Delhi District Court
Fir No. 458/14 : State vs Sanjay : Ps South Rohini on 24 March, 2018
FIR No. 458/14 : State V/s Sanjay : PS South Rohini
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No. 131/14)
State Vs. Sanjay
FIR No. : 458/14
U/s : 376 (2) (i) (l) and (n) IPC & 6 POCSO Act
P.S. : South Rohini
State Vs. Sanjay
Late Sh. Babu Lal
R/o Jhuggie No. 446, Indra JJ Camp,
Rohini, Sector03, Delhi.
Date of institution of case : 10.07.2014
Date of arguments : 24.03.2018
Date of pronouncement of judgment : 24.03.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 11.06.2014, the sister K of the victim N along with her mother came to PS and gave her statement to the effect that she is living with her parents and is a student of class 8 th of Page 1 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini Sarvodaya School, Sector3, Rohini and they are three sister and three brothers. Her two brothers who are married are living separately and the three sisters and a brother are living with their parents. The victim N is deaf and dumb and does not go to school. Their mother works as maid in different houses and the father works in the stone market, Kanjhanwala. On 10.06.2014, victim N was sleeping in the jhuggi at about 2:00 pm. The complainant came out of the jhuggi to go for bathroom and her younger sister M was playing outside the jhuggi. She went in the jhuggi to sleep and immediately came out and told the complainant that Sanjay Chacha (accused) is doing something with victim. She entered the jhuggi and saw victim lying on the bed and her pajami was removed. The accused had opened the zip of his pant and he was holding the legs of the victim and was inserting his susu wali jageh in the susu wali jageh of the victim. He immediately locked the zip and the victim also put on her pajami. When she asked as to what accused was doing, he said that he was repairing the fan. The complainant immediately went to the jhuggi of accused and shouted at his mother and sister as to what the accused is doing with the victim. They Page 2 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini immediately came to her jhuggi and started scolding the accused. The accused earlier also had done wrong act with the victim on two occasions but the mother of the victim had pardoned him as the wife of the accused has already expired. This was third time that accused has done this act with the victim and hence this complaint was lodged. On her complaint, the present FIR was registered and the victim was taken to BSA hospital for medical examination. The IO thereafter, visited the spot for inspection but since the incident was of a day before, no exhibits were found on the spot. IO prepared the site plan at the instance of complainant. She also told that accused ran away after the incident. The IO recorded the statement of other witnesses. On 12.06.2014 the statement of the victim u/s 164 Cr. PC was recorded with the help of one teacher from the deaf school, sector4, Rohini, Delhi wherein the victim stated that he removed her salwar when she was sleeping and forcibly made physical relationship. She however could not disclose the name of the person who did so, but said that she can identify that person if produced before her. Thereafter accused was arrested and he was medically examined. The samples were seized and were deposited with Page 3 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini FSL laboratories for report and pending report, this charge sheet was filed.
2. Copies were supplied to the accused and charges for the offence punishable u/s 6 of POSCO Act read with Section 5 (k) & (l) of the POCSO Act and in the alternate offence punishable u/s 376 (2)(l) & (n) IPC were framed against the accused to which he pleaded not guilty and claimed trial. The prosecution to prove the case examined 17 witnesses.
3. PW1 is the duty officer who recorded DD NO.32A Ex. PW1/A and thereafter made endorsement on the rukka Ex. PW1/B and thereafter the FIR Ex. PW1/C was registered. There is no material cross examination.
4. PW2 is the father of the victim who stated that on the 10 day of the month in 2014, when he came back from his work, his wife told him that their neighbour Sanjay has committed wrong act with their daughter N and it was witnessed by their two daughters M and K. He also identified the accused in the court. In his cross examination he admitted that mother of Page 4 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini the accused has enmity with his wife and there has been several instances of quarrel between them. On 10.06.2014, in the evening there was quarrel between his wife and mother of the accused and on 11.06.2014, the mother of the accused had filed a complaint against him and his wife at PS Rohini, Delhi.
5. PW3 is the interpretor who got recorded the statement of the victim u/s 164 Cr. PC Ex. PW3/A. There is no cross examination.
