act read with Section 5(m) and section 10 of the POCSO Act read with Section 9(m) of the POCSO Act were framed against the accused on 11.12.2015 to which he pleaded not guilty and claimed trial.
3. Prosecution, to prove its case, has examined as many as 13 witnesses.
PW1 is the Duty Officer who has proved on record FIR as EX.PW1/A, endorsement on rukka Ex.PW1/B. There is no cross examination of this witness.
PW2 is the witness from first attended school of the victim who proved the admission form and the affidavit filed by father of the victim at the time of her admission. The date of birth of the victim as per her first attended school is 13.02.2005. This witness proved the original admission form of the victim as Ex.PW2/A and the affidavit of her father Ex.PW2/B and the original admission register EX.PW2/C and her school leaving certificate as Ex.PW2/D. In the cross examination, the witness submitted that no MCD Page 3 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place certificate of the victim was submitted with the school and the school did not conduct any independent inquiry to verify the date of birth of the victim.
PW3 is the victim herself, aged 11 years and her testimony is reproduced herein for the sake of brevity: "Q. Beta batao kya hua tha?
Ans. Ye 12.06.2015 ki baat hain, main karib 6:15 shaam main dadi ke ghar se apne ghar jaa rahi thi.
Q. aapki dadi ka ghar kahan hain? Ans. Hamari pichhali wali gali main. Q Beta fir kya hua?
Ans. Jab main apne ghar aa rahi thi to raaste main ek aadmi mila aur mujh se bola ki mera sama uthwa do aur uske baad wo mere stath chhed khani karne laga.
Q. Beta usne aap se kahan per chhedkhani kari thi? Ans Wo mujhe gali main ek ghar ki stairs ke paas le kar chala gaya tha, us samay mere sath mera bhai bhi tha. Mera bhai 7 years ka hain aur mera bhai us samay us ghar ke bahar hi khada tha.
Page 4 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place Q. Beta usne aapke sath kya chhed khani kari thi?
Ans. Usne meri washroom wali jaghan per apni washroom wali jaghan touch kari thi.
Q. Beta kya usne ye sab kapde pehane hue kiya tha ya fir kapde uttar kar kiya tha?
Ans. Usne mere neeche ke kapde uttar diye the aur apne bhi kapde uttar diye the.
Q. Beta uske baad kya hua?
Ans. Mera chhota bhai ye sab dekh kar wahan se bhag gaya tha aur wo aadmi mere bhai ko pakadne ke liye jab bhaga to main bhi zor se cheelai aur main bhi wahan se bhag gai.
Q. Beta fir kya hua?
Ans. Main bhag kar apne ghar ke second floor per aai aur aunty se phone manga aur maine apne papa ko unke office main phone kiya. Papa ne mummy ko bata diya. Un aunty ke do bete the unhone meri halat dekh kar puchha ki kya hua to maine unhe bataya ki ek aadmi ne mujhe pakadne ki koshish kari thi. Unke dono bete us aadmi ko Page 5 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place pakadne ke liye gaye aur us ko pakad liya aur maine us aadmi ko pehchan bhi liya.
Q. Beta fir kya hua?
Ans. Mere papa pehle ghar per aa gaye the aur mummy baad main aai thi.
Mere papa ne mujh se puchha to maine bataya ki ye wahi aadmi hain jisne mera hath pakda tha. Mere papa ne us aadmi ko 23 chhante bhi maare the. Fir papa ne police ko 100 number per fone kar diya tha.
Q. Beta fir kya hua?
Ans. Fir police aai aur maine police ko bata diya tha per sab kuchh nahi bataya tha.
Q. Beta aapne police ko sab kuchh kyon nahi bataya tha? Ans Kyonki main bahut ghabra gai thi aur darr gai thi.
At this stage the witness has been shown the statement/ complaint from the judicial file, on which she identifies her signatures at point A. The said statement is now Ex. PW 3/A. Q. Beta f ir kya hua?
Page 6 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place Ans. Police us aadmi ko apne sath le gai thi.
