Delhi District Court
State vs Joginder Sharma S/O Ram Kishan on 20 March, 2018
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE06, WEST
TIS HAZARI COURTS, DELHI
State Case UID No.................................... 57196/16
New SC No. 157/17
Old SC No. 159/13
FIR No. 157/13
PS Mundka
U/S: 8 of POCSO Act
State
Versus
Joginder Sharma S/o Ram Kishan
R/o B5/86, First Floor Sec07, Rohini Delhi
Date of institution : 24.07.2013
Judgment reserved on : 15.03.2018
Judgment delivered on : 20.03.2018
ORDER/JUDGMENT: Accused is acquitted for the offences punishable
U/s. 8 of POCSO Act.
J U D G M E N T
1.Briefly stated facts of the prosecution case are that Ms. "S" (presumed name of the prosecutrix), who was about 17 ¾ years of age moved a complaint dated 02.08.2013 against her tuition teacher for commission of sexual assault upon her during her tuition class on 31.07.2013 that resulted in registration of FIR No. 157/13, U/s 354A of Indian Penal Code (hereinafter referred as IPC) & section 8 of POCSO Act (hereinafter referred as the Act ).
In her complaint, she alleged that on 31072013, she along with her friends Ms. Pinki and Ms. Nikki had gone to take tuition in the San UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 1 Academy of accused Joginder Sharma and there finding her alone when her friends had gone to shop for purchasing a pen, the accused had taken her in an inner room and locked the door and caught hold of her hands, touched her breast and the lower part of her back and also hold her trouser (salwar) thereupon her friends came there and she went away with them and informed her mother who scolded the accused and then she informed her father and the matter was reported to the police.
2. On 02.08.2013, during investigation, the accused was arrested and the statement of prosecutrix was recorded u/s 164 Cr.PC before the Ld. MM and on completion of the investigation, the chargesheet was filed under Section 354A of the Indian Penal Code, 1860 (IPC) and Section 8 of the POCSO Act.
3. Vide order dated 18022014, the Predecessor Court of Sh. Rajnish Kumar Gupta, Ld. ASJ, the then, framed the charges against the accused for the offences punishable under section 8 of the POCSO Act to which the accused had pleaded not guilty and claimed trial and thus the trial had commenced.
4. To prove the guilt of the accused, the prosecution has examined 7 witnesses:
a) The complainant/public witnesses:
• Mr. M, the father of the prosecutrix, PW2, Ms. S, the prosecutrix, PW3 and Sh. Randhir Verma, PW4, the owner of the premises in which the alleged incident took place were the material public witnesses produced by the prosecution to prove the allegations levelled against the accused.UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 2
During the examination, PW2 has exhibited the arrest memo of the accused as Ex. PW2/A and PW3 has exhibited her complaint as Ex. PW3/A & her statement recorded u/s 164 Cr.PC as Ex. PW3/B.
b) Police Witnesses:
• HC Om Prakash, PW1 came to prove the FIR Ex. PW1/A, Certificate u/s 65B of the Indian Evidence Act, Ex. PW1/B & Endorsement on the rukka Ex.PW1/C & DD No. 4A Ex. PW1/D, was the formal witness.
Whereas • SI Vishram, PW5, W/SI Annu, PW6 & W/Ct. Jyoti, PW7, were the witnesses of investigation at different stages and they had come to the witness box to prove their roles played by them.
During their examination they had exhibited the documents viz., endorsement Ex. PW6/A, site plan Ex. PW2/DA, personal search memo of accused Ex. PW6/B, application/request for recording of the statement u/s 164 Cr.PC & for obtaining copy of the same Ex. PW6/C & PW6/D, copy of birth certificate and 10 class certificate Mark PW6/E & PW6/F respectively.
c) Documents not disputed u/s 294 Cr.PC:
• Proceeding/Statement u/s 164 Cr.PC of prosecutrix recorded by Ld. MM Ms. Aditi Garg along with the request of the IO W/SI Annu running into 6 pages Ex. PW3/A.
5. On conclusion of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.PC. wherein all the incriminating evidence and circumstances were put to him but he refuted all the allegations leveled against him and had pleaded his innocence and false implication submitting that since February, 2013, the complainant was not taking tuition classes from his academy, however her two siblings were taking tuition and that the complainant was in the habit of coming to the academy only to take and drop her brother and sister and on the pretext of UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 3 taking & dropping them, she used to call her boy friend in the academy, for which she was strongly reprimanded by him and in order to take personal vengeance, she has leveled false allegations against him and that on the day of alleged incident, Nikki and Pinki, the friends of complainant who were taking tuition classes, were present in the academy and as no such incident had taken place, they did not support the case of the complainant and that is why these two girls were not produced during trial.
