Delhi District Court
State vs Mr.Veeru. -:: Page 1 Of 10 ::- on 8 May, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
State
versus
Mr.Veeru
Son of Mr.Hardayal,
Resident of house no. 317, Bazar Kalan,
Uhjani Gramin, District Badau (U.P).
First Information Report Number : 415/2017.
Police Station Moti Nagar.
Under sections 376/363 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 15.02.2018.
Arguments concluded on : 08.05.2018.
Date of judgment : 08.05.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Accused has been produced from judicial custody.
Proxy counsel for the accused.
Parents of the prosecutrix.
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JUDGMENT
1. Mr.Veeru, the accused, has been charge sheeted by Police Station Moti Nagar for the offences under sections 376/363 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 1 of 10 ::-
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of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Veeru has been prosecuted on the allegations that on 10.11.2017, he had kidnapped the prosecutrix Ms.X (aged about 15 years) from her lawful guardianship; he kidnapped the prosecutrix Ms.X with intention that she may be compelled or knowingly or it to be likely that she may be forced or seduced to illicit intercourse or knowingly to be likely that she will be forced or seduced to illicit intercourse; during the period from 10.11.2017 to 19.01.2018, he committed penetrative sexual assault upon the prosecutrix Ms.X several times and committed rape upon the prosecutrix Ms.X repeatedly.
3. 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. Fictitious identity of Mr.Z is given to the father of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed before the Court on 15.02.2018.
5. After hearing arguments, charge for offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC was framed against accused Mr.Veeru vide order dated 07.03.2018 by this Court to which the accused New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 2 of 10 ::-
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had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as (02) witnesses i.e. the prosecutrix Ms.X, as PW1 and Mr.Z, father of the prosecutrix, as PW2.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her father Mr.Z as PW2 has also been examined in camera.
8. The prosecutrix Ms.X as PW1 has seen accused Mr.Veeru who is sitting in a separate enclosure is shown to the witness through one way visibility window on her screen and after seeing accused Veeru on screen, the prosecutrix has identified the accused, as Veeru. She has deposed that "My mother has got accused Veeru falsely implicated in the present case as she wanted to save her brother who is my maternal uncle namely Rinku as he had been raping me for about three years. I had not told my mother about my maternal uncle raping me as I was scared. I do not know the reason why my mother had implicated accused Veeru as she was not aware about Rinku raping me for three years. Rinku resides at Swaroop Nagar, Delhi. He used to visit my house in the absence of my parents and raped me. When my brother was born on 16.02.2018 and my mother was hospitalised, Rinku had come to my residence and raped me again. My younger sister aged New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 3 of 10 ::-
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about 16 years was also at home but she was sleeping at that time. Whenever I used to go to my Nani's house and when she was not at home being away to her work, Rinku used to rape me. My Nani has never beaten me and she treats me with love and affection. I did not tell my Nani about my rape by Rinku as he used to threaten to kill me, in case I disclosed about it to anyone. As my father used to beat me, I could not tell anyone about my repeated rape by Rinku. I had told the father of accused Veeru about my rape by Rinku. Father of accused Veeru resides at Badaoyun, UP. Accused Veeru wants to save me and take me away from my family as they will not take action against Rinku."
9. As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her. She has been cross examined but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that the accused Veeru had enticed me and taken me from my home without the consent of my parents to Daruhera, Haryana where he established physical relations several times with me and confined me for about two months." She has further deposed that "I pray that accused Veeru may be acquitted. I want to marry him. He has not committed any offence. It is wrong to suggest that I am deposing falsely as I want to save the accused since I want to marry him."
New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 4 of 10 ::-
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10.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that the accused Veeru is innocent and has been falsely implicated in the present case. It is correct that he has not committed any offence."
11.The father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused. In his cross examination on behalf of the accused, he has admitted that "It is correct that I have not witnessed the accused committing any offence against my daughter. It is correct that it is possible that my daughter was above 18 years of age when the alleged offence was committed as I do not have her birth certificate."
12.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1 and father of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Veeru that he committed the offences of kidnapping, of forcing or seducing to illicit intercourse, of penetrative sexual assault and of raping the prosecutrix.
13.In the circumstances, as the prosecutrix Ms.X (PW1), who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused as well as father of the prosecutrix (PW2) has not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 5 of 10 ::-
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shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and father, Mr.Z (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
14. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Veeru is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and her father (PW2) has also not deposed anything incriminating against the accused.
15.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
16.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her father (PW2), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 6 of 10 ::-
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prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
18.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
19.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 7 of 10 ::-
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inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
20.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Mr.Veeru. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
21.Consequently, no inference can be drawn that the accused Mr.Veeru is guilty of the charged offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
22.There is no material on record to show that on 10.11.2017, accused had kidnapped the prosecutrix Ms.X (aged about 15 years) from her lawful guardianship; he kidnapped the prosecutrix Ms.X with intention that she may be compelled or knowingly or it to be likely that she may be forced or seduced to illicit intercourse or New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 8 of 10 ::-
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knowingly to be likely that she will be forced or seduced to illicit intercourse; during the period from 10.11.2017 to 19.01.2018, he committed penetrative sexual assault upon the prosecutrix Ms.X several times and committed rape upon the prosecutrix Ms.X repeatedly.
23.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Veeru for the offences of kidnapping, of forcing or seducing her to illicit intercourse, of penetrative sexual assault and of raping the prosecutrix. The witnesses have not deposed an iota of evidence that accused Mr.Veeru has committed any of the charged offences.
24.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 accused Mr.Veeru for the offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
25.Consequently, accused Mr.Veeru is hereby acquitted of the charges for the offences of kidnapping the prosecutrix, of forcing or seducing her to illicit intercourse, of penetrative sexual assault and of raping the prosecutrix punishable under New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 9 of 10 ::-
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sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
26.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
27.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
28.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
29.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Digitally signed by NIVEDITA NIVEDITA ANIL SHARMA
ANIL SHARMA Date: 2018.05.09 15:46:56
+0530
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 08h day of May, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 111/2018.
Old Sessions Case Number : 07/2018.
First Information Report Number : 415/2017. Police Station : Moti Nagar.
Under sections 376/363 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Veeru. -:: Page 10 of 10 ::-