Delhi District Court
6 vs . on 10 August, 2016
1
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
ID no.02401R 0240 11 2015
SC No.: 84/2015 (old No.)
56766/2016 (New No.)
FIR No.: 235/15
PS : Ranhola
U/S : 363/376D/328/120B of IPC & Sec.4/12 of POCSO Act.
The State
(Govt. of NCT of Delhi)
Vs.
Chanderkant @ Chinku
S/o Sh. Jugal Kishore
R/o House no. A18, Gali no.4, Sainik Enclave,
Vikas Nagar, Delhi ...... Accused
Date of Institution : 02.05.2016
Date of arguments : 10.08.2016
Date of judgment : 10.08.2016
JUDGMENT:
1 Brief fact of the case of the prosecution are that the FIR no.235/15 was registered on the statement of "Ms.M" i.e. mother of the prosecutrix (presumed name) (the identity of mother of the prosecutrix has been deliberately concealed), wherein, she has alleged that on dated 02.04.2015 at about 12.00 noon her daughter i.e. prosecutrix 'A' (presumed name of the prosecutrix) had gone from her house without giving any intimation. She has also stated that she has searched to the prosecutrix but she could not find & she had suspected that some unknown person had induced & kidnapped away to the prosecutrix. On such statement of the complainant i.e. mother of the prosecutrix, present FIR no. 235/15 was registered U/S 363 IPC in the PS Ranhola.
FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 1 of 8 22 The prosecutrix was found and her statement was also recorded u/s 164 of Cr.PC, wherein, she has deposed about her kidnapping by the accused and also deposed about an other friend of this accused Chanderkant @ Chinku. But, the Investigating Officer is found to be negligent enough, as she did not make sincere efforts to find coaccused of this accused.
3 On completion of the investigation, the accused has been chargesheeted u/s 363/376 (D)/328/120B IPC & Sec.4/12 POCSO Act was filed only again accused Chanderkant @ Chinku, stating therein that no clue of coaccused is found. A nd, on finding the primafacie case, this court had framed the charges u/s363/34, 328/34, 376D of IPC r/w Sec.34 of IPC & Sec.6 of POCSO Act r/w Sec.34 of IPC & Sec.12 of POCSO Act were framed against the accused Chanderkant @ Chinku and the accused was put on trial.
4 In order to prove its case, the prosecution has examined two witness.
5 The prosecutrix 'A' (presumed name) has been examined as PW1 and during her examination in chief, she has identified her kamiz and refused to identify her salwar & panty and denied that accused Chanderkant @ Chiku has done any GALAT KAAM with her. The Ld. APP for the State has sought permission to crossexamine this witness, as she has resiled from her previous statement and Ld. APP for the State was allowed to cross examine this witness and even during her crossexamination by the Ld. APP for the State, she has denied that either the accused had kidnapped to the prosecutrix on the pretext that her father had met with an accident. She has also denied that friend of this accused, who is not arrested by the police, had given handerchief to prosecutrix to clean her sweat or that after using the same, she became unconscious, initially. She has refused to identify her signatures on her statement u/s 164 of Cr.PC, but, thereafter, she has identified her signatures on her statement recorded u/s 164 of Cr.PC, but at the same time, she has deposed that her FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 2 of 8 3 signatures were obtained on plain papers. She has also deposed that accused did nothing with her. The opportunity to crossexamine the witness is given to the Ld. counsel for accused, but, it was done NIL, as he was no more desirous to cross examine the witness PW1.
6 Whereas, 'Ms.M' (presumed name of the mother of the prosecutrix, who is complainant in the present case) has been examined as PW2, who has deposed that she has filed the report of missing of the prosecutrix in the police station and at that time, prosecutrix was studying in 8th class. The opportunity to crossexamine is also given to the counsel for accused, but, he has submitted that he is no more desirous to cross examine the witness PW2, so the opportunity given to him to crossexamine PW2 was done NIL .
7 I have heard the Ld. Counsels for the parties.
8 After examination of these two witnesses, the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, the counsel for accused has opposed the same and submitted that since, the prosecutrix & her mother have failed to support the case of the prosecution, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
9 Since, the prosecutrix and her mother have failed to support the case of the prosecution against the accused, so, in the considered opinion of this court, even if, the remaining prosecution's witnesses are allowed to be examined, even then, the case cannot be resulted in the conviction of the accused. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order. As, in the considered opinion of this court, no purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature.
FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 3 of 8 410 Since, nothing incriminating evidence has come on the record against the accused, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
11 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
12 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 4 of 8 5 withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
13 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 5 of 8 6
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 6 of 8 7 person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
14 Since, in case in hand, the FIR was registered on the statement of mother of the prosecutrix PW2 wherein, she has alleged that prosecutrix has been induced & kidnapped away by some unknown person. She has been examined as PW2 in this court and she has not deposed anything against accused and this witness has failed to support the case of the prosecution. Whereas, the prosecutrix 'A' has been examined as PW1 and even she has refused to identify her salwar & panty. She has categorically deposed in the court that accused did nothing with her. Thus, testimony of the prosecutrix is found to be inconsistent & contradictory.
15 No doubt that the prosecutrix, her mother i.e. complainant have failed to support the case of the prosecution & their testimonies are found to be contradictory & inconsistent to PW2/A, so, in the given circumstances, in view of the material inconsistencies in the testimonies of PW1 & PW2 do not inspire any confidence, because it is well settled principal of law that inconsistencies, which effect the merit of case & which go into the root of matter, are beneficial for the accused.
16 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1 & PW2, this court is inclined to hold that the testimonies of PW1 & PW2 FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 7 of 8 8 are unreliable, untrustworthy & inconsistent, so, the same do not inspire any confidence, and since, the charges against this accused have been framed u/s 363/34, 328/34, 376D/34 of IPC & Sec. 6/12 of POCSO Act, therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/34, 328/34, 376D/34 of IPC & Sec. 6/12 of POCSO Act. Accordingly, the accused is acquitted of the charges framed against him. The accused is directed to furnish the bail bond in the sum of Rs.20,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of Bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 10.08.2016 Additional Sessions Judge01(West)
Tis Hazari Courts, Delhi
FIR No.235/15 PS Ranhola State Vs. Chanderkant @ Chinku Page 8 of 8