Delhi District Court
State vs Mohd. Tosib on 15 November, 2017
IN THE COURT OF SH. PARVEEN SINGH,
JUDGE SPECIAL COURT (POCSO ACT)
ADDL. SESSIONS JUDGE - 01 (NORTHEAST)
KARKARDOOMA COURTS : DELHI
SC No. 44413/15
FIR No. 451/2013
PS Karawal Nagar
U/s 363/366/376/511/323/34 IPC
& Sections 4/18 POCSO Act.
State
Versus
Mohd. Tosib,
S/o Sh. Mohd. Tofiq,
R/o 579, Gali No. 12,
SBS Colony, Karawal Nagar,
Delhi. ....Accused.
Date of Institution : 22.09.2014.
Date of Arguments : 15.11.2017.
Date of Pronouncement : 15.11.2017.
JUDGMENT
Brief facts of the case are that on 03.08.2013, on receipt of FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 1 of 22 ASJ01/NE/KKD: 15.11.17 DD No.5A, HC Mahesh Kumar alongwith Ct. Ashok reached at the informed place i.e. Gali No. 6, SBS Colony. There they came to know that victim had been taken to JPC Hospital. Thereafter, they also went at JPC Hospital. In the hospital, statement of victim was recorded. Victim alleged that whenever she would go to her school, JCL A and S would follow her. She had complained about them to her father. She further alleged that on 03.08.2013 at about 01.00 a.m., when she went to bolt the door of her house, JCL A and S forcibly took her on the roof of their factory. There, they both molested her and misbehaved with her. When she raised alarm, her father and brother came on the roof. However, those two boys had thrown her on the rear side street. Those two boys also called their family members and they all started fighting with her father. One Tosif hit a brick on her father's head. On these allegations, FIR u/s 354/354D/342/323/34 IPC was registered.
2. During the investigation, JCL A, JCL S and accused Tosib were arrested. After recording of statement of victim u/s 164 Cr.P.C, sections 376/511 IPC and sections 4/18 POCSO Act were added. After completion of investigation, charge sheet u/s 354B/363/366/342/323/376/ 511/34 IPC and Sections 4/18 POCSO Act was filed against accused.
3. On 02.03.2015, charge u/s 363/366/34 IPC, u/s 376/511/34 IPC in alternative u/s 4/18 POCSO Act and u/s 323/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 2 of 22 ASJ01/NE/KKD: 15.11.17
4. The prosecution has examined 15 witnesses to prove its case.
5. PW1 is HC Shailendra. He deposed that in the intervening night of 02/03.08.2013 at about 4.35 A.M, Ct. Ashok gave him a rukka and statement of victim. The rukka was sent by HC Mahesh Kumar. On the basis of the rukka, he registered FIR Ex.PW1/A. On the rukka, he made endorsement, Ex.PW1/B. Thereafter, he handed the original rukka and copy of FIR with statement of victim to Ct. Ashok Kumar to be delivered to ASI Bhuri Singh. He also issued certificate u/s 65B of Evidence Act, which was Ex.PW1/C.
6. PW2 is WCt. Sharmila. She deposed that on 03.08.2013, on the directions of duty officer, she went at JPC Hospital. There she met HC Mahesh and victim. She took the custody of victim and produced her for medical examination. After medical examination of victim, her (victim's) statement was recorded.
7. PW3 is Ct. Ashok Kumar. He deposed that on 03.08.2013, on receipt of DD No. 5A, he alongwith HC Mahesh went at SBS Colony but victim was not there. They came to know that victim had been taken to Jag Pravesh Hospital. From there, they went at JPC Hospital where they met the victim. After medical examination of victim HC Mahesh recorded the statement of victim. Thereafter, HC Mahesh prepared rukka and gave it to him for registration of FIR. He went at PS Karawal Nagar and got the FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 3 of 22 ASJ01/NE/KKD: 15.11.17 FIR registered. After registration of FIR, he handed copy of FIR and original rukka to ASI Bhuri Singh for further investigation. ASI Bhuri Singh arrested JCL M and S. Both JCL M and S were medically examined.
8. PW4 is Ct. Rajesh. He deposed that on 10.01.2014, on the directions of SI Nazma, he took accused Mohd. Tosib to GTB Hospital for his medical examination. After medical examination of accused, doctor handed him four sealed pulindas with one sample seal. He gave those pulindas to SI Nazma. SI Nazma seized those pulindas vide memo Ex.PW4/A.
