Delhi District Court
State vs . Ankit Dubey on 26 May, 2014
State Vs. Ankit Dubey
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 95 of 2013
ID No. : 02401R0227562013
FIR No. : 42/2013
Police Station : Kamla Market
Under Section : 341/354-D/506 IPC
& 12 POCSO Act
State
Versus
ANKIT DUBEY
S/o Chander Narain Dubey
R/o H. No. 314, New Ashok Nagar,
Delhi
Old Address:
A-258, Ground Floor,
Minto Road, Delhi
.........Accused
Date of Institution : 07.05.2013
Date of judgment reserved on : 12.05.2014
Date of judgment : 26.05.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Chander Shekhar Yadav, Advocate, counsel for the
accused
SC No.95/13 Page 1 of 18
State Vs. Ankit Dubey
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on March 18, 2013 at about 7.30PM an intimation was received on wireless set that quarrel was going on at premises no. 227 Minto Road, Delhi. Said information was recorded vide DD No. 27A (Ex. PW2/A) and same was assigned to ASI Puran Chand, who along with constable Bharat Vir left for the place of occurrence. It was alleged on reaching there victim aged about 16 years met along with her parents and she got recorded her statement Ex. PW9/A (since complainant is the victim of sexual assault, her identity is withheld and hereinafter she is referred to as victim or complainant.) It was alleged that complainant studies in 10 th standard and accused Ankit Dubey who is residing opposite to her house used to follow her frequently as and when she goes to her school. It was alleged that accused insisted her to talk with her despite the fact that complainant had refused to talk to him several times. It was alleged that on March 18, 2013 when victim was coming out at about 5:30 PM from her school after appearing in examination, accused was found standing outside her school along with her friends and he stopped the victim and asked her to marry with him otherwise he would get her eloped. It was alleged that accused asked her to fetch Aadhar-card from her house for the purpose of marriage and threatened that if she did not follow his directions, he would kill her. It was alleged that accused had outraged her modesty by asking her for marriage in front of several other girls at public place. It was alleged that somehow she reached her house and narrated the incident to her mother. In the mean time her father also reached the home. It was alleged that at about 7 PM accused Ankit also reached her house and again repeated the SC No.95/13 Page 2 of 18 State Vs. Ankit Dubey same thing and asked her to elope with him otherwise he would kill her family members. In the mean time, her father came out from the house, thereafter, accused threatened her father and ran away. Consequently, her father made a call at 100 number. Accordingly, police reached there. On her statement, an FIR for the offence punishable under Section 341/ 354(D)/506 IPC and under Section 12 of Protection of Children From Sexual Offences Act (POCSO Act in short ) was got registered.
(i) During investigation, victim was got medically examined.
Accused was arrested. Statement of victim under Section 164 Cr.P.C was got recorded. Her documents relating to age were collected.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 341/354-D/506 IPC read with Section 12 of POCSO Act.
3. After complying with the provisions of Section 207 Cr.P.C, a charge for the offence punishable under Sections of 341/354-D/506 IPC read with Section 12 of the POCSO Act was framed against the accused vide order dated August 22, 2013 to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following eleven witnesses:-
PW1 Sh. Pawan Kumar, Sub-Registrar, proved the
date of birth of victim
PW2 ASI Nir Pal, duty officer, proved the FIR and
DD No. 27A.
SC No.95/13 Page 3 of 18
State Vs. Ankit Dubey
PW3 Dr. Raj Kumar, formal witness proved the MLC
of victim
PW4 Dr. Rajender, formal witness proved the MLC
of accused
PW5 Dr. Namita Jain, formal witness, proved the
MLC of victim
PW6 ASI Puran Chand, formal witness
PW7 Const. Bharat Vir, joined investigation with IO
PW8 Father of victim (in order to conceal the
identity of victim, his identity is also withheld and hereinafter, he is referred to as father of victim) PW9 Victim/complainant PW10 ASI Pushp Lata, second investigating officer, formal witness PW11 SI Asha, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Code of Criminal Procedure wherein he denied each and every incriminating evidence led by prosecution and submitted that he has been falsely implicated by family members of the victim as they came to know about his love affair with the victim. It was submitted that victim was in love affair with him since long. However, he refused to lead evidence in his defence.