6. In his defence, he has examined himself under Section 315 Cr.P.C. as DW1 and one Ms. Nikki as DW2, who was one of the two such friends of the complainant who were with her in the tuition academy on the eventful day of 31.07.2013.
7. The relevant extracts of the testimony of DW2 Ms. Nikki are extracted below :
"On 31072013, I along with my friends Pinki were going to coaching academy from our school. While were were going the prosecutrix also met us and told that she will also go to the academy. As the prosecutrix was not taking tuition, I asked her why she wants to go to the academy, the prosecutrix replied that she had to drop her sister to the academy who was taking classes there.
I and Pinki went inside our coaching class and the accused started giving classes to us. While we were taking classes, noises of laughing were coming. Our coaching teacher went outside the gate and saw that the prosecutrix was in the company of twothree boys and they were talking loudly. Our Sir scolded the prosecutrix for the same. Thereafter, she left that place. Thereafter, we completed our classes and left for our houses'.
8. Also, apart from Ms. Nikki, DW2, in his defence, he has examined himself u/s 315 Cr.PC as DW1.
The relevant extracts of his testimony are extracted below :
"On 31072013, I reached the coaching academy for giving classes. In the class room, I was teaching Nikki, Pinki and other students. Thereafter, I heard noises coming outside the class room. I came out of the gate and UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 4 saw that the prosecutrix was talking to twothree boys. I scolded the prosecutrix and asked her not to come to the coaching academy as she was not taking classes in the academy.
At this stage, accused seeks permission to produce two diaries one for showing the list of the student who were taking classes in his academy in the year 2013 & another regarding the fee paid by the students including prosecutrix and her brother/sister. Heard permitted. The relevant entry i.e. first page of the index showing the details of the students taking classes is Ex. DW1/A bearing the relevant entry at point A1.
The relevant entry i.e. at page No. 12 showing the fee paid by the prosecutrix, her brother/sister is Ex. DW1/B bearing the relevant entry from points A to A1.
9. Sh. Sanjay Jindal, Ld. Addl. PP for the State and Sh. N. Pandey, Ld. Counsel for the accused have addressed their arguments for appreciation of their evidence raising their legal submissions.
10. Ld. Addl. PP for the State has submitted that the prosecution has successfully proved the case of the prosecution against the accused not only through the testimonies of the prosecutrix and her father examined as PW2 & PW3, in corroboration to each other, but also through the corroborated version given by the prosecutrix to the police in her statement recorded u/s 161 Cr.PC, duly supported in her testimony and with her statement recorded u/s 164 Cr.PC Ex. PW3/A, thus, there exists enough evidence against the accused to establish the commission of offences u/s 8 of POCSO Act, by the accused.
11. Also that the discrepancies raised in the testimony of the prosecutrix, PW3, should be overlooked as minor and immaterial contradictions, as the prosecutrix was of the age of about 17 years at the time of the occurrence in the month of July, 2013, and she has been examined on 28052014 after a long gap of one year, and that the prosecutrix has fully supported UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 5 the allegations raised in her complaint with the version given to the police and even before the Ld. Magistrate recorded u/s 164 Cr.PC, and that the discrepancies, being minor in nature, in the testimony of prosecutrix do not affect the trial.
12. Further that the prosecutrix in this case was minor at the time of offence, as her date of birth is 22091995, as per school record and the provisions of POCSO Act are attracted, it is a settled proposition of law, in view of the provisions of section 29 and 30 of POCSO Act that in case one person is prosecuted for committing, abetting, attempting to commit any offence u/s 3,5,7 & 9 of this Act, the court shall presume that such person has done so, unless contrary is proved and that despite the defence evidence led, nothing contrary could be proved of the same weight to that of the prosecution evidence to revert the case of the prosecution.
13. Sh. S.N. Pandey, Ld. Counsel for the accused has submitted that accused Joginder Sharma has been falsely implicated by the prosecutrix due to her personal revenge as she was scolded by the accused on 31.07.2013 because she was talking to boys and making noise outside the class room.