9. PW5 is SI Nazma. She deposed that on 28.09.2013, investigation of the case was marked to her. On 29.09.2013, she went at the house of victim at SBS Colony where she met victim and her parents. She recorded statement of victim and thereafter, added sections 376/511 IPC and 4/18 POCSO Act. On 30.09.2013, she alongwith Ct. Sonu, went at the house of JCL S and A @ M. SI Ishwari Prasad, JWO was also called there. Thereafter, she apprehended both the JCLs. Both the JCLs were medically examined. Thereafter, she produced both the juveniles before JJB. On 10.01.2014, she called accused Toshib at police station. Ct. Rajesh took accused to GTB Hospital for medical examination. Thereafter, Ct. Rajesh handed her four sealed pulindas with one sample seal, which were given to him by the doctor and she seized those pulindas vide memo Ex.PW4/A. She FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 4 of 22 ASJ01/NE/KKD: 15.11.17 collected the age documents of victim and of both the juveniles. After completion of investigation, she filed charge sheet against both the juvenines before JJB and against Mohd. Toshib in the court.
10. PW6 is the victim. Her testimony shall be considered at a later stage as and when required.
11. PW7 is Brahm Prakash, Manager from New Krishna Public School. He deposed that on 07.04.2012, victim was admitted in their school in class VIII. As per records, the date of birth of victim was 04.08.2000. He proved the copy of admission register as Ex.PW7/A, copy of admission form as Ex.PW7/B and the affidavit given by father of victim as Ex.PW7/C. He also proved the certificate issued by school regarding the date of birth of victim as Ex.PW7/D.
12. PW8 is Dr. Kawal Kumar. He deposed that on 10.01.2014 at about 01.45 p.m, he examined accused Toshif and prepared MLC No. C 117/14 (Ex.PW8/A). He collected blood, semen, pubic hair samples of accused and the underwear of accused and handed them to police official in sealed condition.
13. PW9 is R.Pal, father of victim. PW10 is Smt. M, mother of victim. Their testimonies shall be considered at a later stage as and when required.
FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 5 of 22 ASJ01/NE/KKD: 15.11.17
14. PW11 is Dr. Yogesh Kumar Gupta. He deposed that on 03.08.2013 at about 03.00 a.m., he examined victim and prepared MLC no. 2023 (Ex.PW11/A). After treatment, he referred victim to Gynae and Obs. Department for further treatment and management.
15. PW12 is HC Mahesh Kumar. He deposed that on 03.08.2013 at about 1.00 a.m., on receipt of DD No. 5A, he alongwith Ct. Ashok went at Gali No. 6, SBS Colony, Karawal Nagar. There, they came to know that victim and her father had gone to JPC Hospital. They also went to JPC Hospital. In the hospital, he collected MLCs of victim and her father. Through lady Ct. Sharmila, he recorded statement of victim which was Ex.PW6/A. On this statement, he made endorsement, Ex.PW12/A. He sent the rukka through Ct. Ashok to the police station for registration of FIR. While he was inquiring about the facts of molestation from public persons, ASI Bhuri Singh, being the IO, reached there. He handed the MLCs to the IO and told all the facts to ASI Bhuri Singh.
16. PW13 is ASI Bhuri Singh. He is the IO of the case. His testimony shall be considered at a later stage as and when required.
17. PW14 is Dr. Yogesh Gupta. He deposed that on 03.08.2013 at about 02.50 a.m., he examined injured Ramesh Pal and prepared MLC no. 2022 (Ex.PW14/A).
18. PW15 is Dr. Priyanka. She deposed that MLC No. 2023/13 FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 6 of 22 ASJ01/NE/KKD: 15.11.17 (Ex.PW11/A) was prepared by Dr. Shivani and she identified the signatures and handwriting of Dr. Shivani as she had worked with her (Dr. Shivani). She deposed that as per MLC Ex.PW11/A, HC Sudhir had brought victim at the hospital at about 03.00 a.m on 03.08.2013. After examining the patient, Dr. Shivani gave her observations which were at point X on Ex.PW11/A.
19. Thereafter, on 27.07.2017, statement of accused u/s 313 Cr.P.C was recorded and accused preferred to lead evidence in his defence. He examined himself as DW1, ASI Rakam Singh as DW2 and his wife Anjum Bano as DW3.