6. Learned counsel appearing for the accused sagaciously contended that prosecution case is based on the sole testimony of victim but contended that no reliance can be placed on her deposition. It was contended that even in her statement under Section 164 Cr.P.C., victim did SC No.95/13 Page 4 of 18 State Vs. Ankit Dubey not support the prosecution version by deposing that she had lodged a false complaint against the accused under pressure of her relatives and known persons as she did not want to lodge any FIR against the accused. It was further contended that when victim appeared in the witness box initially she did not support the prosecution case but when words were put in her mouth in the form of leading questions, she admitted the prosecution version and made a deposition against the accused. However during cross examination, she admitted that she was in love affair with the accused and also admitted that she had written love letters and have photographs with the accused. She also admitted that her elder sister also used to talk with the accused on her behalf and she was planning to elope with the accused even after lodging the FIR. At last, she admitted that accused had proposed her for marriage because they loved with each other. It was contended that from her deposition it can safely be culled out that victim had lodged an FIR under pressure of her family members. It was further contended that in this matter police has not investigated the matter diligently and no efforts were made to bring truth on record. It was contended that despite the fact that victim in her statement recorded under Section 164 Cr.P.C deposed that she had lodged the FIR under pressure of her known and family members, investigating officer did not deem it appropriate to investigate the matter intensively to bring truth on record. It was contended that the investigation is biased and due to that reason no efforts were made to bring the version of accused on record. It was further contended that accused has been falsely implicated by the police under the pressure of family members of victim as her father is working in Ministry of Defence.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that mere fact that victim and accused were in love affair is not sufficient to discard the prosecution case. It was contended SC No.95/13 Page 5 of 18 State Vs. Ankit Dubey that victim in her deposition categorically stated that accused had followed her and misbehaved with her in the presence of other girls in the public place and he threatened the victim. It was contended that accused had sexually harassed the victim several times even prior to the date of incident. It was contended that mere fact that victim admitted that she was in love with accused is not sufficient to disbelieve the prosecution version.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. Though prosecution has examined as many as 11 witnesses, yet prosecution case is based on the sole testimony of PW9, victim/complainant. The testimony of rest of witnesses are not relevant to prove the culpability of accused.
10. First question arises what was the age of victim at the time of alleged incident?
11. PW8, father of the victim in his cross-examination deposed that he has two sons and three daughters and his youngest son is between 15-16 years old and eldest son is about 16 years old. He further deposed that his daughters are elder to his sons and eldest daughter is aged about 25 years, second daughter is aged about 23 years old and third daughter i.e. PW9 (victim) is 18+ years old. Thus, as per the testimony of PW8 victim was above 18 years old.
12. PW1 Sh. Pawan Kumar, Sub-Registrar in his deposition testified that a female child was born to PW8 and his wife on June 18, 1995 SC No.95/13 Page 6 of 18 State Vs. Ankit Dubey at Safdarjung hospital and on receipt of information from the hospital, date of birth of said female child was registered at serial number 5484. Thus, as per Sub-Registrar (Birth & Death), PW9 was born on June 18, 1995. Since the alleged incident had taken place on March 18, 2013, thus victim was 17 years 9 months old at the time of incident. In other words, victim was at the verge of attaining the majority.
13. Prosecution has set up a case against the accused that accused used to follow the victim while she used to go to her school and insisted her to talk with him despite the fact that she had refused several times to talk with him. Prosecution has also set up a case that on March 18, 2013 at about 5.30 PM when victim was coming from school after appearing in the examination, accused was standing outside her school along with his friends and he stopped her and asked her to marry with him otherwise he would got her eloped and also asked her to fetch Aadhar-card otherwise he would kill her family members.
14. In order to prove the said allegations, prosecution has examined the victim (PW9) but when she entered the witness box, she did not support the prosecution case during her cross-examination by deposing that she knew the accused Ankit for the last 6-7 years and further deposed that when she was in 8 th standard, she developed friendship with accused Ankit and they remained friends till she completed 9 th standard. Though initially she deposed that she did not go anywhere with the accused and took the plea that she had a photograph with the accused on the eve of Chat Puja when she was in 8 th standard but later on she admitted that she visited photo-studio along with accused Ankit to have a photograph with him and admitted that the said photograph was taken when she was in 9 th standard. Initially, she deposed that she had written some letter to the SC No.95/13 Page 7 of 18 State Vs. Ankit Dubey accused being a friend but later on when attention of witness was drawn towards the contents of letters, she admitted that she and Ankit used to love each other and further testified that they were lovers and not mere friends as earlier stated. The love letters are Ex. PW9/D2. Thus, it becomes clear that victim and accused were in love prior to the date of incident and they used to exchange love letters and they had also joint photograph.
