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Delhi District Court

State vs . on 10 January, 2018

                       IN THE COURT OF SH. LAL SINGH
                      ADDITIONAL SESSIONS JUDGE -06,
               EAST DISTRICT : KARKARDOOMA COURTS DELHI.

SC No.1855/16
FIR NO.862/15
P.S. Krishna Nagar
U/S 323/506 IPC & U/S 12 of POCSO Act

State

                                        Vs.

1. Vijay Kumar
S/o Sh. Ram Siroman
R/o H. No.X-3774/2, Gali No.8,
Shanti Mohalla,Delhi.                                                                                                                                             ....Accused
2. Mohd.Yunus
S/o Late Mohd. Ayyub,
R/o H No.2068, Gali No.19B,
New Mustafabad, Delhi.                                                                                                                                            ....Accused

Date of institution                                                                                                                                               :02.04.2016
Date when reserved for judgment                                                                                                                                   :08.01.2018
Date of judgment                                                                                                                                                  :10.01.2018

JUDGMENT

1. The brief facts of the case are that the victim has alleged against the accused that on 26.11.15 at about 12.50 PM, after school hours, she was going towards her house from the school on rickshaw and when she reached at Delhi Darbar shop, two persons on the motorcycle came there and one of the boy alighted from the motorcycle and caught hold of her hand and also slapped her and the said persons were asking her mobile number. The victim has also alleged that those persons had also threatened her not to come to school and they were also insisting her to sit on the motorcycle and when she raised SC No.1855/16 State Vs. Vijay Kumar & Anr.

alarm, then the public persons assembled at the spot. However, in the meanwhile, the person who was driving the motorcycle ran away from the spot but the victim had apprehended the other person/accused and the public also started beating the said person and by that time, the brother of the victim, namely Puneet also came over there and thereafter, said person/accused was taken to the police station by them and on enquiry, the said person/accused disclosed his name as Yunus. Thus, on the complaint dated 26.11.15 of victim the FIR bearing No.862/15 P.S. Krishna Nagar, has been registered against the accused. Thereafter, the accused Yunus was arrested vide arrest memo and his personal search was also conducted vide personal search memo. During investigation, police had also prepared the site plan and recorded the statement of witnesses u/s 161 Cr. P.C. The disclosure statement of accused Mohd.Yunus was also recorded and accused Mohd. Yunus disclosed the name of his co-accused as Vijay Kumar and at the instance of accused Mohd. Yunus, his co-accused Vijay Kumar was also arrested from his house vide arrest memo and his personal search was also conducted vide personal search memo. During the course of investigation, police had also recorded the disclosure statement of accused Vijay Kumar. Further, the police had also got recorded the statement of victim u/s 164 Cr. P.C., before the concerned Magistrate. After completion of investigation, chargesheet against the accused persons for the offence punishable u/s 354/354(B)/34 IPC and U/s 8 & 12 of POCSO Act has been filed.

2. Thereafter, vide order dated 22.11.16, the charge for the offence punishable 323/506 IPC & U/S 12 of POCSO Act, SC No.1855/16 State Vs. Vijay Kumar & Anr.

have been framed against both the accused to which accused persons pleaded not guilty and claimed trial.

3. In this case, the prosecution has examined 06 witnesses so as to prove its case, namely PW -1 (Victim), PW-2 Ct.Monika Tomar, PW-3 Sh. Puneet, PW-4 Ct. Deepak Kumar, PW-5 HC Harkesh and PW-6 SI Amrit Lal.

4. Thereafter, statement u/s 313 Cr. P.C., of accused persons were recorded, in which they have denied the allegations against them and submitted that they have not committed the alleged offence. The accused persons in their statement u/s 313 Cr. P.C., submitted that they are innocent and they have been falsely implicated.

5. Argument heard.

6. Ld. Addl. PP for the State submitted that the victim (PW-1) has given the complaint to the police regarding the alleged incident in her own hand writing and the victim has also made statement u/s 164 Cr. P.C. He further submitted that the victim had been won over by the accused persons and hence, she has not supported the prosecution case.

7. Sh. H. Rahman, Ld.Counsel for accused no.2 (Mohd. Yunus) submitted that the victim had specifically denied in her testimony that she had ever given the complaint against the accused. He argued that moreover, the victim ( PW-1) has even not identified the accused persons in this case. Further, PW-3 who is the brother of the victim has also not supported the prosecution case. Ld. Counsel for accused no.2 submitted that the prosecution has failed to prove the offence alleged against the accused.

8. I have considered the submissions of parties and SC No.1855/16 State Vs. Vijay Kumar & Anr.

also perused the file and gone through the evidence on record.