20. DW1 is accused himself. He deposed that during the night of 03.08.2013, he was at his house. On that day, at about 01.30 a.m., he received a call from his brother JCL A, who told him that some people were quarreling and beating him. Then he, alongwith his father and uncle, had gone to his factory. There he saw that Ramesh Pal and his family were beating JCL A and S. When they intervened, those persons started beating them also. Then he made PCR Call. PCR van came there and took his brother and victim to the police station. He further deposed that next day, at around 6.30 a.m, he went to the police station and was standing outside the PS. At around 7/8 a.m., police officer took him in a room in PS and he remained there till evening. At around 01.30 p.m., his father came to the police station and informed him that Ramesh Pal alongwith 1015 boys had FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 7 of 22 ASJ01/NE/KKD: 15.11.17 beaten the workers of his factory. In this regard, FIR No. 453/2013 was registered.
21. DW2 is ASI Rakam Singh. He proved the copy of FIR No. 453/2017 as Ex.DW2/1.
22. DW3 is Anjum Bano. She deposed that on 03.08.2013, she and the accused were at their house. Her husband/ accused received ac all from her brother in law, who stated that some people were beating them. Thereafter, her husband alongwith her father in law and brother in law left the house for that place.
23. I have heard learned Addl. PP for the State as well as learned counsel for accused and perused the record very carefully.
24. It has been contended by the Ld. Addl. PP that the prosecution through the testimonies of victim who appeared as PW6, her father who appeared as PW9 and her mother who appeared as PW10, has categorically proved its case that on the fateful night, accused alongwith two CCLs had abducted the victim, taken her to the roof of his factory and tried to rape the victim and after failing in that attempt, accused had thrown her in the street from the terrace of the factory. He has further contended that these testimonies are corroborated by medical report which has been proved by the doctor, who appeared as PW11 and had examined the victim and other doctor who appeared as PW14 and had examined father of victim. They FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 8 of 22 ASJ01/NE/KKD: 15.11.17 have reflected the injuries caused by accused and his associates. He has further contended that it is well settled that in case of sexual assault, sole testimony of victim is sufficient to convict the accused and teh victim has been consistent in her testimony.
25. On the other hand, learned counsel for accused has contended that this is a clear case of false implication. He has contended that in the initial complaint made by victim, no direct role has been assigned to accused in any of the acts i.e. abducting her, trying to rape her and then throwing her from the terrace of the factory. The only role assigned to accused was that after everything had happened, accused arrived and hit a brick on the head of victim's father. He has further contended that it is only when her statement u/s 164 Cr.P.C was recorded that the victim falsely implicated this accused and had stated that when she was abducted and an attempt was made to rape her, this accused was also with two CCLs. He has further contended that there is considerable improvement which has been made by the victim from her initial complaint Ex.PW6/A to her statement u/s 164 Cr.P.C (Ex.PW6/C) because in the complaint, she had stated that two CCLs had enticed her out of her house whereas in her statement u/s 164 Cr.P.C, she had stated that three persons including the accused had forcibly abducted her from her house. He has further contended that there are several contradictions in the testimonies of victim, her father and her mother and thus, none of these witnesses are reliable witnesses. He has FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 9 of 22 ASJ01/NE/KKD: 15.11.17 further contended that it is the family of the victim which had attacked accused and his family members and upon this attack, accused and his family members had called the PCR. The victim and her family members never called the police and after the arrival of police, with connivance of the police, the victim has falsely implicated the accused and his family members.
26. He has contended that in view of the contradictions, the witnesses are not reliable and accused is entitled to an acquittal. In this regard, he has relied upon a judgment of Hon'ble Supreme Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254 wherein it was held as under: Thus, while absence of injuries or absence of raising alarm of delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption u/s 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376 IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused.
27. I have carefully considered the rival submissions.
28. It is correct that in such cases, conviction can solely be based upon the testimony of the victim alone, without there being any corroboration of her testimony. However, this is subject to the condition, FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 10 of 22 ASJ01/NE/KKD: 15.11.17 that the testimony of the victim should be creditworthy, completely believable and of sterling quality. In this regard, in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 , Hon'ble Supreme Court has held as under:
23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which case shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony.