15. During her cross-examination, she further admitted that her elder sister who is aged about 25 years old was maintaining an account on Face-book. Initially, she expressed her ignorance whether her sister was maintaining any account on Face-book in the fake name of Poonam Singh or that she used to talk with the accused on the said account. But later on, she admitted that her sister had an account on Face-book in the name of Poonam Singh and she also admitted that conversation had taken place between accused and her sister on her behalf and said conversations is Ex. PW9/D3. At this point, mother of the victim tried to interfere in the deposition, accordingly she was directed to go outside the Court room. When her mother was sent outside the Court room, victim admitted that she had love affairs with the accused and they wanted to marry with each other. She also admitted that she had sent a letter Ex. PW9/D2 to the accused through Manjeet, friend of accused. She also admitted that she and accused had decided to marry after eloping from their houses and further deposed that their love affair continued even after lodging the FIR. She further admitted that accused had proposed her for marriage because they loved to each other. She also admitted that her family was ready to marry her with the accused and they were also aware about their love affairs. However, at last she deposed that she was not interested in marriage because she was in 10 th standard and even family members of the accused SC No.95/13 Page 8 of 18 State Vs. Ankit Dubey were not ready for their marriage as she did not belong to their caste and now she did not want to marry with him. Thus, from her testimony, it becomes lucid that when her mother was sent outside the Court room, she openly admitted about her love affairs, love letters and the fact that accused had proposed her for marriage as they were in love. This shows that the victim was under the pressure of her family members when she entered the witness box.
16. It is further explicit from the statement of victim recorded under Section 164 Cr.P.C (PW9/B) that she had friendship with the accused for the last 4 years and they met with each other after her examination outside the school. She also admitted in Ex. PW9/B that someone informed at her house that she was meeting with a boy and when at 6 PM, she reached the house, her mother scolded her. In the mean time accused also reached her house and in front of her parents, he stated that he wanted to marry with her. Thereafter under the pressure of neighbours, she made a complaint against the accused despite the fact that she did not want to lodge any complaint against him. This further proves that the FIR was got lodged against the accused by pressurising the victim.
17. From the conversations that had taken place between accused and her sister which is Ex. PW9/D3, it is also established that that accused did not want to talk with her sister and asked her sister not to send any message to him. Her sister informed the accused that whatever victim had done, she had done under the pressure of her family and further informed the accused that one Pooja had informed the parents of victim that accused Ankit was planning to elope with the victim on the last day of her examination, consequently, she was pressurised. She further told him that whatever statement she had given, it would be in his favour. She SC No.95/13 Page 9 of 18 State Vs. Ankit Dubey further told the accused that victim had not implicated him but her family members had also discontinued her study. She further informed the accused that whenever victim would marry, she would marry only with him otherwise she would die. She further told that earlier she was alone. Accused told her sister, " pata hai meri halat kiya thi jail mai, tab use thoda sa bhi nahi laga hoga ki mai kaisa hu, meri mom mere samne ro rahi thi, mera bhai to mujhse ladta raheta hai vo bhi ro raha tha, tab kaha the tum log mujhe fasakar." Thereafter her sister again convinced the accused that victim had not implicated him but since Pooja had informed her family members, she had no other option.
18. From the said conversions, it becomes limpid that victim was in love with the accused and she intended to marry with the accused. Accused and victim were willing to marry after eloping from their house. However, since one Pooja had informed the family members of victim, this case was got registered. Even from her letters Ex. PW9/D2, it becomes clear that they were in love.
20. Now coming to the next question as to whether the testimony of PW9 attracts any penal provision or not?
21. Protection of Children from Sexual Offences Act was enacted with effect from November 14, 2012 with the object to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment a Special Court for control of such offences and for matters connected therewith or incidental thereto. Sexual harassment is defined under Section 11 of the POCSO Act. The relevant portion of Section 11 of POCSO Act reads as under :
SC No.95/13 Page 10 of 18State Vs. Ankit Dubey
11. Sexual Harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent -
(i)utters any word or makes any sound, or makes any gestures or exhibits any object or part of body with the intention that such word or sound shall be heard or such gesture or object or part of body shall be seen by the child;
(ii) ..............
(iii) ..............
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic, digital or any other means;
(v) ...............
(vi) ...............
