Delhi District Court
State vs . Vishal Gupta on 6 March, 2017
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL SESSIONS JUDGE-01 & SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 813/15
Under Sections : 354/354-A/341 IPC & 10 POCSO Act
Police Station : Seemapuri
Sessions Case No. : 543/16
In the matter of :-
STATE Vs. VISHAL GUPTA
S/o Sh. Pawan Gupta
R/o B-94, 2nd Floor, Dilshad Garden,
Delhi-110095. .......Accused
Date of institution : 26.08.2015
Date of reserving judgment : 06.03.2017
Date of pronouncement : 06.03.2017
JUDGMENT
1. Brief facts of the present case are that on 03.06.2015, DD No. 18-A was recorded at PS Seemapuri at 11.40 a.m. on the information that one person who molested an eight year old girl, has been apprehended at F-156, Dilshad Colony, near Park and Police Booth. Said DD was marked to HC Qamar Abbas for investigation, who reached at the spot where complainant Ms. Pinki Garg w/o Sh. Vijay St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 1 of pages 6 Garg, r/o F-156, S1, Dilshad Colony, Delhi handed over the apprehended person to HC Qamar Abbas and also gave him a complaint in writing, addressed to SHO, PS Seemapuri. In her complaint, complainant stated that on 02.06.2015 at about 03.00 p.m., her daughter (hereinafter referred as child victim/prosecutrix), aged 8 years, student of class 4th, had gone to take curd and when she returned home, she told her that one uncle asked her about the time of opening of garden and then he took her behind a vehicle parked near the school boundary where he forcibly kissed her. Complainant asked the victim to keep eye on that uncle and to tell her (complainant) on seeing him again. Complainant further stated in her complaint that on 03.06.2015, at 11.00 a.m., her daughter/ child victim who had gone for taking food in neighborhood in a religious programme, rushed back to her in scared condition and told her that she had seen that uncle who had forcibly kissed her, standing in the street at which complainant rushed there and with the help of public persons, apprehended that person and called the police at 100 number. Police came and on inquiry, that person/accused disclosed his name as Vishal Gupta S/o Pawan Gupta, R/o Dilshad Colony, aged 35 years.
2. On the basis of complaint of complainant, offences u/s 354/A/354//341 IPC and 8 POCSO Act were made out and accordingly, present case FIR was registered. Investigation was assigned to SI Ina Kumari. During investigation, IO recorded statement u/s 161 Cr.PC of prosecutrix; prepared site plan at her instance; arrested the accused; conducted his personal search; recorded his disclosure statement; prepared pointing out memo of St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 2 of pages 6 the place of offence at the pointing out of accused; got the accused medically examined; produced him before the court from where he was remanded to judicial custody; got recorded statement u/s 164 Cr.PC of the prosecutrix and verified the birth certificate of prosecutrix from MCD showing her date of birth as 29.10.2002 as per which her age was 8 years and 3 months at the time of incident and hence, Section 10 POCSO Act was attracted in place of Section 8 POCSO Act. After completion of investigation, charge-sheet was filed.
3. Copy of challan was supplied to the accused and on 02.11.2015, charge u/s 341/354-/354-A IPC and u/s 10 POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution in support of its case examined following witnesses:
(a) PW1 Prosecutrix is the victim girl, aged 10 years who turned hostile to the identification of accused.
(b) PW2 Smt. Pinky Garg is mother of the prosecutrix who also failed to identify the accused and is also hostile on material points and did not support the prosecution case.
5. In this case, prosecution has cited total 10 witnesses [i.e. prosecutrix (victim girl), Pinky Garg (mother of victim), Mohan Lal (pubilc witness). ASI/DO Pista Sharma, Ms. Ritu Singh MM (who recorded statement of prosecutrix), Sub Registrar, MCD-Shahdara Zone, Ct. Mukesh, Ct. Hare Krishna, HC Qmar Abbas and SI Ina Kumari (IO).