Also her father examined as PW2 was also interested witness who was interested in the prosecution of the accused because he was under the dues uncleared and outstanding towards the accused for the fee of his children taking tuition in the academy of the accused. It is further submitted that Ms. Nikki and Ms. Pinki, the friends of the prosecutrix, who were present at the place of occurrence, allegedly, on the date of incident were not produced during trial by the prosecution though UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 6 they were the material witnesses, of the facts of her captivity in the academy of the accused at the relevant date, time and place. But the prosecution has kept them aback from the trial for which an adverse inference can be drawn against the case of the prosecution that in case of their production they may not support the prosecution case. Also the mother of the prosecutrix who was the person to whom the prosecutrix narrated the incident for taking action was also kept aback from trial, fatal to the prosecution case.
In support of his contentions, Ld. Counsel has relied on the following authorities:
i) Darya Singh Vs. State of Punjab, AIR 1965 SC 328,
ii) Deny Bora Vs. State of Assam, VII (2014) SLT 736 &
iii) State Vs. Raman Kumar, 2017(3) JCC, 1806::2017 (4) AD ( Del).
14. It is further submitted that out of two girls one Ms. Nikki has been examined by the accused as DW2 who has not supported the prosecution case.
Further that the accused himself was examined u/s 315 Cr.PC and has produced the documentary evidence showing the list of students taking classes in his academy during relevant period and that the fee paid by the students for taking coaching in his academy.
Also that the prosecutrix was not taking tuition in the academy of the accused on the relevant date, time and place and was scolded for her nuisances created by her outside the academy.
Also that she had falsely implicated the accused as she was to pay some fee due to the academy but the same was outstanding and she wanted to evade for such payment.
UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 715. Also that the falsity of the allegations are clear from the versions /testimony of the prosecutrix as her testimony was full of major contradictions, improvements, exaggerations and omissions from her previous versions given at different places and that it had discrepancy to that of her father.
And that the testimony of IO PW6, was in absolute contradictions with the testimony of PW2 & PW3, the prosecutrix and her father to show the shallowness of the investigation and false implication of the accused, that creates a doubt in the prosecution story.
Thus, it is prayed that the accused is entitled for the benefit of doubt.
16. I have given my thoughtful considerations to the rival contentions of both the parties and have perused the evidence available on record, meticulously in the light of such contentions.
17. The prosecution, in order to establish its case for the offences under section 8 of POCSO Act, alleged against the accused namely Joginder Sharma, must establish the following ingredients:
i) That the prosecutrix was a minor under the age of 18 years at the time of occurrence.
ii) that the accused had committed sexual assault upon the prosecutrix.
18. What act of the accused constitutes 'sexual assault' is prescribed U/s 7 of the POCSO Act that reads as under :
Sexual assault : Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 8
19. On careful perusal of the evidence on record, it is observed that the prosecution is heavily relied on the testimony of the prosecutrix Ms. 'S', examined as PW3, as she was the only star material witness of the prosecution, being the prosecutrix, who could describe the incident.
The relevant extracts of her testimony are extracted below:
" On 31.07.2013, it was last working day of our school. Accused sent message through my friend that the tuition classes would be held early due to last working day and called me at his academy.
I along with other students namely Pinki and Nikki went to the academy at about 10:30 am. Nikki left the academy and I and Pinki remained there. We took food and on the directions of the accused, we started cleaning the rooms. After about 15 minutes, Nikki returned to the academy.
Accused has left the academy to purchase tap and returned after about 5 minutes and sat in the same room where we were sitting. Accused was sitting quiet and on asking of one of my friend, he told that one incident has happened regarding that one of her earlier student came in the academy and she told him to do Galat Kaam with her. On hearing this, we started laughing.
My friends told me to go to a shop to purchase the pen and when we were going to purchase the pen, accused stopped me near the gate and my both the friends went to the market and I remained inside.
Accused asked me go inside the other room. Despite my protest, accused took me inside the room (1). Accused closed the door of the front room and took me inside the inner room (2) and caught my hands and put his hand on my thighs (3). I asked the accused to leave me and that I want to go my home and accused kissed me forcibly (4) and the accused touched my breast (5). I pushed the accused aside and somehow I managed myself from falling down.
Accused sat down on a chair which was lying there and made me forcible sit on him and started pressing my breast and tried to put his hand in my salwar and touched my private parts (6).
In the meantime my friends knocked at the door and I was saved. I ran and opened the door. My friends asked me as to what has happened. I told them that I would tell later on.
