Delhi District Court
Fir No. 801/14 : State vs Mohar Singh : Ps Vijay Vihar on 31 March, 2018
FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 212/14)
State Vs. Mohar Singh
FIR No. : 801/14
U/s : 354/354A IPC
& Sec. 12 of POCSO Act
P.S. : Vijay Vihar
State Vs. Mohar Singh
S/o Sh. Saudan Singh
R/o House no. C72,
Budh Vihar, PhaseII,
Delhi.
Date of institution of case : 27.10.2014
Date of arguments : 28.03.2018
Date of pronouncement of judgment : 31.03.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 23.07.2014, DD no. 43 B was recorded on the telephone on the call of HC Tuka Ram, who Page 1 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar informed that after receiving DD no. 28A dated 23.07.2014, he reached at C72, Budh Vihar, PhaseII, New Delhi and there, the mother of the victim met him and informed that her neighbour accused Mohan Singh has done 'chedchad' with her five year old daughter S. He asked to send some lady officer and W/ASI Krishna reached the spot, where mother of the victim gave her statement that she is living at this address for the last 5/6 months and today, her daughter S was playing outside the room and she returned to the room and informed the complainant that accused has lifted her frock. She immediately complained to the wife of the accused and thereafter, called the police. The complainant refused for medical examination of her daughter, as nothing of that sort had happened. On her statement, present FIR was registered and accused was arrested. The statement of the victim was got recorded u/s 164 Cr.P.C, where she reported that accused removed her panty and his pant and then asked her to marry him and did not do any other act. She reported the matter to her mother. After completion of the investigation, present charge were filed. Page 2 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar
2. Copies were supplied to the accused and charges for the offence punishable u/s 12 of POCSO Act r/w 11 (i) and (ii) of POCSO Act and in the alternative u/s 354B IPC as well as charges u/s 509 IPC were framed against the accused on 26.10.2015, to which, he pleaded not guilty and claimed trial. The prosecution to prove the case examined 8 witnesses.
3. PW1 is the duty officer who received the rukka sent by W/ASI Krishna through Ct. Om Parkash and recorded the present FIR Ex. PW1/A. He also recorded DD no. 39A regarding registration of the FIR Ex. PW1/B. There is no material cross examination.
4. PW2 is the doctor, who deposed on behalf of Dr. Kuldeep and Dr. Vinod Kumar, who examined the accused vide MLC Ex. PW2/A. There is no cross examination.
5. PW3 is ld. MM who recorded the statement of victim u/s 164 Cr. PC Ex. PW3/B and appended her certificate to the correctness of the statemet Page 3 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar as Ex. PW3/C. There is no cross examination.
6. PW4 is the constable, who recorded DD no. 43B dated 23.07.2014 Ex. PW4/A. There is no crossexamination.
7. PW5 is the initial IO HC Tukka Ram, who stated that on 23.07.2014, at 1.50 pm, he received information at PS that at C37/38, Sector01, Avantika, behind Durga Mata Mandir, illegal liquor was being distributed and flesh trade is also going on. The said information was recorded in DD no. 28A Ex. PW5/A. He accordingly, went to the spot C72, Budh Vihar, Phase2, where the complainant met him and reported about molestation on her five year old daughter S. Finding it a case of sexual assault on a minor girl, he immediately called the Police station to send a lady officer. The said information was recorded vide DD no. 43B already Ex. PW4/A. In the crossexamination, he admitted that he met one social worker at Police station, who told him that the place of incident is C72, Budh Vihar. He however, denied the suggestion that accused has been falsely Page 4 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar implicated in this case as he objected to the illegal acts of the complainant.
8. PW6 is the victim herself and her testimony is reproduced herein for the sake of brevity.
"Q. Beta kya aap Arun ko jaante ho?
Ans. Wo hamare pehlewale ghar ke paas rehta tha.
Q. Beta kya ab aapne dusra ghar le liya?
Ans. Haan, hum phase one main aa gaye.
Q. Beta batao kya hua tha?
Ans. Unhone mera frock uthaya tha aur mujh se kaha
tha ki mujh se shaadi kar le.