6. PW4 is the victim herself and her testimony is reproduced herein for the sake of brevity.
"Q. Aap batao ki kya hua tha ?
Ans. The witness is busy making a drawing. Child K has been asked to stop the witness from drawing for sometime and to ask her the question again.
Q. Aap batao ki kya hua tha ?
Ans. The witness has made gestures which has been Page 5 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini interpreted by child K as 'kuch nahi hua tha'.
The colours and the drawing sheet has been taken away from the witness as it is seen that she is engrossed in drawing and is not responding to the question explained to her in sign language by her sister. Now the question has again been repeated to the witness.
Q. Aap batao ki kya hua tha ?
Ans. The witness has made gestures which has been explained by child K as gestures for a man and home.
At this stage, the wooden partition has been removed and the accused is shown to the witness.
Q. Batao accused ne apke sath kya kiya tha ?
Ans. The witness has remained quiet and has again made gesture of a man and the house. On the question being repeated to her, she has nodded her head in negative which has been interpreted by child K as 'kuch Page 6 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini nahi kiya tha'.
At this stage, Ms. Rita Kanojia has also been requested to assist the Court.
Q. Batao accused ne apke sath kya kiya tha ?
Ans. The witness has made gesture which has been interpreted by Ms. Rita Kanojia who state that the witness is stating that 'ki mein so rahi thi, accused ne paijami nikal di'.
At this stage, the witness has been shown slags (legging) which Ms. Kanojia is wearing and the witness has responded by nodding her head, the gesture has been interpreted by Ms. Rita Kanojia who state that the witness was wearing a legging which was removed by accused.
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FIR No. 458/14 : State V/s Sanjay : PS South Rohini
Q. Uske baad kya hua tha ?
Ans. The witness has made gesture which has been
interpreted by Ms. Kanojia by stating that the younger sister of the child (other than child K) had seen the incident and that the said child went to call others. "
XXXX By Sh. Sachin Sharma, learned amicus curie for the accused.
The learned counsel has also requested for assistance of child K and Ms. Rita Kanojia. Request allowed.
Learned amicus curie has given a list of questions, however, considering the limited sign language which the victim child has, it would not be possible to put the questions as prepared in the list. Page 8 of 21
FIR No. 458/14 : State V/s Sanjay : PS South Rohini Learned amicus curie has been asked if he has any other question to ask from the witness. Learned amicus curie states that since the victim child has limited sign language and it is difficult to explain facts and / or questions to her, he does not wish to put any question to the witness.
Nil. Opportunity given."
7. PW5 is the CMO, BSA Hospital, who identified the signatures of Dr. Satish Kumar who examined the accused vide MLC Ex. PW5/A, there is no cross examintion.
8. PW6 is the senior gynecologist who identified the signature of Dr. Ritwika Kaushik who examined the victim vide MLC No.6/A. There is no cross examination.
9. PW7 is the doctor, who conducted the potency test of the accused Page 9 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini and gave his report Ex. PW7/A. There is no cross examination.
10. PW8 is the youngest sister of the victim aged about 10 years and has stated that accused used to tease her victim sister on many occasions and on the particular day in the afternoon she went to sleep and saw accused pulling the victim. The chain of the pent of accused was opened and the pajami of the victim was already removed. The accused has tied the mouth of the victim and was inserting his susu wali jageh in susu karne wali jageh of the victim. Thereafter, he pulled out the wire of the fan and the witness left for calling the mother of the accused. The mother and daughter of the accused came. She then called her father on phone. She thereafter, left to inform her mother.