Accused threatened me that if I would disclose about the incident to anyone, he would put entire blame upon me.UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 9
20. The prosecutrix Ms. 'S' in her statement given under Section 164 Cr.P.C., has described the occurrence and the activities allegedly conducted by the accused in following manner :
" On 31.07.2013, there was half day in the school.
For tuition I go to SAN Academy where Joginder Sharma teaches us. On 31.07.2013, he called us early for tuition.
Joginder Sir met me and Pinki on the lunch and we had gone for tuition.
Sir told us to clean the room.
There Nikki also came and we started studying..........
We were going to change the pen. Accused stopped me only on the pretext that he had a complaint against me and wants to talk to me (akele me milna hai).
I went inside the room.
He had taken me in the inner room (1) and forcibly hugged me and started taking kisses (2). I refused and he threatened me to implicate me in false case (3). He has forcibly took me on his lap and placed me on a stool and started pressing breast and putting his hand on my thighs(4). He tried to open my trouser and started kissing and touching my waist(5).
I shouted, my friends knocked the door.
Next day I told the incident to my friends. When I refused to go for tuition, my mother insisted me to disclose the reasons and I narrated the incident to her who informed my father who had taken me for reporting the complaint in the police station.
21. The prosecutrix, in her complaint Ex.PW3/A has reported the matter to the police describing the incident and the alleged activities of the accused in the following manner :
'On 31072013, she along with her friends Pinki and Nikki had gone to take tuition in the San Academy of accused Joginder Sharma, there finding her alone when her friends had gone to shop for purchasing a pen, the accused had taken her in an inner room and locked the door (1) and caught hold of her hands, touched her breast and the lower part of her back and also hold her trouser (salwar) (2) UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 10 thereupon her friends came there and she went away with them and informed her mother who scolded the accused and then she informed her father in the night at 1:30 AM.
22. As the prosecution case is solely based on the evidence of the prosecutrix, her evidence needs a closed scrutiny of her versions given by her at different places i.e. in her complaint Ex.PW3/A, before the police at the time of reporting the matter, before the Ld. MM, while recording of the statement U/s 164 Cr.P.C. and in the Court as PW3 during trial to prove the allegations raised by her against the accused and to check the veracity of her complaint against her tuition teacher.
23. This is not out of place to mention that at the time of alleged occurrence, the age of prosecutrix was just nearing to attain her age of majority i.e. 18 years as she was short of only 2 months to reach to her age of majority and was a student of 11th Class at the relevant period. Also that at the time of occurrence, her two friends Ms. Nikki and Ms. Pinki were also available on the place of occurrence and both these friends were available 'just prior' and 'just after' the occurrence but none of the two girls namely Ms. Nikki and Ms. Pinki have been produced by the prosecution to prove the circumstances and atmosphere in which the incident had taken place and the accused has produced Ms. Nikki, one of the two friends of the prosecutrix, in his defence as DW2 who has deposed absolutely contrary facts in the Court to that of the prosecutrix, deposing that on the relevant date, time and place, the prosecutrix was not taking tuition at the academy with her as she has not taken tuition from Academy after February, 2013 when she had taken her 10th Exams and she did not opt to take tuition in her 11th class in the academy with her and that on 31 st UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 11 of July, 2013, the alleged eventful day, no such incident as stated by the prosecutrix had taken place as she alongwith another friend Ms. Pinki had gone to take tuition in the academy and that on that day prosecutrix had come to drop her younger brother and sister to academy and was scolded by the tuition Sir (accused) for talking with some boys outside the academy and for creating disturbance for the classes. Also that on that day there were number of other students of different classes were present for their tuition in the academy.
24. On appreciation of the evidence of Ms. S, the prosecutrix, it is observed that the prosecutrix has reported the circumstances in different manner to that of her versions given before Ld. M.M. while recording her statement under 164 Cr.P.C. and also differently deposing the incident in the Court as PW3.
25. It is observed that her three versions given at three places, one in her complaint Ex.PW3/A, another in her statement recorded U/s 164 Cr.P.C. Ex.PW3/A (hereinafter this document will be referred as Ex.PW3/A1) and thirdly, in her testimony as PW3, she has described in different connotations regarding the manner of occurrence, the persons available with her at that time, the activities of the accused allegedly conducted by the accused upon her, the nature of threats given to her, the manner and time of narrating the incident to her friends/mother.