Q. Beta aapse aisa kisne kaha tha?
Ans. Arun ke papa ne.
Q. Beta fir aapne kya kiya?
Ans To main roterote mummy ke paas aai aur saara
baat mummy ko bata diya.
Q. Beta aap roye kyon the?
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FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar
Ans. Kyonki mujhe darr lag raha tha Arun ke papa se.
Q. Beta Arun ke papa kaise hain?
Ans. Arun ke papa gande hain.
Q. Beta fir kya hua?
Ans. Fir police aai.
Q. Beta kya aap Arun Ke papa ko pehchan sakte ho?
Ans. Haan."
Witness has correctly identified the accused in the court. During crossexamination, the child victim stated as under : "Main apne kamre ke bahar khel rahi thi tab mujhe Arun ke papa ne hath ka ishara kar ke bulaya tha. Us din maine frock pehna tha. Uncle ne mujhe khelne ke liye aur pyar karne ke liye nahi uthaya tha. Ye kehna galat hain ki uncle ne mujhe se nahi kaha tha ki shadi kar lo. Main Ravi uncle ko jaanti hu aur aaj hum unhi ke Page 6 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar sath court aaye hain. Ye kehna sahi hain ki jaise jaise Ravi uncle ne mujhe kehne ko bola tha waise waise main keh diya tha. Aaj bhi jo Ravi uncle ne mujhe bataya maine keh diya. Ye kehna galat hain ki main Ravi uncle ke kehne per aaj bata rahi hu. Vol. Aisa hua tha. "
9. PW7 is the mother of the victim, who has stated that on 23.07.2014, she was living at C72, Budh Vihar, where accused was also living as tenant. In the afternoon, her daughter, who was playing outside her room, came to her weeping and informed that father of Arun (accused) has misbehaved with her by removing her frock and asking her to marry him. She immediately went to the room of the accused and slapped him and accused pushed her outside the room and thereafter, she called the police at 100 number. Police came, made inquiries and recorded her statement Ex. PW7/A. She refused for medical examination of the victim as nothing of that sort had happened. Police prepared site plan Ex. PW7/B at her Page 7 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar instance and arrested the accused vide arrest memo Ex. PW7/C and conducted his personal search vide memo Ex. PW7/D. In the crossexamination, she admitted that other tenants were also residing around the room of the accused and she had very good acquaintance with the wife of the accused. She also admitted that she has come to the court with one Ravi Tyagi, who is running an NGO, who was also present, when she called the police and she was earlier working in his office. She however, denied the suggestion that she has falsely implicated the accused in connivance with Ravi Tyagi as accused used to object to the immoral activities going on in the room of the complainant.
10. PW8 is the second IO, who conducted the entire investigation after receiving DD no. 43B. She got the FIR registered and recorded the statement of the complainant and arrested the accused and after completion of the investigation, filed the charge sheet.
In the crossexamination, she admitted that one Ravi Tyagi, an owner of an NGO, had come to the Police Station on behalf of the complainant. Page 8 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar She also admitted that there was many rooms of different tenants around the room of the accused and the complainant and none of them came forward to make any statement.
11. In the statement of the accused, recorded u/s 313 Cr.P.C, he has stated that he has been falsely implicated in this case by using the child victim by Ravi Tyagi, who advised the complainant to register a false case against the accused in order to get good compensation from the Government and no such incident took place.
12. It has been argued for the State that victim is only five year old and there are no improvements or contradictions in her statement and minor variations, if any, should not be considered. Keeping in mind the tender age of the victim and the time gap between the date of incident and deposition in the court. It is argued that sole testimony of the victim is sufficient to convict the accused, who has been duly identified in the court by a five year old child and the prosecution has proved the commission of all the offences Page 9 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar beyond reasonable doubt.
13. Ld. LAC on the other hand, has argued that there are contradictions in the statements of the victim recorded u/s 164 Cr.P.C and the one recorded by the court and further, the prosecution itself has filed copy of DD no. 28A dated 23.07.2014 to the effect that initial complaint was in respect of trade of illegal liquor and flesh trade at C37/38, Avantika, which later on, was converted into a new complaint of sexual assault on girl child victim and accused has been able to show that he has been falsely implicated and the testimony of the victim child is unreliable and uncorroborated and prosecution has failed to prove the offence beyond reasonable doubt and accused should be acquitted.