Q. Beta kya pehle bhi kabhi aapke court main bayan hue hain?
At this stage, a sealed envelope duly sealed with the seal of AN has been taken out from the judicial file and proceedings U/S 164 CrPC are taken out from it. The said statement / proceedings U/S 164 Cr.P.C. has been shown to this witness on which she identifies her signatures on one page at point A. The said statement is Ex. PW 3/B. Ans. Wo ek uncle the aur unhone mujh se bade pyar se saari baatain puchhi thi aur maine bina darre unhe sab bataya tha.
Q. Beta police ne aur kya kiya tha?
Ans. Police mujhe hospital bhi le kar gai thi.
Q. Beta police ko kya aapne wo jaghan deekha di thi jahan aapke sath
ghatna hui thi?
Ans. Haan, baad main deekhai thi.
Q. Beta ghatna wali jaghan ke aaspaas kya tha?
Ans. Wahan per ek dhobi kapde press karta hain aur us dhobi ne bhi us aadmi ko bhagte hue dekha aur usko pakda bhi tha.
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FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place
Q. Beta kya aap us aadmi ko pehchan sakte ho?
Ans. Haan.
Accused Mohd. Junaid is present in the court today ( correctly identified by the witness through the design of wooden partition). XXX XXX XXX by Ms. Usha Rani Ld Legal Aid Counsel for the accused.
Q. Beta jis ghar ki stairs main accused aapko le gaya tha kya wahan
aur bhi floor the?
Ans. Nahi, bas ek hi floor tha aur sirft stairs ( seedhi) thi.
Q. Beta wo kitne steps per aapko le kar gaya tha? Ans. 12 steps. Q. Beta kya us waqat wahan per rehne wale log the? Ans. Us waqat nahi the. Q. Beta ye baat to sahi hain ki accused ne aapke sath kuchh nahi kiya
tha aur koi aur aadmi ne ye kaam kiya ho sakta hain aur raat hone ke karan aapne ise galat pehchana kyonki ye wahan se guzar raha tha? Ans. Ye kehna galat hain.
Page 8 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place Q. Beta ye baat to sahin hain ki aapka bhai us samay gali main stairs ke paas khada tha?
Ans. Ye baat sahi hain.
Q. Beta kya us samay gali main aaspaas aur bhi log aajaa rahe the? Ans. Ji haan, Vol. Wo ek tang gali hain aur us samay wahan koi nahi tha. Q. Beta accused ne aapko kya saman uthane ke liye bola tha? Ans. Uske paas kuchh bhi nahi tha.
Q. Beta kya ye baat sahi hain ki aap accused ko pehle se jaanti hain? Ans. Ji, haan ye baat sahi hain.
Q. Beta aap accused ko kaise jaanti thi?
Ans. Maine use ek din dekha tha. Hum jis gali se jaate the wo wahan per khada rehta tha.
Q. Beta ye baat to sach hain ki ghatna sathal ke aaspaas bahut saare makan hain aur wahan bahut se log rehte hain?
Ans Ji, haan ye sach hain.
Q. Beta jab aap cheelaye the to wahan per kuchh log ikathe ho gaye
the?
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FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place
Ans ji, haan kaafi log ikathe ho gaye the.
Ye kehna galat hain ki accused ko is case main jhootha fasaya gaya hain. Ye bhi kehna galat hain ki kisi aur aadmi ne mere sath galat harkat ki thi aur kyonki accused wahan se guzar raha tha to logo ne samjha ki wo harkat usne ki hain aur wo galatfehmi main pakda gaya. Ye kehna galat hain ki maine aunty se phone nahi liya aur na hi apne papa ko call kiya tha. Ye kehna galat hain ki mere court main bayan hone se pehle mujhe NGO aunty ne bataya tha ki accused ke khilaf badhachadha kar jhoothe bayan likhwane honge. Ye kehna galat hain ki aaj maine court main jhoothi gawahi di hain."
PW4 is the mother of the victim who has stated that on 12.06.2015, she came to know about the incident with her daughter at about 6.30p.m. when she returned from her office. Her statement and statement of the victim were recorded by the police. In her cross examination, she has stated that victim child had showed her place of incident which was a building consisting of ground to third floor and the said place is hardly two minutes Page 10 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place walking distance from her house. She admitted that police did not record the statement of her son.
PW5 is Ld. M.M. who recorded the statement of victim u/s 164 Cr.P.C already Ex.PW3/B and gave his certificate to its correctness Ex.PW5/B. There is no cross examination.