29. Further, in State of Rajasthan v. Babu Meena (2013) 4 SCC 206, it has been held as under:
9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, of found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused. (emphasis supplied.)
30. However, at the same time, Hon'ble Apex Court also had word of caution in Atender Yadav v. State Govt. of NCT of Delhi, 2013 FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 11 of 22 ASJ01/NE/KKD: 15.11.17 (4) JCC 2962, wherein it was held as under: It is true that in a case of rape, the evidence of the prosecutrix must be given predominant consideration and in certain cases even without any corroboration, testimony of the prosecutrix should be given due credence and weightage as in all the rape cases the prosecutrix suffer a great stress, trauma, humiliation and due to this factor alone many cases of rape are not even reported by the victims. However, at the same time, it cannot be denied that false allegation of rape can cause equal damage, humiliation, embarrassment, harassment, disgrace and agony to the accused as well.
31. Further in Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, Hon'ble Apex Court has held as under:
It is true that in a case of rape the evidence or the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.
32. Therefore, the testimony of victim has to be tested for creditworthiness, before it can be acted upon.
33. In the present case, there are three material witnesses who have been examined by the prosecution. The first witness is victim, who appeared as PW6, second witness is father of victim, who appeared as PW9 and the other witness is mother of victim, who appeared as PW10.
34. The victim, appearing as PW6, deposed that two CCLs, who are not facing trial before this court, used to tease her when she would go to FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 12 of 22 ASJ01/NE/KKD: 15.11.17 her school. They also used to hold her hand. She had once complained to her father and her father had scolded them and complained to their father but they did not desist. On 03.08.2013 at about 01/1.30 a.m., when she woke up to attend the call of nature, she saw that the main gate of their house was open. She went to close the door but when she was pulling the door inside, accused with two CCLs came there with a handkerchief. They put that handkerchief on her mouth and dragged her to the terrace of their factory which was situated opposite their house. On reaching the terrace, CCLs remained at the terrace while accused Toshib closed the door of the terrace from outside and went downstairs to the factory. Thereafter, two CCLs started harassing her and meanwhile, accused Tosib also arrived there. They tried to rape her. She raised alarm. They also tore her clothes. In the meantime, her father woke up and finding her not at home, he came to the gali in her search. Accused threw her from the terrace in the rear side gali where she was found by her father. Although she was conscious but had sustained injuries and was unable to get up. She was brought to her house by her father. Her father then called the accused outside and asked them to call their parents, who came at the spot and started fighting with her father. Accused hit a brick on the head of her father. Her father then called the PCR which arrived at the spot. She was taken to the hospital for medical examination from where she was taken to the police station where her statement Ex.PW6/A was recorded. Thereafter, she was brought to the court FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 13 of 22 ASJ01/NE/KKD: 15.11.17 where her statement u/s 164 Cr.P.C (Ex.PW6/C) was recorded.
35. During her cross examination, she deposed that on the date of incident, she woke up at around 12.00 mid night to attend the call of nature but she did not remember whether power supply was on or not. As the main gate of their house was quite big and one had to go out of the house to pull it inside. At that time, her mother was sleeping but her father was watching TV. She tried to raise alarm when the three boys caught her but they had closed her mouth and as such her voice could not go out. She deposed that she had stated in her statement Ex.PW6/B that one worker had closed the door from outside but she did not know if he was a worker but she knew that he was Toshib. She further deposed that the door of the terrace was closed from inside i.e. from stair side. After about 30 or 45 minutes, her father came at the terrace. By the time, her father came at the terrace, she was already lying in the street. She further deposed that she had correctly stated to Ld. MM in her statement Ex.PW6/C that accused had forcibly taken off her clothes. When she fell in the gali, some labours were unloading almonds in the godown. They came only after her mother had reached. First her mother came to her and her father followed. No neighbours had gathered at that time. She denied that she had levelled false allegations against accused or that she was not present at the spot at the time of alleged incident or that police was called by the accused or that she had falsely implicated the accused.
FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 14 of 22 ASJ01/NE/KKD: 15.11.17
36. PW9, her father had deposed that on 03.08.2013, they had slept at about 12/12.15 a.m. At about 12.3012.45 a.m., her daughter/ victim had gone to close the main gate of the house but she did not return. After about 10 minutes, he alongwith his wife reached the main gate of his house. They heard the cries of victim from the roof of a nearby factory. He reached the roof of the factory and found victim, two CCLs and accused Toshib. He found that there were no clothes on the body of victim and accused and two CCLs were also without clothes. He tried to apprehend those persons but they hit a brick on his head and threw the victim from the roof to the gali. One or two minutes later, he regained his senses and found that both the CCLs were present there but accused Tosib was not there. He came down to the gali. Public persons had gathered there and they had apprehended both the CCLs. Accused had run away from there. One public person made a call to the PCR.
37. During his cross examination, he deposed that he was awake at about 12.30 a.m. and was going to sleep and volunteered, that his tenants used to come at late hours so he was awake for closing the door. On that day, he did not go to close the door at night time. He did not wake up the victim to close the door and volunteered, that she had gone for urination and then she went towards the gate. The door of the room was open at that time. Electricity power was on. He did not hear any sound at the main gate when victim woke up. Electricity was there when the victim did not return from FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 15 of 22 ASJ01/NE/KKD: 15.11.17 the main gate. After about 15 minutes, he realized that the victim had not returned to room while she had gone for urination. The gate of the staircase of the factory was open when he went to the roof of the factory and volunteered, that it was not bolted. He had gone to the roof alone and tried to save the victim when accused hit his head with a brick. He did not remember whether he had stated to the police that when he had gone to the roof of the factory, he saw the victim, two CCLs and accused or that there were no clothes on the body of the victim and the accused. He was confronted with his statement Ex.PW9/DA where it was not so recorded. He further deposed that he had stated to the police that he had tried to apprehend accused but they hit his head with a brick and threw the victim from the roof to the gali or that public persons, who had gathered around, had apprehended two CCLs but accused Tosib had run away. He was confronted with his statement Ex.PW9/DA where it was not so recorded. He further deposed that accused had hit a brick on his head at the roof. Victim was thrown in gali no. 5 and thereafter, workers brought her in gali no. 6. He did not go to gali no. 5 where the victim was thrown. Police had not seized the clothes of victim and volunteered, that they had offered her clothes to the police to seize them. Police had recorded the statement of victim for registration of FIR. Police had not recorded the statements of workers who had brought the victim from gali no. 5 to gali no. 6. He denied that on 03.08.2013, a quarrel had taken place between him and the accused FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 16 of 22 ASJ01/NE/KKD: 15.11.17 and volunteered, that police lodged FIR regarding an incident dated 04.08.2013 but he was present at the PS at the time of alleged incident.
38. PW10, mother of victim deposed, that on the day of incident at about 12.30 a.m., main gate of the house was open. Victim had gone to close the gate but she did not return and after sometime, she alongwith her husband reached the main gate but they did not find the victim there. They searched for the victim and after sometime, she found the victim lying in injured condition in gali no. 5. Victim informed her that when she had gone to close the gate, she was taken away by three boys who had tied her mouth and taken her to on the roof of a nearby factory. Those three boys also tried to rape her and when she raised alarm, they warned to throw her from the roof and then threw her from the roof to the gali. Those three boys also came in the gali and they asked them to call their parents but those boys started quarreling with them and landed brick blows on them. Meanwhile, police reached there and family members of those boys were called.
39. During her cross examination, she deposed that public persons were present when she found the victim in the gali. Police did not record the statements of the public persons. She denied that as no such incident had taken place thus the police had not recorded the statement of any public person. She further deposed that victim used to sleep in her room. After about 20 minutes, she came to know that victim was not in the room. When FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 17 of 22 ASJ01/NE/KKD: 15.11.17 the victim had gone towards the main gate, there was electricity in the house. Meanwhile, due to some fault, electricity power was off and her husband was repairing it. Sometime after the victim had gone towards the main gate, electricity power went off.
40. I have carefully considered the testimonies of these three main witnesses of the prosecution. It is apparent from the testimonies, as have been reproduced above, that there are many contradictions in these testimonies.
41. First of all, there are some contradictions in the testimony of victim herself when it is compared to her initial statement (Ex.PW6/A) which became the basis of FIR and her statement u/s 164 Cr.PC (Ex.PW6/C).
42. In her initial complaint, she had stated that two CCLs had enticed her out of her house and after she was found, accused had hit a brick on the head of her father. However, when her statement u/s 164 Cr.P.C was recorded, the reason of her disappearance from her house was changed from enticement to forcible abduction and instead of this being done by two CCLs, accused Tosib was also brought into the picture.