14. I have heard ld. Addl. PP and the LAC Ms. Usha Rani and have perused the record carefully.
15. As far as the age of the child victim is concerned, same is not in Page 10 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar dispute as it has not been challenged throughout trial on behalf of the accused that the child victim was not five year old and as such, it is held that child victim was five year old as on the date of alleged offence.
16. Coming to the main offence, it cannot be ignored that initially DD no. 28A dated 23.07.2014, was recorded on a PCR call in respect of illegal trade of liquor and flesh trade at C37/38, Sector01, Avantika and that call itself stated that some lady police be sent. It appears that lady police was called as the PCR call was in respect of flesh trade. HC Tukka Ram was entrusted with this DD and he later on called and stated that after receiving DD no. 28A, he reached the spot i.e. C72, Budh Vihar, Phase2. Admittedly, Avantika and Budh Vihar are separate localities, which may be under the jurisdiction of same Police Station, but are at some distance and how IO reached C72, Budh Vihar, Phase2, when the complaint was of C 37/38, Sector01, Avantika, has not been explained by the prosecution. Further, PW5 HC Tukka Ram in his crossexamination stated that before proceeding to the spot after receiving DD no. 28A, one social worker met Page 11 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar him at Police Station and told him that the spot of incident is C72, Budh Vihar. How that social worker informed HC Tukka Ram about C72, Budh Vihar, remains a mystery and further statement of the that social worker was not recorded nor he was made a witness by the prosecution. Admittedly, PCR call was received at Police Station in respect of some illegal activities of liquor and flesh trade at C37/38, Avantika, then how that alleged social worker told IO that the spot of incident is C72, Budh Vihar is unexplained. Record shows that DD no. 28A is at about 1.50 pm and DD no. 43B is at 2.30 pm. How that social worker at 1.50 pm itself came to know that the place of incident was C72 remains unexamined. This cast a serious doubt on the prosecution story of the sexual assault upon the child victim. Further, victim herself is not reliable as she had made contradictions in her statement recorded before filing charge sheet as compared to the one recorded in the court. She stated to the IO that accused removed her underwear and she informed her mother, who beat the accused. In the statement u/s 164 Cr.P.C, she made improvements and stated that accused removed her underwear and also removed his pant and then told her, "lele" Page 12 of 14
FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar and then asked her to marry him. Later on, while deposing in the court, she stated that accused lifted her frock and asked her to marry him. Her statement is not consistent and the variations does not appear to be natural. It cannot be ignored that police recorded her statement on 23.07.2014 and the statement u/s 164 Cr.P.C was recorded on 25.07.2014, yet there are variations in these two statements and these variations are much larger, when she deposed in the court. Further, the complainant in her original complaint Ex. PW7/A has stated that after hearing about the sexual assault on the victim, she immediately informed the wife of the accused and then called the police. Whereas in her deposition in the court, she stated that after hearing the complaint, she immediately went to the room of the accused and slapped him, who pushed her outside the room and then, she called the police. Here, she has not stated that she informed the wife of the accused and then called the police and made improvements by saying that she slapped the accused, who pushed her out of his room. It is also important to note that even after having slaps from the complainant as alleged, the accused did not run away and was arrested by the police from Page 13 of 14 FIR No. 801/14 : State V/s Mohar Singh : PS Vijay Vihar his room. Further, no public witness i.e. immediate neighbours were interrogated or joined in the investigation to corroborate the prosecution case. The prosecution as such, has failed to prove commission of any offence by the accused beyond reasonable doubt. The benefit of doubt as per law should go to the accused. The accused such as is acquitted. The bail bond stands canceled and surety bond stands discharged. Endorsement, if any on the documents of accused or his surety be canceled. The original documents of accused or his surety, if on record, be returned to him forthwith.
17. File be consigned to Record Room.
(Announced in the open (Amit Kumar)
Court on 31.03.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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