(emphasis supplied)
22. Bare perusal of Section 11 of POCSO Act indicates that there must be something on the part of wrongdoer which may annoy the victim in one way or another way. But when a friend or lover of a child do some activities or pass some comments, which do not hurt or annoy the child, are not sufficient to attract the provisions of sexual harassment.
23. It is pertinent to state that provisions of POCSO Act do not prevent a child to have friendship or even love affair with opposite sex. It is pertinent to state that love always does not mean sexual relations. One may have even healthy love affair with his/her partner. To have a friendship is one of the basic human rights, and no child can be deprived from his/her said right. If any person exceeds the limits of friendship with a child, sufficient provisions have been enacted to deal with such person. Mere fact that the conversation or activities between friends/lovers is not liked by other persons including their parents is not sufficient to invoke the provisions of POCSO Act. For instance, on the eve of one's birthday, two SC No.95/13 Page 11 of 18 State Vs. Ankit Dubey growing up opposite sex child hug and exchange kisses to each other.
Their act may not be liked by other members of the society including their family members but their annoyance is not material to invoke the provisions of POCSO Act. The crucial point is, there should be sexual intent on the part of wrongdoer and the same can be pointed out by the victim only. For instance, sometimes kissing may not have sexual intent whereas sometimes simple hands shake may have the element of sexual intent. It depends numerous other factors. Similarly, if during friendship or love affair, one partner proposed another for marriage may or may not be sufficient to attract penal provisions.
24. Now coming back to the facts of the case in hand. In the instant case, it is established that victim was in love with the accused; victim used to send love letters to the accused through the friend of accused; victim used to have photograph with the accused; victim intended to elope with the accused; victim intended to marry with the accused. In these circumstances, proposing of marriage by one partner to another is not sufficient in any manner to attract the provisions of POCSO Act. Further, it is also clear that victim and accused were in love since long, despite that victim did not make any allegations either of sexual assault or penetrative sexual assault, which shows that accused had never exceeded the limit set by both the parties. This further indicates that their friendship/lover affair was healthy but the same was not liked by the family of victim. Since, victim was at the verge of attaining majority, probably they had decided to marry after attaining the age of majority. But since, their love affair was opened by one Pooja before the family members of victim, their affair ended with the registration of FIR.
25. Since, in the instant case victim has categorically admitted SC No.95/13 Page 12 of 18 State Vs. Ankit Dubey that she was in love with the accused since long and accused had proposed her for marriage because they loved to each other. This shows that the said act of accused did not annoy the victim in any manner; rather she liked the same as she was ready to elope with the accused. Even after lodging the FIR, she was ready to marry with the accused and she intended to elope with him. But since her parents came to know about her love affair, FIR was lodged against the accused.
26. Similarly, to attract the provisions of Section 354D IPC, there must be cogent evidence on record that victim had shown her disinterest in the person who follows her. As already discussed that since accused and victim were friends and later on their friendship develops in love affair, it cannot be said that the victim had shown her disinterest when accused used to meet with him during friendship or love affair. Mere fact that their love affair was known to her family members is not sufficient to attract the provisions of Section 354D IPC. From the testimony of PW9, it also becomes clear that there is no iota of evidence for the offence punishable under Section 341/506 IPC.
27. From the testimony of PW9 and circumstances available on record, it is proved beyond doubt that she made a complaint against the accused under the pressure of her known.
28. The testimony of PW8, father of victim is not relevant in any manner to prove the culpability of accused as he in his cross-examination admitted that he came to know about the alleged harassment by the accused first time on March 18, 2013 when her daughter told him about the same and further admitted that accused did not ask his daughter to elope with him in his presence. Though in his examination-in-chief, he deposed SC No.95/13 Page 13 of 18 State Vs. Ankit Dubey that accused run away from the spot after extending threat to him but he failed to depose what threat he had given. Moreover, in the given facts and circumstances, the testimony of PW8 is not reliable.
29. As already discussed that in her statement under Section 164 Cr. P.C., victim categorically stated that she had made a complaint against the accused under pressure and she was not interested to take any action against the accused. But surprisingly, no investigation was made in this regard. In the charge-sheet, no reference was given about the said statement. It is not clear from the charge-sheet whether investigating officer relied upon the same or not. Needless to say that the purpose of investigation is to find out truth in the allegations and same is clear from the sub-rule 3 of Rule 25.2 of Punjab Police Rules, relevant portion reads as under:-
25.2. Power of investigating officer -
(3). It is duty of an investigating officer to find out truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.
