Delhi District Court
"17. This Version Is Further Fortified ... vs . on 28 March, 2017
IN THE COURT OF SHRI PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE01/WEST,
SPECIAL COURT UNDER POCSO ACT,
TIS HAZARI COURTS, DELHI
SC No.: 264/16 (Old No.)
58189/2016 (New No.)
FIR No.: 326/16
PS : Moti Nagar
U/S : 363/366/376 of IPC & Sec.6 of POCO Act
The State
(Govt. of NCT of Delhi)
Vs.
Shah Mohammad
S/o Mustfa
R/o WZ59, Basai Darapur, Delhi. ...... Accused
Date of Institution : 07.11.2016
Date of arguments : 28.03.2017
Date of judgment : 28.03.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR has been registered u/s 363 of IPC on the complaint of 'RK' (presumed name of the complainant), wherein, she has alleged that she is living in the rented accommodation, as mentioned in her complaint Ex.PW2/A, and her niece namely 'A' (presumed name of the prosecutrix) aged about 1718 years, lives with her and she is missing from her house since 23.05.2016 at 04:00 pm and her husband is also missing from her house and she has tried to search the prosecutrix, but she could not find her and her husband has also taken away some articles & her money and she suspected that her niece has been induced & kidnapped away by her husband i.e. the accused. On such complaint of the complainant, FIR no.
FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 1 of 13326/16 was registered u/s 363 of IPC dated 24.05.2016 and on the recovery of the prosecutrix, her statement u/s 164 of Cr.PC vide Ex.PW1/A was recorded, wherein, she has stated that she had gone at Sultan Pur along with her FOOFA i.e. the accused and the her parents are residing in Bihar and she lives with her grand mother in Delhi and her BUA 'R' (presumed name) & her FOOFA used to quarrel in view of prosecutrix and her BUA suspected that something was wrong between prosecutrix & her husband i.e. accused and further stated that she alongwith her FOOFA were living in a room at Sultan Pur. They slept together voluntarily and no force has been used against her and this prosecutrix & accused were returning to solemnize court marriage and her BUA & other persons came. The accused was arrested on dated 11.10.2016 and since then, he is behind bars.
2 On completion of the investigation, the chargesheet was filed U/s 363/366/376 IPC and Sec. 6 of POCSO Act. Copy of charge sheet and CD were supplied to the accused. On finding of the primafacie case, the charges U/s 363/366/376 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial.
3 In order to prove its case, prosecution has examined three witnesses today.
4 The prosecutrix Ms. 'A' (presumed name of the prosecutrix) has been as PW1, who has deposed that her date of birth is 10.04.1998 and she was never admitted in any school. She has further deposed that in the month of May, 2016, she was living in the house of her grandmother (DAADI) and further deposed that her BUA 'RK' (presumed name) was not residing in the same house. The prosecutrix has correctly identified to this accused and told that he is her FOOFA and when this prosecutrix was asked as to where did this accused take her in May, 2016, she has replied that KAHIN NAHI and when she was asked as to whether this accused had developed physical relations with her, she has FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 2 of 13 replied no. since this witness did not support the case of the prosecution, so, the Ld. APP for the State sought permission to crossexamine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to cross examine this witness and during her cross examination by the Ld. APP for the State, she has admitted that lady Ld. Metropolitan Magistrate had recorded her statement. She has correctly identified her signature on the statement U/s 164 of Cr.PC and same is Ex.PW1/A. She has denied that she was residing with her BUA I.e. the complainant. She has also denied that she went at Sultanpur with her FOOFA or that she stayed there in a room or that they slept together. She has further denied that she had told the police that her FOOFA Ji I.e. the accused had developed sexual relations with her on the pretext of marrying her or that when she refused, this accused told that he loves her and wanted to marry her or that they would marry in court within one or two days or that she could not resist on the enticement by her FOOFA JI I.e. the accused or that her FOOFA JI had told that she was 18 years of age or that she was capable to take decision of herself. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination by the Ld. Counsel for the accused, she has admitted it to be correct that police personnels had obtained her signatures on blank papers. She has further admitted it to be correct that she had deposed before the Ld. MM, who had recorded her statement Ex.PW1/A, at the instance of police personnel. She has also admitted it to be correct that accused had never promised to marry her. She has also admitted it to be correct that she has never been kidnapped or raped by this accused.
5 Whereas, Ms.'RK' (presumed name of the complainant) has been examined as PW2, who has testified that on dated 23.05.2016, she had filed a report of missing of her niece i.e. prosecutrix 'A' (presumed name of prosecutrix) who was residing with her grand mother and at that time, prosecutrix was more than 18years of age and the husband of this witness was working as KAARIGAR of stitching the clothes. She has correctly FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 3 of 13 identified her signature on the complaint and she has stated that police personnel had obtained her signatures on some blank papers. Since this witness did not support the case of the prosecution, so, the Ld. APP for the State has sought permission to crossexamine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her cross examination by the Ld. APP for the State, she has denied that her BHATIJI i.e. prosecutrix was residing with her or that her husband was also absent from the house on dated 23.05.2016 or that her husband had taken away all belongings & her purse or that prosecutrix had also taken her garments or that she had doubted on her husband in kidnapping of the prosecutrix or that she had lodged a complaint after her personal satisfaction. She has further denied that she is deposing falsely. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination by the Ld. Counsel for the accused, she has admitted it to be correct that she did not name the accused as suspect in this case.
