Delhi District Court
State vs Mr.Sagar Solanki. -:: Page 1 Of 11 ::- on 2 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 : 469/2017.
Old Sessions Case Number : 168/2017.
State
versus
Mr.Sagar Solanki
Son of Mr.Pratap Singh,
Resident of Jhuggi number C-159,
Reshma Camp, Kirti Nagar, Delhi.
First Information Report Number : 140/2017.
Police Station Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 05.08.2017.
Arguments concluded on : 02.05.2018.
Date of judgment : 02.05.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused has been produced from judicial custody.
Mr.Arun Gaur, counsel for the accused.
Mother of the victim boy and Mr. Nanu are present.
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JUDGMENT
1. Mr.Sagar Solanki, the accused, has been charge sheeted by Police Station Kirti Nagar for the offences under sections New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 1 of 11 ::-
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377/367/323/341/506 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Sagar Solanki has been prosecuted on the allegations that on 07.05.2017, accused Mr.Sagar Solanki had kidnapped the victim boy (who is aged about 8 years) from his lawful guardianship; he kidnapped / abducted the victim boy in order that he may subjected to unnatural lust of any person; he committed penetrative sexual assault upon the victim boy; he committed carnal intercourse against the order of nature upon the victim boy; he voluntarily caused simple hurt (blunt) upon the victim boy; he pressed the throat of the victim boy with such intention or knowledge and under such circumstances that if by his above said act he cause the death of the victim boy, he would be guilty of murder; and he criminally intimidated the victim boy not to disclose about the offence to any one, otherwise, he would kill him.
3. The name, age and particulars of the victim boy are mentioned in the file and are withheld to protect his identity and he is hereinafter addressed as Master X, a fictitious identity given to him. Fictitious identity as Ms.Y is given to the mother of the victim boy in order to protect the identity of the victim.
New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 2 of 11 ::-
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4. After completion of the investigation, the charge sheet was filed before the Court on 05.08.2017.
5. After hearing arguments, charge for offences under section 363 of the IPC, under section 377 of the IPC, under section 6 of the POCSO Act and under section 377 of the IPC, under sections 323, 307 and 506 of the IPC was framed against accused Mr.Sagar Solanki vide order dated 05.03.2018 by this Court to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as (03) witnesses i.e. the victim boy Master.X, as PW1; Ms.Y, mother of the prosecutrix, as PW2; and Mr. Nanu, as PW3.
7. The evidence of the victim boy Master X as PW1 has been recorded in camera. His mother Ms.Y as PW2 has also been examined in camera.
8. The victim boy Master X as PW1 had seen accused Mr.Sagar Solanki through the screen and he has failed to identify him. He has deposed that "Maine accused Sagar Solanki ko pehle kabhi nahi dekha. Ye mujhe nahi lekar gaya tha." He has further deposed that, "Me un dono ladko ko jo mujhe uthakar le gaye the, nahi pehchan sakta kyounki unhone meri ankhe aur mera muh bund kar diya tha. Mere kamar me chot lagi thi. Mujhe jhadi me jab New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 3 of 11 ::-
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fenka tha to mere potty karne wali jagah danda lag gaya tha jisse se mujhe chot ayi thi aur mere khoon bhi nikla tha. Mene uss vakt nikar pehni hui thi, jab mujhe jhadi me fenka tha. Unn ladko nein meri nikkar nahi uttari thi."
9. As the victim boy Master X (PW1) was hostile and had retracted from his earlier statement, the Additional Public Prosecutor has cross-examined him. He has been cross examined but nothing material for the prosecution has come forth. He has deposed during his cross examination that "Main kisi Nanu ko nahin janta hoo. Meri mummy mujhe sabzi mandi ke pas mili. Tab main akela tha. Main bhul gya tha nanu ko main janta hoo wo mere mummy ke sath aaya tha. Jadhiyo me or sabji mandi me paanch minute ka rasta hai battery riksaw se. main cheep cheep key jhadiyo se sabji mandi tak paidal aaya. Mere sath koi nahin tha. Mere sath Sagar nahin tha. Yeh galat hai ki Sagar mere sath tha or maine mummy ko bataya that ki Sagar ne mere potee karne wali jagah me apna susu dala tha. Yeah galat hai ki main Sagar Solanki ko janta hoo or main jan bujh ker usse nahin pehchan raha hoo. Maine apni mummy ko bataya that ki ladke mujhe le gye the or mara tha or phir jhadiyo me fek diya tha. Yeah galat hai ki Sagar Solanki mujhe leker gaya tha, mera gala dabaya tha or mere sath galt kam kiya tha. Yeah kahna galt hai ki main Police ko yahi baat batayi thi. Yeah bee galat hai ki maine Judge Sahab ko sach baat batayi thi or apni marji se batayi thi. Yeah galat hai ki police ne mujhe kuch bee judge Sahab ko batane ke liye nahin kaha tha." New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 4 of 11 ::-
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10.In his cross examination on behalf of the accused, the victim boy Master X (PW1) has deposed that "Yeah kahna thik hai ki Sagar Solanki ne mere sath kuch be galt nahin Kiya. Yeah thik hai ki main Accused Sagar Solanki ko nahin janta or usse pehli bar maine usse court me hi dekha hai."