26. It is observed that the prosecutrix has reported the activities of the accused differently in her three versions given at different places to UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 12 different persons i.e. the police in her complaint Ex. PW3/A, to the Ld. MM, in her statement u/s 164 Cr.PC and in her testimony deposed before the court as PW3.
As per her complaint Ex. PW3/A, the activities of the accused are that,
1) The accused had taken her in an inner room and locked the door.
2) He caught hold of her hands, touched her breast and the lower part of her back and also hold her trouser (salwar).
In her statement recorded u/s 164 Cr.PC, she had stated that,
1) The accused had taken me in the inner room.
2) He forcibly hugged me and started taking kisses.
3) I refused and he threatened me to implicate me in false case.
4) He has forcibly took me on his lap and placed me on a stool and started pressing breast and putting his hand on my thighs.
5) He tried to open my trouser and started kissing and touching my waist.
Whereas in her testimony as PW3, she testified the activities of the accused as given below,
1) Accused asked me go inside the other room. Despite my protest, accused took me inside the room.
2) He closed the door of the front room and took me inside the inner room.
3) He caught my hands and put his hand on my thighs.
4) I asked the accused to leave me and that I want to go my home and accused kissed me forcibly.
5) He touched my breast.
6) He sat down on a chair which was lying there and made me forcible sit on him and started pressing my breast and tried to put his hand in my salwar and touched my private parts.
27. It is observed that the prosecutrix has increased the 'number' of allegations against the accused, the degree of sexual assault, nature of the activities and the elements of threats every time from the day she reported the matter to the police until she came to the witness box to testify the manner of occurrence.
28. In her complaint Ex. PW3/A, she has stated that accused had taken her in an inner room and locked the door and further the accused caught hold of her UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 13 hands, touched her breast and the lower part of her back and also hold her trouser (salwar).
But in her statement recorded before the Ld. MM u/s 164 Cr.PC, she had improved her statement stating that the 'forcibly hugged' her and started 'taking kisses' and she refused and he 'threatened her to implicate her in false case' and further that the accused has 'forcibly took her on his lap' and placed me on a stool and started pressing breast and 'putting his hand on her thighs' and that the accused 'tried to open her trouser' and 'started kissing and touching her waist'. Thus, the prosecutrix has improvised her version to the extent of changing the activities of the accused and even contradicting to the extent of adding the element of threats of her implicating in a false case. Similarly, in her testimony before the court she has made a number of improvements, exaggerations and even contradictions regarding the fact that she asked the accused to leave her and that she wanted to go home and that accused used force with every activities and changed her version from the fact that the accused 'tried to open her trouser' to forcibly put his hand in her trouser (salwar) and touched her private parts.
29. The million dollar question was that as to whether the evidence tendered by PW3, who was the material star witness of the prosecution, was reliable, trustworthy and what evidenciary value to be accorded to?
30. In this case PW3 is the material witness of the prosecution on which the entire case of prosecution is heavily relied upon, thus to place reliance on the testimony of this witness, the quality of her evidence must be very high as observed in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21 ' by the Hon'ble Supreme Court, UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 14 It was observed that, "... the "sterling witness" should be of a very high quality and caliber 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 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 cross examination 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.
...........
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."
31. The prosecutrix Ms. 'S' in her statement recorded U/s 164 Cr.P.C. & in her testimony raised certain activities of the accused not only in different manner, but even such activities were not at all reported in her complaint UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 15 and her version was absolutely at variance from her complaint on the basis of which the FIR was lodged, thus, her testimony lacks credit of worthiness and even needs to be discarded, in view of the law settled in case titled as State, represented by Inspector of Police, Tamilnadu Vs. Sait @ Krishna Kumar , in Criminal Appeal No.70 OF 2002 decided on 01102008 wherein it was observed by the Hon'ble Apex Court: 'In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded'.
32. Further, certain material discrepancies in the form of omissions, contradictions, improvements and exaggerations were noted in her testimony, and thus, her version as PW3 lacks credence in view of observations made in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, wherein he Hon'ble Supreme Court has observed that, 'Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence'.
33. Also, it is observed that the large number of material discrepancies in the form of contradictions regarding name & number of her friends accompanied her to tuition, the name of person from whom she received information regarding early tuition on the eventful day and omissions, improvements and exaggerations regarding the alleged activities, which were material in nature shake her version on which the prosecution story is UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 16 heavily relied, in view of the law settled in a case titled as Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334)16 , wherein the Hon'ble Supreme Court has observed that, 'The discrepancies in the evidence of witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence.