(emphasis supplied)
30. Since, it was in the knowledge of investigating officer that victim had made a complaint under pressure and she did not want to take any action against the accused. It was the paramount duty of the investigating officer to go in depth of the matter to find out truth but no such effort was made; rather investigating officer preferred to rely upon the sole uncorroborated testimony of victim.
31. PW11 SI Asha in her cross-examination admitted that she came to know about the documents Ex.PW9/D1 and Ex.PW9/D2 during SC No.95/13 Page 14 of 18 State Vs. Ankit Dubey bail application of the accused but she did not record this fact in the case diary that victim and accused were in love affair. In the next breath, she stated that she did not bring the same on record because victim denied the said love letters. But she did not mention this fact in the case diary; nor she recorded any statement of victim in this regard. Assuming for the sake of arguments that victim had refused to accept the said love letters, but the said love letters were sufficient to investigate the matter thoroughly, thus, if victim denied the said love letters, investigating officer should have sent the letters to FSL for expert's opinion, but PW11 failed to do so and this fact is admitted by PW11 in her cross-examination when she deposed that she had not investigated the matter thoroughly.
32. Needles to say that the role of police is not satisfy the ego of any party; their statutory duty is to investigate the matter in accordance with law and to find out the truth in the allegations but in the instant case, there are sufficient material to say that investigating officer and SHO failed to perform their duty and they preferred to rely upon the complaint that was made by the victim under pressure. Even, investigating officer had also violated the mandatory provisions of law while investigating the matter.
33. Since, accused was arrested for the offence where sentence is provided for less than 7 years, investigating officer was bound to follow the mandatory provisions of Section 41 (1) (b) of Cr. P.C. which reads as under:-
41. When police may arrest without warrant.--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--
(a) who commits, in the presence of a police officer, a cognizable offence;SC No.95/13 Page 15 of 18
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary--
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.] (emphasis supplied)
34. From the above, it becomes clear that investigating officer is bound to record reasons why arrest of accused is necessary at the time of arresting the accused, but in the instant case no such reason was recorded. Moreover, from the facts and circumstances of the case, it is clear that there was no circumstance which may satisfy the above said mandatory requirements. Thus, there are two possibilities, firstly that SC No.95/13 Page 16 of 18 State Vs. Ankit Dubey accused has been arrested in violation of mandatory provisions of Section 41 (1) (b) of Cr. P.C. under the pressure of family members of the victim or secondly that investigating officer/SHO deliberately violated the mandatory provisions of law. Both the eventualities are not good for the administration of criminal justice.
35. Admittedly, accused is 21 years old having no criminal antecedents. If a person is arrested in such a casual manner, it will not be good for the society at large. Needless to say that whenever a person is arrested for an offence of moral turpitude, it has serious consequences as it becomes difficult for such a person to get a government job in future. Thus, investigating agency should be more cautious at the time of investigating such matter. Further, arrest even in a minor offence cause intolerable trauma not only to the accused but also to his family members and this fact clears from the conversations that had taken place between the accused and elder sister of the victim. In the instant case, accused has to remain in jail for five days despite the fact that he has no fault. He has become the victim of poor investigation. Had the matter been investigated fairly, probably police official would have come to know that the victim was in love with the accused and the victim had been forced to lodge the present FIR and in that eventuality police probably would not have filed the charge- sheet against the accused. Further to find out truth in the matter, it was the duty of investigating officer to provide an opportunity to the accused to rebut the allegations levelled in the complaint, but in this matter no such opportunity was given; it appears that investigating officer was in haste to arrest the accused without any proper investigation. Such type of approach is not good for the administration of criminal justice. It is pertinent to state that not bringing true facts on record also amounts fabricating a false circumstance which also amounts an offence punishable under Section 193 SC No.95/13 Page 17 of 18 State Vs. Ankit Dubey IPC.
36. In view of the aforesaid discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused, hence, I hereby acquit the accused Ankit Dubey from all the charges.
37. In order to take remedial steps to ensure that mandatory provisions be complied in its letters and spirit at the time of arrest and to take appropriate action for shoddy investigation, copy of judgment be sent to the Commissioner of Police with direction to submit the action taken report within six weeks from the date of judgment.
38. File be consigned to record room.
Announced in the open Court on this 26th day of May, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central district, Tis Hazari, Delhi/sv SC No.95/13 Page 18 of 18