PW6 is the neighbour of the victim who lives on the second floor of the same property where the victim lives on the fourth floor. She has stated that on 12.06.2015 at about 6.15p.m. She was present at her house along with her two sons when the victim came to their house in perplexed condition and was weeping. The victim asked for mobile phone to call her father. She asked the victim as to what had happened on which she told that a person made an attempt to take her away. One of her sons handed over mobile to the victim who made call to her father. She along with her sons and the victim came down stairs and made inquiries about the said person but no clue thereof could be found. In the meantime, the accused passed through the gali and the victim identified him as the person who tried to take her away. Her sons apprehended the accused and in the meantime, Page 11 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place father of the victim also reached there and one police man from police booth in front of their house also reached there. In the cross examination, she stated tha she cannot say as to what kind of assault was committed on the victim and she was told by the child victim that the accused tried to take her away and she raised an alarm.
PW7 and PW8 are the two sons of PW6 and had deposed on similar lines as that to their mother. Their cross examination is almost same.
PW9 is the father of the victim who has stated that on 12.06.2015 at about 6.15p.m. when he was in his office, his daughter called him and informed that one persons misbehaved with her and public had apprehended him. He immeditely reached his home and found one person already apprehended by the public and his daughter informed about misbehaviour with her. Police came and arrested the accused. His daughter was taken to Bhagwan Mahavir hospital. In the cross examination, he admitted that his daughter told that accused tried to take her away and on the next day that she told about the sexual assault committed on her by the accused.
Page 12 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place PW10 is the second IO who collected the age proof of the victim child and filed the chargesheet. There is no material cross examination.
PW11 is a public witness who used to iron the clothes near the house of the victim and stated that on 12.06.2015, he saw one girl crying and weeping who on inquiry told that one person misbehaved with her and was trying to take her away. The girl thereafter, went upstairs and came down with occupants of the second floor. Thereafter, he along with two boys chased and apprehended the accused. In the meantime, father of the child victim reached and police came and arrested the accused. In the cross examination, he has stated that he did not see the accused committing sexual assault on the victim and he joined the chase with two boys in apprehending the accused as accused started running after seeing said two boys.
PW12 is the first IO who received the DD no. 28A. On inquiry, he reached the spot and arrested the accused who was already apprehended by public persons. Since matter was of sexual assault, he brought all of them to the PS and called NGO counselor who counseled the victim. He Page 13 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place threafter, prepared the site plan, sent the victim to the hospital and thereafter got the statement of victim u/s 164 Cr.P.C. recorded and after the statement, further investigation was handed over to W/SI Shashi Lata as Section 376 IPC was added to the FIR. There is no material cross examination.
PW13 is CMO from Bhagwan Mahavir hospital who examined the victim as well as the accused at hospital. There is no cross examination.
4. In the statement of accused u/s 313 Cr.P.C., accused has stated that he has been falsely implicated in this case because of mistaken identity and he did not commit any offence with the child victim. Accused himself appeared as defence witness and stated that he is tailor by profession and was working at WZ173, Shakurpur in a factory for stitching the shirts. Friday is a holiday in the factory and he was going to see his sister at Agra and was passing in front of a police booth where a crowd had already gathered. Two boys caught hold of him and he did not know those boys. He also saw a small girl at the spot and those boys asked that girl to wrongly Page 14 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place identify him and I was beaten by the crowd. In his cross examination by Ld. APP, he has stated that he has no enmity with those boys and he cannot assign good or proper reason for his implication in the present case.
5. It is argued for the accused that there are improvements in the testimony of the victim as in the original complaint, she did not make any allegation of sexual assault but later on, she not only added that her brother accompanied her at the time of incident but also added a case of sexual assault. The brother who was an important eye witness was not cited for unexplained reasons and none of the witnesses have stated that the victim reported any sexual assault to them and later on she has made up this story in league with her parents and prosecution has failed to prove the case beyond reasonable doubt.