9. In the instant matter, the prosecution has examined 06 witnesses so as to prove its case. PW-2 Ct. Monika stated that the victim has given her statement vide Ex.PW2/A in her presence in the police station. PW-2 further stated that she along with victim and IO had gone to the place of incident where IO has prepared the site plan. Thus, PW-2 is formal witness in whose presence, the statement Ex.PW2/A was given by victim and site plan was prepared by IO.

PW-4 Ct. Deepak, was handed over the copy of FIR No.862/15, P.S. Krishna Nagar by D.O. PS Krishna Nagar on 26.11.15 with the instruction to hand over the same to IO SI Amrit Lal and accordingly, PW-4 went to main road Krishna Nagar near Delhi Darbar restaurant and handed over the copy of FIR to SI Amrit Lal. Thus, PW-4 is also a formal witness in this case.

10. PW-5 HC Harkesh has also joined investigation along with IO of the case and on 26.11.15, he accompanied the IO to a place near Delhi Darbar restaurant, where they had came to know that one person had already been taken to PS by victim and her brother. Thereafter, PW-5 along with IO came back to PS where the victim and her brother along with accused Yunus were present in the PS and IO had made enquiry from the victim and accused. On interrogation, the said accused has disclosed his name as Mohd. Yunus and he also disclosed the name of his co accused as Vijay. Thereafter, PW-5 along with IO and accused Yunus went at H No. 3774, Gali No.8, Shanti Mohalla, where accused Yunus identified his co-accused Vijay and IO had apprehended the accused Vijay. PW-5 deposed that SC No.1855/16 State Vs. Vijay Kumar & Anr.

accused Vijay was arrested vide arrest memo Ex.PW5/A and Yunus was arrested vide arrest memo Ex.PW5/B respectively and their personal search were also conducted vide personal search memo Ex.PW5/C & Ex.PW5/D respectively. Thus, PW-5 has also joined the investigation in the present case along with IO of the case and in his presence both the accused were arrested.

11. PW-6 SI Amrit Lal is IO of the case, who was assigned DD No.9A vide Ex.PW6/A on 26.11.15 and thereafter, he along with Ct.Harkesh went to the spot and where on inquiry, they came to know that victim party had apprehended one boy and taken him to PS. After that PW-6 along with Ct. Harkesh came back to PS where one boy along with victim and her brother were found present. PW-6 has called Ct. Monika and Ct. Monika had made inquiry from the victim and victim gave her complaint vide Ex.PW2/A and PW-6 had also put his endorsement on the said complaint, vide endorsement Ex.PW6/B and got registered the FIR vide Ex.PW6/C. On interrogation from the boy apprehended by victim and her brother, the said boy had disclosed his name as Mohd. Yunus. PW-6 had also prepared the site plan at the instance of victim vide Ex.PW6/D. As per PW-6, co-accused Vijay was arrested from his house at the instance of accused Mohd. Yunus. Accused Mohd. Yunus and Vijay Kumar were arrested vide arrest memo vide Ex.PW5/B and vide Ex.PW5/A respectively. PW-6 had also recorded the disclosure statement of accused Mohd.Yunus and accused Vijay vide Ex.PW6/E and vide Ex.PW6/F respectively. PW-6 had also recorded the statement of victim and her brother Puneet, u/s 161 Cr.P.C., vide SC No.1855/16 State Vs. Vijay Kumar & Anr.

Ex.PW6/G and Ex.PW3/A respectively. PW-6 has also got recorded the statement u/s 164 Cr. P.C. of victim vide Ex.PW6/I. In cross examination, PW-6 denied the suggestion that complaint Ex.PW2/A is not in the hand writing of victim or victim was tutored to give statement before the Ld. MM according to the version of statement Ex.PW2/A. Thus PW-6 has proved the documents as prepared by him during the course of investigation.

12. In the instant matter, PW-1 (victim) and PW-3 Sh. Puneet (brother of the victim) are the material witnesses. However, both PW-1 and PW-3 have not supported the case of the prosecution. PW-1 (victim) also could not tell the date, month and year of the incident. Though PW-1 stated that at the time of incident she was studying in 8th or 9th standard. As per the complaint Ex.PW2/A, the incident is of 26.11.15. The statement/testimony of victim was recorded on 06.11.17 during trial in the court. Thus, the alleged incident was not such a remote in time, that the victim even could not tell the month and year of the incident. Further, in her testimony, PW-1/victim stated that 3-4 boys came on motorcycle at the place of incident and asked her to stop by saying "ruk jao- ruk jao, baat sun lo"

and they were also asking the mobile number of her and on this when she got scared and started shouting for help, then crowd gathered and in the meanwhile one aunt (aunti) also came there and asked from her about the incident. PW-1/victim also stated that in the meanwhile all those boys except one managed to flee away from the spot and the said one boy was caught by the public and they handed over him to police, whereas in her statement u/s 164 Cr. P.C., PW-1/victim had stated that her SC No.1855/16 State Vs. Vijay Kumar & Anr.