43. Then, there are other contradictions in her testimony which she had given before the court. On the one hand, she appears to be stating that when she went out to answer the call of nature, all her family members FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 18 of 22 ASJ01/NE/KKD: 15.11.17 were sleeping. I say so because she had stated in her examination in chief that after she was taken to the terrace by the accused, her father also woke up and not finding her in the house, he came searching for her in the gali. Meaning thereby, that when she went out, her father was sleeping. Contrary to this, in her cross examination, she stated that when she went out to close the main gate, her mother was sleeping but her father was watching TV. Further, in her examination in chief, she stated that after she was taken on the terrace of the factory, accused went downstairs and closed the door of the factory from outside. However, during her cross examination, she stated that the door of the terrace was closed from inside i.e. from stair side.
44. It is also to be seen that in their testimonies, PW6, PW9 and PW10 have contradicted each other. Mother of victim (PW10) has deposed that when the victim had gone towards the main door, there was electricity in the house and sometimes after she had gone, the electric power went out. This clearly shows that as per PW10, when the victim had gone to close the door, she was awake whereas as per PW6 and PW9, at that time, PW10 was sleeping. Further, PW6 and PW9 have stated that that victim had got up to answer the call of nature and finding the gate open, she went to close the door whereas according to PW10, victim had gone outside for the purpose of closing the gate.
45. Some more material contradictions have emerged in the FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 19 of 22 ASJ01/NE/KKD: 15.11.17 testimonies of PW6 i.e. victim and her father (PW9). According to the victim, the gate of the staircase of factory was bolted from outside or inside but father of victim during his testimony had stated that when he went on terrace of the factory, the gate of factory was not bolted. Further, according to victim, by the time her father reached terrace of the factory, she was already lying in the gali whereas according to the father of the victim, when he reached terrace of the factory, he found victim, two CCLs and accused and they all were naked. According to the victim, it was in the gali that accused had hit a brick on her father's head whereas according to the father of the victim, he was allegedly hit with a brick by accused while he was on the terrace. According to victim, she was not disrobed but accused and two CCLs had torn her clothes. Meaning thereby, she had stated that she was not completely nude whereas her father stated that he found victim to be completely nude.
46. According to victim, accused threw her in the rear gali from the terrace where she was found by her father. However, according to father of victim, who appeared as PW9, victim was thrown in gali no. 5 and she was found by some labours who brought her in gali no. 06 and he had not gone in gali no. 5 where victim was thrown. Contradicting both these witnesses, mother of victim, who appeared as PW10, deposed that they searched for victim and after sometime, she found the victim in gali no. 5.
FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 20 of 22 ASJ01/NE/KKD: 15.11.17
47. It is also to be noticed that as per victim and her father; her father had gone to the terrace of factory. However, mother of victim does not even indicate that he had gone the terrace. Even otherwise, as per victim, when her father reached the terrace of factory, she had already been thrown down and therefore, she could not have known that her father reached there.
48. The cumulative effect of these contradictions is that these witnesses cannot be said to be credible and on the basis of their testimonies, the prosecution cannot bring home the guilt of accused beyond all reasonable doubts. This is coupled with the fact that as admitted by mother of the victim, call to PCR was made by family of the accused and surprisingly the DD no. 5A, pursuant to which the police had reached the informed place, had never been brought on record for the reasons best known to the prosecution.
49. It is also to be noticed that father of victim had deposed that information to the police was given by a public person but the informant was never brought before the court. Such an informant, if he was a public person, could have been an independent credible witness but the prosecution has failed to do so.
50. In view of the above discussions, I find that there are many contradictions in the testimonies of the victim, her father and her mother FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 21 of 22 ASJ01/NE/KKD: 15.11.17 and in view of the contradictions in their testimonies, I find that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is accordingly acquitted of the charges levelled against him. His bail bond stands cancelled. Surety stands discharged. File be consigned to the record room.
Pronounced in open court (Parveen Singh) today on 15.11.2017. Judge Special Court (POCSO Act) (This judgment contains 22 pages ASJ01, North East Distt., and each page bears my signatures) Karkardooma Court, Delhi.
FIR No. 451/13 (Parveen Singh) Judge Spl. Court (POCSO Act) PS Karawal Nagar 22 of 22 ASJ01/NE/KKD: 15.11.17