However, prosecution examined two material witnesses i.e. PW1 prosecutrix and PW2 Smt. Pinky, mother of prosecutrix who both failed to identify the accused and did not support the case of St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 3 of pages 6 prosecution. However, after recording of their evidence, ld. Addl. PP for State prayed for adjournment for examining the remaining witnesses. It is seen that besides PW1 prosecutrix and her mother, there was one more public witness namely Sh. Mohan Lal, a public person from whose mobile phone mother of the prosecutrix had made a call at 100 number and he was not a eye-witness of the incident but was only hearsay witness. Since prosecutrix PW1 who is the alleged victim herself has denied the allegation against the accused and her mother PW2 also did not support the prosecution case, prayer of ld. Addl. PP was declined and PE was closed. Statement of accused was dispensed with.
6. I have heard the submissions from Sh. S.K. Tripathi, ld. Addl. PP for State and also heard Sh. Nokil Kumar Advocate for accused. I have also gone through the record.
7. In order to prove the charges framed against the accused, testimony of material witnesses examined in the court is required to be appreciated.
PW1 prosecutrix is the victim girl, aged 10 years. In her testimony before this court as PW1, she turned hostile the case of prosecution on the point of identification of accused. She deposed that in the year 2015 in the month of June, when she was going to market to purchase curd, one person asked her abut the opening time of a nearby park at which she got scared and started running and saw that that person was also coming after her and she rushed to her house and informed her mother. She further stated that as she was scared, someone informed the police and went to Police Station with St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 4 of pages 6 her month. PW1 further stated that nothing wrong happened with her and she was not in a position to identify that person and she had not gone to hospital for any medical examination. With regard to statement u/s 164 Cr.PC Ex.PW1/B, she voluntarily stated that she had made this statement on the advice of one NGO aunty and police offiicals, which was not a correct statement.
PW1 prosecutrix was declared hostile and was cross-examined at length by ld. Addl. PP for State wherein she denied the case of prosecution.
8. The other material witness examined before the court was PW2 Smt. Pinky Garg also failed to identify the accused stating that she was not in a position to identify him. She categorically stated that she has no complaint against any one and did not want accused to be punished as he had not committed anything wrong with her daughter/prosecutrix. This witness was also declared hostile and in her cross-examination conducted at length by ld. Addl. PP for State, she categorically denied the whole case of prosecution and did not utter even a single word against the accused with respect to the allegations as per case of prosecution.
9. Thus, appreciation of the testimony of both the material witnesses clearly shows that they did not support the case of prosecution. From testimony of PW1 prosecutrix, it is clear that she did not identify the accused Vishal Gupta as the same person who had committed alleged offence with her and even though, she also did not support the allegation of forcibly kissing her by that person. Since both the material witnesses including the victim have failed to St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 5 of pages 6 identify the accused, he is entitled for the benefit of doubt. The other public witness Sh. Mohan Lal was a public person and was only hearsay and not eye-witness of the incident and his examination alone in absence of support of prosecutrix and her mother would be exercise in futility. Therefore, in my considered opinion, the prosecution has miserably failed to prove its case against the accused and therefore, accused is entitled for benefit of doubt and consequently for acquittal.
Accordingly, accused Vishal Gupta is acquitted of the charge framed against him. Accused is on bail. His bail bond is cancelled. Surety stands discharged. However, accused is directed to furnish Personal Bond and Surety Bond u/s 437-A Cr.PC in sum of Rs. 10,000/- each for a period of six months, within a week from today.
File be consigned to Record Room after due compliance.
Announced in the open court
today on 06th March, 2017 (SIDHARTH SHARMA)
Addl. Sessions Judge-01 & Spl. Judge (NDPS)
Karkardooma Courts/Shahdara Distt./Delhi
St. Vs. Vishal Gupta, FIR No. 813/15, PS Seemapuri 6 of pages 6