11. The mother of the victim boy Ms.Y (PW2) has also not deposed anything incriminating against the accused. She was declared hostile by the prosecution but nothing material for the prosecution came forth in her lengthy cross examination. The counsel for the accused has not cross examined her despite being opportunity given.
12.Mr.Nanu (PW3) has also not deposed anything incriminating against the accused. He was declared hostile by the prosecution but nothing material for the prosecution came forth in his lengthy cross examination. The counsel for the accused has not cross examined him despite being opportunity given.
13.The prosecution witnesses i.e. the victim boy Master X as PW1 and Ms. Y, mother of the victim (PW2) have not deposed an iota of evidence of accused Mr.Sagar Solanki that he committed the offences of kidnapping, of abduction, of penetrative sexual assault, of carnal intercourse; of simple hurt upon the victim boy; pressed the throat of victim boy to kill him and threatened him not to New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 5 of 11 ::-
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disclose the incident to anyone.
14.In the circumstances, as the victim boy Master.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 Ms.Y, his mother (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 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 victim boy Master.X (PW1) and mother Ms.Y (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case. Even Mr.Nanu (PW3) has not supported the prosecution case.
15. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Sagar Solanki is dispensed with as there is nothing incriminating against him as the victim boy Master X (PW1) is hostile and nothing material has come forth for the prosecution in his cross examination by the Additional Public Prosecutor for the State and his mother (PW2) has also not deposed anything incriminating against the accused.
New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 6 of 11 ::-
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16.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.
17.In the light of the aforesaid nature of deposition of the victim boy Master X (PW1) and his mother (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 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 victim boy. 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."
18.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 7 of 11 ::-
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19.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.
20.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two 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).
21.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.Sagar Solanki. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 8 of 11 ::-
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22.Consequently, no inference can be drawn that the accused Mr.Sagar Solanki is guilty of the charged offences under section 363 of the IPC, under section 377 of the IPC, under section 6 of the POCSO Act and under section 377 of the IPC, under sections 323, 307 and 506 of the IPC.
23.There is no material on record to show that on 07.05.2017, accused Mr.Sagar Solanki kidnapped the victim boy (who is aged about 8 years) from his lawful guardianship; he kidnapped / abducted the victim boy in order that he may subjected to unnatural lust of any person; he committed penetrative sexual assault upon the victim boy; he committed carnal intercourse against the order of nature upon the victim boy; he voluntarily caused simple hurt (blunt) upon the victim boy; he pressed the throat of the victim boy with such intention or knowledge and under such circumstances that if by his above said act he cause the death of the victim boy he would be guilty of murder; and he criminally intimidated the victim boy not to disclose about the offence to any one, otherwise, he would kill him.
24.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.Sagar Solanki of kidnapping, of abduction, of New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 9 of 11 ::-
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penetrative sexual assault, of carnal intercourse; of simple hurt upon the victim boy; of pressing the throat of victim boy to kill him, and of threatening him not to disclose the incident to anyone. The witnesses have not deposed an iota of evidence that accused Mr.Sagar Solanki has committed any of the charged offences.
25.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.Sagar Solanki for the offences under section 363 of the IPC, under section 377 of the IPC, under section 6 of the POCSO Act and under section 377 of the IPC, under sections 323, 307 and 506 of the IPC.
26.Consequently, accused Mr.Sagar Solanki is hereby acquitted of the charges for the offences of kidnapping, of abduction, of penetrative sexual assault, of carnal intercourse; of simple hurt upon the victim boy; of pressing the throat of victim boy in an attempt to kill him; and of threatening him not to disclose the incident to anyone punishable under section 363 of the IPC, under section 377 of the IPC, under section 6 of the POCSO Act and under section 377 of the IPC, under sections 323, 307 and 506 of the IPC.
New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 10 of 11 ::-
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COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
27.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
28.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
29.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
30.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
NIVEDITA ANIL Digitally signed by NIVEDITA ANIL SHARMA SHARMA Date: 2018.05.08 10:42:08 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 02nd day of May, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 469/2017.
Old Sessions Case Number : 168/2017.
First Information Report Number : 140/2017. Police Station : Kirti Nagar.
Under sections 377/367/323/341/506 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Sagar Solanki. -:: Page 11 of 11 ::-