6 Whereas, Ms. 'JK' (presumed name of the mother of prosecutrix) has been examined as PW3, who has deposed that she has three children i.e. two daughters & one son and the prosecutrix 'A' (presumed name of the prosecutrix) is her eldest daughter and she has further deposed that in the month of May, 2016, prosecutrix was living in the house of her grandmother in Moti Nagar, Delhi and when she was asked as to whether Bua & Foofa of the prosecutrix were also living in the same house, she has replied no and further deposed that prosecutrix did not tell her anything. Since this witness did not support the case of the prosecution, so, the Ld. APP for the State has sought permission to cross examine this witness and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her cross examination by the Ld. APP for the State she has denied that prosecutrix told her that her FOOFA i.e. accused had developed physical relations with her on the pretext of marrying her or that on dated 23.05.2016, he had enticed away to prosecutrix to Sultan Pur or that FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 4 of 13 he developed physical relations with her or that she was less than 18 years of age at that time. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination, she has admitted it to be correct that at the time of registration of present case, prosecutrix was more than 18 years of age. She has further admitted it to be correct that prosecutrix was never kidnapped away. She has further admitted it to be correct that prosecutrix was never been raped by any person. She has further admitted it to be correct that accused has been falsely implicated in the present case and further admitted it to be correct that at the time of registration of present case, she was in Bihar.
7 I have heard the Ld. Counsels for the parties.
8 After examination of this witness, Ld. APP for the State has submitted that the matter may be adjourned for remaining evidence of the prosecution, whereas, Ld. Counsel for accused has vehemently opposed the submission of Ld. APP for the State and submitted that since, the prosecutrix, her mother and her Bua, who is the complainant in present case, have failed to support the case of the prosecution, so, it will be futile to adjourn the matter for remaining evidence of the prosecution and prayed for closing the evidence of the prosecution and prayed for acquitting to the accused.
9 Since, the perusal of the record shows that, in the case in hand, FIR was registered on the complaint of Ms. 'RK' i.e. the Bua of the prosecutrix U/s 363 of IPC, wherein, she has alleged that her niece 'A', aged about 17/18 years, has gone missing and she suspected that her husband i.e. the accused has induced & kidnapped away and at the time of recording of her examinationinchief, she has deposed that police personnel had obtained her signatures on blank papers and when this witness was crossexamined by Ld. APP for the State, she had denied that prosecutrix was living with her and also denied that she had doubted that the prosecutrix has been kidnapped away by her husband i.e. FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 5 of 13 accused, whereas, at the time of the cross examination of complainant, who has been examined as PW2, she has admitted it to be correct that she did not name the accused, as suspect in this case and since, the prosecutrix has been examined as PW1 and at the time of her examination, she has told her date of birth as 10.04.1998. When this prosecutrix was asked, as to where did this accused take her in May, 2016, she has replied that 'KAHIN NAHI' and she has categorically denied the development of her physical relations with the accused and when this witness was crossexamined by the Ld. Counsel for the accused, she has admitted it to be correct that she was never kidnapped or raped by the accused Shah Mohd. She has admitted it to be correct that accused had never promised to marry her, whereas, mother of the prosecutrix has been examined as PW3, who has deposed that prosecutrix did not tell her anything. She was declared 'hostile' and during her cross examination by Ld. APP for the State, she has denied that the accused had kidnapped or raped to the prosecutrix or that on dated 23.05.2016, she was less than 18years of age and during her crossexamination by Ld. Counsel for accused, she has admitted that prosecutrix was more than 18years of age at the time of alleged incident and the prosecutrix has never been kidnapped or raped by the accused and she was in Bihar at the time of alleged occurrence.
10 So, in the given circumstances, the testimonies of PW1, PW2 & PW3 are found to be inconsistent & contradictory on the material points and the testimony of the prosecutrix is also contradictory to her statement recorded u/s 164 of Cr.PC, which is Ex.PW1/A, the testimony of PW1 & complaint Ex.PW2/A. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if, remaining witnesses FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 6 of 13 of the prosecution are allowed to be examined.
11 Since, nothing incriminating evidence has come on the record against the accused Shah Mohd., therefore, the statement of the accused U/S 313 Cr.PC is dispensed with.