In the cross examination she stated that after hearing the noise the neighbours gathered there and one of them was Geeta and she does not know the name of the other neighbours who gathered there. She denied the suggestion that police briefed her before deposition in court Page 10 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini
11. PW9 is the complainant K who is younger to the victim and stated that on 10.06.2014, she was playing with her sister M outside the jhuggi and the victim was sleeping alone in the jhuggi. She asked M to go to sleep and when M entered in to jhuggi she immediately came out and informed that Sanjay Chacha (accused) is doing something with N. M told her that accused has opened the chain of his pant and the pajami of N has also been removed and accused was doing wrong act with N. She immediately entered the jhuggi and herself saw the act that accused was putting his susu karne wali jageh in the susu wali jageh of the victim. The accused was scared on seeing them and immediately put a towel on his head and told that he came to repair the fan. She sent her sister M to call mother and sister of the accused. But they did not come and then she asked M to call their mother. Thereafter, she went to jhuggi of accused and told the mother and sister of accused as to what accused has done with victim. On that the mother of the accused started abusing accused. In the meantime, their mother also came and slapped the accused and the matter ended there. In Page 11 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini the night when their father came at around 9:00 pm, she informed her father and they came to PS to lodge the complaint. She also identified her signatures on the complaint Ex. PW9/A. She was confronted on many aspects like that she did not tell the police that accused immediately put towel on his head and told that he came to repair the fan, she did not tell the police that the mother and sister of the accused did not come when M went to call them. She did not tell the police that accused told her that she is like a daughter to him and tried to put his hand around her waist. She did not tell the police that thereafter, she went to the mother of accused and informed that what accused has done with N and in the meantime their mother also came and she has holded the accused outside their jhuggi. She did not tell the police that their mother gave three four slaps to the accused and the matter ended there. She admitted in the cross that their mother came back around 4:00 pm, on that day and they lodged complaint with police on same night. She also admitted that on the date of her evidence in the court, the police madam gave her and her sister a paper containing their statements and asked them to say in the court what is written on the paper. Page 12 of 21
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12. PW10, is the doctor who identified the signatures of Dr. Laxmi Vaid, Dr. Seema, Dr. Neera Chug and Dr. P.C. Dixit who prepared disability certificate Ex. PW10/A of the victim child. There is no crossexamination.
13. PW11 is Ct. who took the victim for her medical examination to BSA Hospital and IO seized her samples vide seizure memo Ex. PW11/A. There is no material cross examination.
14. PW12 is Dr. who gave the medical report about the assessment of the age of the victim as more than 16 years but less then 18 years as on 01.07.2014 vide medical board report Ex. PW12/A. There is no material cross examination.
15. PW13 is mother of the victim who stated that she and her husband go to their respective work places and their three daughters remain at home. On the particular day, her elder daughter N was sleeping in the Page 13 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini jhuggi and other two were playing outside the jhuggi. When her daughter M went to the jhuggi to sleep, she immediately came out and informed daughter K that Sanjay Chacha N ke sath kya raha tha. M came to call her at her work place and informed her about the incident and she reached there and slapped the accused. On the date of incident she did not inform the police due to fear of defamation. But on the next day, mother of the accused filed false complaint against her at PS and then she decided to report this matter to police.
In the cross examination, she admitted that there is no document regarding age proof of the victim on record and she did not call the police nor made any complaint to the police on the day of incident.
16. PW14 is MHC (M) with whom samples were deposited by the IO and were subsequently sent to FSL through Ct .Babu Ram. There is no cross examination.
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17. PW15 is the Senior Scientific Officer from FSL who proved on record that DNA report Ex. PW15/A. There is no cross examination.
18. PW16 is ld. MM who recorded the statement of victim u/s 164 Cr. PC with the assistance of interpretor. There is no cross examination.
19. PW17 is the IO who supported the prosecution case and proved on record the statement of the victim u/s 161 Cr.PC Ex. PW17/B. The arrest memo of the accused Ex. PW17/C and the personal search memo Ex. PW 17/D and the seizure memo of the exhibits of the accused Ex. PW17/E. She also proved the disability certificate of the victim Ex. PW17/G. There is nothing in the cross examination to hold that IO did not conduct fair inquiry.
20. In the statement of the accused, recorded u/s 313 Cr Pc he stated that he has been falsely implicated in this case and on 10.06.2014, a quarrel took place between his mother and mother of the victim and his mother Page 15 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini reported the matter to police and thereafter, this false complaint was filed against him and their neighbours also saw the said incident of quarrel.