brother had caught that one person/accused who could not flee from the site. Moreover, in her complaint Ex.PW2/A the victim stated that she had apprehended one boy at the spot and other boy who was driving the motorcycle ran away from the spot. Thus, there is clear contradiction in her testimony with regard to the complaint given to the police and statement u/s 164 Cr.P.C., as to who actually apprehended the accused Yunus at the spot. Otherwise also, in her statement u/s 164 Cr. P.C., vide Ex.PW6/I the victim stated that accused have also hit her brother by bike and further both the accused have also slapped her, whereas in her testimony as well as in her complaint Ex.PW2/A, the victim/PW-1 had not stated that accused had hit her brother by motorcycle or also slapped her by both the accused. Moreover, in her testimony PW-1 stated that her brother Puneet came there about to 5-10 minutes from the call made to her brother by one Aunt at the spot. Thus, there is clear contradiction in the version of victim/PW-1 as given to the police as well as given to the Ld. MM and as testified in the court during her evidence.

Moreover,PW-1 had in her testimony, shown her ignorance to the fact whether she had given complaint dated 26.11.15 to the SHO P.S. Krishna Nagar. PW-1 also did not identify her signatures on the complaint Ex.PW2/A as well as on statement u/s 164 Cr. P.C., vide Ex.PW6/I. Further, PW-1 stated that she had not seen the accused persons properly at the time of incident and so she cannot identify them. The PW-1 has also failed to identify even the boy who was apprehended at the spot. Thus, PW-1/victim has even failed to identify both the accused. Therefore, the PW-1 has not supported the prosecution case and hence she has shattered the case of the SC No.1855/16 State Vs. Vijay Kumar & Anr.

prosecution.

PW-1 had been cross examined by Ld. Addl. PP for the State. However, the prosecution has failed to extract any thing in favour of the prosecution in the cross examination of PW-1.

13. PW-3 Sh.Puneet who is brother of the victim also failed to tell the date and month of the incident. PW-3 stated that one day in the year 2015, at about 1.00-1.15 PM, he received a call from one lady who informed him that victim was crying and thereafter he also reached at the place situated on Jain Mandir road/spot where he found one lady Aunt alongwith victim. PW-3 deposed that he told the said lady that victim is his sister in distance relation and the said lady disclosed about the incident to him and thereafter, he brought the victim to her house. PW-3 also stated that thereafter, he along with victim and mother of the victim went to PS on his motorcycle and he dropped the victim and mother of victim at the gate of the PS and after that he went for his duty. PW-3 stated that Police had not recorded his statement at any point of time. Thus, PW-3 has also not supported the case of the prosecution. PW-3 has even denied giving of statement to the police. PW-3 was also cross examined by the Ld.Addl.PP for the State but in the cross examination of PW-3 nothing material in favour of the prosecution could be extracted from PW-3. Further PW-3 also stated that he does not know the accused persons. Thus, PW-3 also failed to identify both the accused. Though, in the arrest memo of accused Vijay Kumar vide Ex.PW5/A and arrest memo of accused Mohd. Yunus vide Ex.PW5/B, PW-3 (Puneet) has been made as a witness of the above arrest memos as SC No.1855/16 State Vs. Vijay Kumar & Anr.

prepared at the time of arresting of both the accused. However, PW-3 categorically stated that he does not know the accused persons. Thus, PW-3 have also not supported the prosecution case and same proved fatal to the prosecution case.

14. Therefore, in view of the reasons as discussed above, the prosecution has failed to prove the offence alleged against both the accused ( Vijay Kumar and Mohd. Yunus) and hence, the accused are entitled to be acquitted. Accordingly, both the accused ( Vijay Kumar and Mohd. Yunus) are acquitted for the offence punishable u/s 323/506 IPC and offence punishable u/s 12 of POCSO Act. Accused are acquitted in this case. Bail bond of the accused persons stands cancelled and sureties also discharged.

However, in terms of Section 437A Cr. P.C., accused are directed to furnish a fresh bail bond in the sum of Rs.10,000/- each with one surety each in the like amount and same shall remain valid for a period of six months.

15. File be consigned to record room.

Announced in the open court (Lal Singh) On 10th Day of January 2018. ASJ-06, EAST DISTRICT Kakardooma Courts,Delhi.

10.01.2018 SC No.1855/16 State Vs. Vijay Kumar & Anr.