12 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
13 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 7 of 13 be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
14 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 8 of 13 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 9 of 13
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
15 Since, in case in hand, the FIR was registered on the complaint of the Bua of the prosecutrix i.e. PW2, wherein, she suspected that her niece i.e. prosecutrix 'A' has been induced & kidnapped away by her husband i.e. the accused, whereas, at the time of recording of her examinationinchief in this Court, on seeing her complaint Ex.PW2/A, she has stated that the police personnel had obtained her signatures on some blank papers and that paper i.e. her complaint was blank when her signature was obtained thereon. This witness was declared hostile and permission to crossexamine this witness was given to Ld. APP for the State and during her crossexamination, she has denied that the prosecutrix was residing with her or that her husband was also absent from the house on dated 23.05.2016 or that her husband had taken away all belongings & her purse or that FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 10 of 13 prosecutrix had also taken her garments or that she had doubted on her husband in kidnapping of the prosecutrix or that she had lodged a complaint after her personal satisfaction. She has also denied that she has deposed falsely. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination by the Ld. Counsel for the accused, she has admitted it to be correct that she did not name the accused as suspect in this case. Whereas, the prosecutrix 'A' (presumed name of the prosecutrix) has been examined as PW1, and when this prosecutrix is asked as to where did the accused take her in May, 2016, she has replied that 'KAHIN NAHI'. When she was asked whether physical relations were developed between her and the accused, she has categorically denied the development of physical relations with the accused Shah Mohd. This witness was declared hostile and permission to crossexamine this witness was given to Ld. APP for the State and during her crossexamination, She has denied that she was residing with her BUA I.e. the complainant. She has also denied that she went at Sultanpur with her FOOFA i.e. accused or that she stayed there in a room or that they slept together. She has also denied that she had told to the police that her FOOFA Ji i.e. the accused had developed sexual relations with her on the pretext of marrying her. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination by the Ld. Counsel for the accused, she has admitted it to be correct that police personnels had obtained her signatures on blank papers. She has further admitted it to be correct that she had deposed before the Ld. MM, who had recorded her statement Ex.PW1/A, at the instance of police personnel. She has also admitted it to be correct that accused had never promised to marry her. She has also admitted it to be correct that she has never been kidnapped or raped by this accused. Whereas, the mother of prosecutrix 'JK' (presumed name of the mother of prosecutrix) has been examined as PW3, who has deposed that she has three children i.e. two daughters & one son and the prosecutrix 'A' (presumed name of the prosecutrix) is her eldest daughter and she has further deposed that in the month of May, 2016, prosecutrix was living in the house of her grandmother in Moti Nagar, FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 11 of 13 Delhi and when she was asked as to whether Bua & Foofa of the prosecutrix were also living in the same house, she has replied 'No' and further deposed that prosecutrix did not tell her anything. Since, this witness did not support the case of the prosecution, so, the Ld. APP for the State has sought permission to crossexamine this witness and after hearing, this witness was also declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her cross examination by the Ld. APP for the State she has denied that prosecutrix told her that her FOOFA i.e. accused had developed physical relations with her on the pretext of marrying her or that on dated 23.05.2016, the accused had enticed away to prosecutrix at Sultan Pur or that developed physical relations with her or that she was less than 18 years of age at that time. This witness was also cross examined by the Ld. Counsel for the accused and during her cross examination, she has admitted it to be correct that at the time of registration of present case, prosecutrix was more than 18 years of age. She has further admitted it to be correct that prosecutrix was never kidnapped away. She has further admitted it to be correct that prosecutrix was never been raped by any person. She has further admitted it to be correct that accused has been falsely implicated in the present case and further admitted it to be correct that at the time of registration of present case, she was in Bihar.
16 The perusal of the complaint of the complainant shows that the complainant has suspected in her complaint Ex.PW2/A that her niece i.e. prosecutrix has been induced & kidnapped away her husband i.e. the accused, whereas, at the time of her cross examination in this Court, she has admitted it to be correct that she did not name the accused as suspect in this case and the prosecutrix has deposed that accused has never kidnapped or raped her. So, the testimony of PW1 is inconsistent to the complaint Ex.PW2/A and her statement recorded u/s 164 of Cr.PC Ex.PW1/A. The testimony of the complainant i.e. PW2 is also inconsistent & contradictory to her complaint Ex.PW2/A and since, the prosecutrix has disclosed her date of birth as '10.04.1998' and if this statement of FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 12 of 13 the prosecutrix is taken to be true, then, on dated 23.05.2016, the age of the prosecutrix was more than 18years of age, so, she could not be kidnapped, accordingly, testimony of the prosecutrix i.e. PW1 become doubtful & suspicious and benefits of doubt are liable to be given to accused.
17 So, taking into consideration the material inconsistencies & contradictions in the testimonies of PW1, PW2 & PW3, this court is inclined to hold that the testimonies of PW1, PW2 & PW3 are inconsistent, suspicious, unreliable & untrustworthy, so, the same do not inspire any confidence, and since, the charges against this accused were framed u/s 363/366/376 of IPC & Sec.6 of POCSO Act, and the prosecutrix has disclosed her date of birth as 10.04.1998 and when, she was cross examined in this Court, she has deposed that she has never been kidnapped nor raped by accused Shah Mohd. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366/376 of IPC & Sec.6 of POCSO Act beyond reasonable doubt. Accordingly, accused Shah Mohd. is acquitted of the charges framed against him. The accused Shah Mohd. is ordered to be released on furnishing of the bail bond in the sum of Rs.10,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 28.03.2017 Additional Sessions Judge01(West)
Special Court Under POCSO Act / 28.03.2017
FIR No.326/16 PS Moti Nagar State Vs. Shah Mohd. Page 13 of 13