21. It has been argued for the accused that there is delay in lodging the FIR as the alleged incident occurred at 2:00 pm on 10.06.2014 but the complaint was made on 11.06.2014 at 11:20 pm and there is no explanation regarding the delay. He has argued that admittedly, the mother of the accused lodged initial complaint against mother of the victim and thereafter, the present story was cooked up to falsely involve the accused. It has been argued that the same interpretor who failed to interpret the sign language of the victim in the court successfully, did so before ld. MM while recording the statement u/s 164 Cr. PC, it is argued that the statement u/s 164 Cr. PC can not be believed as same interpretor in the court said that she can not identify the sign language of the victim as the victim has not learnt proper sign language. It is argued that FSL does not support the prosecution case. The MLC of the victim does not show the case of sexual assault and further as per disability certificate, the victim was only deaf and not dumb and as Page 16 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini such she could have raised noise at the time of alleged sexual assault. It is also argued that even the age of the victim has not been proved by the prosecution and further there are inconsistencies in the testimonies of both the eye witnesses and the prosecution has not been able to prove the offence beyond reasonable doubt,.
22. Ld. APP on the other hand has argued that a fact that the victim is deaf and dumb can not be ignored and there are only minor variations in the testimonies of both the eye witnesses which can happen because of their tender age and gap of time and there is no contradiction or improvement as argued by the defence counsel and the prosecution has proved the offence beyond reasonable doubt.
23. I have heard ld. APP for the State and Ld. Defence counsel.
24. As far as the age of the victim is concerned, as per prosecution case, she was 15 years old on the date of alleged incident but as per the report of Page 17 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini the medical board which conducted her ossification test, her age was found to be above 16 years but less then 18 years as on 01.07.2014. the alleged incident is of 10.06.2014 and it can not be safely said that she was below 18 years on the date of incident. If the ossification test found her age above 16 but less then 18 as on 01.07.2014, it has not been proved beyond reasonable doubt that on the date of incident I.e 10.06.2014, she was minor.
25. Coming to main incident, the victim in the court could not narrate the incident even with the assistance of two interpretor, I.e one Ms. Reeta Kanodia who helped in recording her statement u/s 164 CR, PC and second her own sister K. Despite the intervention of two interpretor the victim could only tell that her pajami was removed and could not even say that it was the accused who removed her pajami. It is important to note that same interpretor, who got the statement of the victim u/s 164 Cr.P.C recorded, failed to do so in the court. Further, I find force in the contentions of ld. Defence counsel regarding contradictions in the testimonies of both the eye witnesses. As per PW8 M when she entered the jhuggi she saw the Page 18 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini accused committing wrong act with the victim and on seeing her the accused removed the wire of the fan and pretended as of he is repairing the fan. M immediately came out and informed her sister K about the act of the accused and then K entered the jhuggi she herself saw the accused committing the same act with the victim. Once the accused stopped the alleged sexual assault as claimed by M, who first saw it, then how K herself see the same act remains unexplained. Further the delay in lodging the FIR is fatal to the prosecution story as it remains unexplained coupled with the fact that the complainant lodged her complaint subsequent to the complaint of the mother of the accused against the mother of the victim. The alleged incident occurred at 2:00 pm on 10.06.2014 and was brought to the notice of the mother of the victim at 4:00 pm on the same day and to the notice of the father at 9:00 pm on the same day. Yet the FIR was lodged at 11:20 pm on 11.06.2014 I.e after more then 24 hours of the alleged incident. Further, the FSL result not only give finding that the semen of the accused was not found in the samples of the victim but also find that there was semen in the sample of the victim but same did not match of that accused which shows Page 19 of 21 FIR No. 458/14 : State V/s Sanjay : PS South Rohini that some other person might have established physical relation with the victim and not the accused. Further the MLC of th victim does not show that any forcible sexual assault was committed with her. The doctor did not find any external or internal injury on her body which shows that sexual act if any was not forcible. Further, the disability certificate of the victim Ex. PW10/A shows that she was 100% deaf but not dumb which means that she can at least make some noise if required. The prosecution has failed to prove that the victim was 100% dumb and was incapable of making any type of sound. Further when both eyewitnesses were playing outside jhuggie, where victim was sleeping, then how accused entered the jhuggie, is also not explained. The prosecution has not been able to bring home the guilt 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. Page 20 of 21
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26. File be consigned to Record Room.
(Announced in the open (Amit Kumar)
Court on 24.03.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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