Ld. APP on the other hand has argued that victim has consistently stated about the sexual assault on her and has clarified that at the time of giving statement to the police, she was nervous and could not narrate the Page 15 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place correct facts but later on when she regained her senses, she narrated the entire incident to the Ld. M.M. when her statement u/s 164 Cr.P.C was recorded as well as in the court. It has been argued that the age of the victim cannot be ignored and she being only 11 years old, there can be minor variations which cannot be considered in favour of accused and proseution has proved the offence beyond reasonable doubt.
6. I have heard Ld. Defence counsel and Ld. Addl. PP.
7. As far as date of birth of victim is concerned, the school recorfd of the date of birth of the victim child has been duly proved by the prosecution where her date of birth is mentioned as 13.02.2005. This is the first attended school of the victim and it cannot be considered that her father intentionally gave wrong date of birth at the time of admission. The original admission form, the original admission register and the affidavit of her father has been proved on record and as such prosecution has proved that the victim was minor on the date of incident i.e. 12.06.2015.
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8. Coming to the main incident, it is important to note that the victim in her hand written complaint Ex.PW3/A has stated that at about 6.15p.m. one person asked her to help him in lifting his goods and when she refused he caught hold her hand and asked her to come with him. He tried to drag her forcibly and she ran away freeing herself from the accused. In this statement, she did not make any allegation about sexual assault nor she stated that her brother was with her at the time of alleged incident. It is important to record that this is not a statement recorded by the police but it is a hand written complaint addressed to SHO by the victim in the presence of her father after counseling and it cannot be said the victim was nervous or perplexed at that time to give correct version of incident. Further, in this statement, she has stated that she after rescuing herself, went upstairs on the second floor and called her father on phone. In the meantime, the iron man and some public person chased and apprehended the accused. In the meantime, her father came and she told him that this is the man who caught her from her hand. In her statement recorded u/s 164 Cr.P.C, she stated Page 17 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place that accused was sitting on a bench at the shop of one Sardarji. The accused was saying that no one is listening him and when she went to him he started abusing her and when she tried to scream, he closed her mouth with his hand. Her brother left for help and she also ran away. In this statement, she has mentioned that accused was sitting on bench at the shop of one Sardarji but that Sardarji was neither interrogated nor he was made a witness in the case. Another important eye witness i.e. younger brother of the victim was also not cited as a witness in this case. In this statement, she has stated that two sons of aunty chased and apprehended the accused. Here she did not mention about the iron man who was referred in the original hand written complaint where these two boys were not mentioned. She also added that he removed her clothes and touched his 'toilet wali cheej at her washroom side'. The place where the accused removed her clothes and touched his private part to her private part was not mentioned. Later on, when she was examined in the court, she has stated that the accused took her to the stairs of a nearby house and at that time her brother was also with her and then accused removed her clothes and Page 18 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place his clothes and touched his washroom wali jagah to her washroom wali jagah and on seeing this, her brother ran away and that man chased his brother and she also ran away. It is not clear that when the accused chased the brother of the victim then how he was apprehended at the spot. Since admittedly in the meantime the victim ran and went to the second floor of her house, called her father from a mobile of a neighbour and then they all came down and still accused was found in the same street and the victim identified him and he was apprehended. As per record, PW6, PW7 and PW8 have stated that when they came down with the victim child, no clue of the persons who misbehaved with the victim was found and then the victim identified a man passing through the gali as the person who misbehaved with her and he was apprehended. It is very surprising that the accused who as per victim ran to chase her brother was still roaming in the gali inviting his apprehension and arrest. The story of the prosecution does not appear to be plausible. Further the victim made material improvement from her hand written complaint till her deposition in the court. The victim has admitted that the alleged placed of incident was densely populated and Page 19 of 20 FIR No. 519/2015 : State V/s Mohd. Junaid: PS Subhash Place many public persons gathered when she screamed. None of those persons saw the accused running or chasing the brother of the victim. Further the site plan Ex.PW11/C shows the place of incident on road whereas as per victim she was taken to a house and on the stairs of that house leading to the first floor, the alleged act of sexual assault was committed. The prosecution has failed to proved commission of any of offence against the accused beyond reasonable doubt. Accused Mohd. Junaid is given benefit of doubt. Accordingly, he is acquitted. He is in JC. He be released forthwith from JC, if not required in any other case or proceedings.
File be consigned to record room.
(Announced in the open (Amit Kumar)
Court on 03.04.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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