In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt.
34. Further, it is observed that according to the prosecutrix, after the occurrence on 31072013 when she had returned to her house, her mother was not present and her father had gone to Jaipur trip and she on the very next day i.e. 01082013 narrated the incident to her friend and after returning from her school refused to attend tuition and on asking the reasons, she narrated the incident to her mother who made a telephone call to accused and scolded him and she informed her father on telephone who came in night and made a call to 100 number.
To the contrary her father, examined as PW2, deposed in the court that on 31072013 at about 9 PM, his wife informed him on his mobile number that the accused had committed eve teasing with the prosecutrix and he returned in the night and informed the police on 100 number. This is surprising that two inconsistent versions have come on record from the PW2 & PW3 on these aspects noted above. According to PW2, he was informed about the incident on 31072013 at 9 PM by his wife i.e. mother of the prosecutrix ( PW3). According to PW3, she informed her mother about the incident only on next day (01082013) after returning UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 17 from the school and her father returned on 01082013 i.e. next day of the date of incident i.e. 31072013 and then informed the police.
As per documentary evidence, the DD entry was of 02082013 and FIR was also registered only on 02082013. Thus, both the PW2 & PW3 were inconsistent on these aspects.
35. Further, the mother of the prosecutrix with whom the prosecutrix has allegedly narrated the incident was neither cited nor produced to clarify such inconsistencies in the testimonies of PW2 & PW3. Nor 'the friend' of the prosecutrix to whom she firstly narrated the incident in the school was brought in the witness box, to clarify the inconsistencies arisen in the testimonies of PW2 & PW3.
36. Thus, the prosecutrix, PW3 who was the sterling witness of the prosecution and the prosecution was basically relying on her sole testimony without any corroboration for proving the allegations against the accused, but the prosecutrix had given inconsistent and contradictory versions not only from her versions given at different stages regarding her presence on the spot, the alleged activities of the accused and the manner of information given by her to narrate the incident but also her testimony was full of inconsistencies with other witnesses examined, that make her testimony unreliable and unworthy of credence in view of the observations made by the Hon'ble Supreme Court in case titled as 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' wherein, it was opined that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 18 the testimony of such witnesses become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses."
37. Thus, in the abovenoted facts and circumstances, on the face of the material omissions, contradictions and exaggerations and improvements in the testimony of PW3, to her previous versions given at different places, and finding that such discrepancies were vital in nature, affecting the prosecution case, the version of PW3 does not inspire confidence & this piece of evidence of the prosecution needs to be discarded.
38. As per prosecution version one Nikki, a friend of the prosecutrix had allegedly accompanied the prosecutrix to the place of incident on the eventful day but such witness was not produced by the prosecution nor she was cited as witness and was produced as DW1 by the accused. She had given absolutely contradictory version stating that on the eventful day of 31072013, the prosecutrix had not at all gone for tuition with her nor she was taught by the accused on that day as she had already left tuition from the academy on completion of her 10th class examination somewhere in FebruaryMarch, 2013 as she did not join her tuition in 11th class. Thus, the version of the prosecutrix regarding the fact that Nikki accompanied her to tuition in the academy is absolutely contradictory to each other on material points of even presence of the prosecutrix in the academy on that day.
39. Further, as per the prosecution story was based on the complaint of the prosecutrix she had gone to the tuition with Ms. Pinki and Ms. Nikki, her two friends in San Academy, where accused was their tuition teacher, UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 19 thus, Ms. Pinki and Ms. Nikki, the two friends of the prosecutrix, were material witnesses of the prosecution who could testify the facts that the prosecutrix had joined the tuition at the relevant date, time and place wherein the alleged occurrence in the San Academy had taken place. These witnesses were also material piece of evidence to prove the facts that they had gone to purchase the pen and she remained alone with the accused in the academy and when they returned back the door was closed from inside and they had knocked such door also to prove that the prosecutrix was saved from the clutches of the accused because these two girls had knocked the door of the room wherein such incident had allegedly taken place.
40. Further, one of the friends namely Ms. Nikki was produced by the accused and was examined as DW2. She had deposed in the court that on the relevant date, the prosecutrix was not taking tuition in the San Academy with them in class 11th as she had already left the tuition classes after her 10th class examinations, somewhere in the month of February March, 2013.
41. To prove these facts that prosecutrix was not taking tuition during the relevant period in San Academy from the accused, the accused has produced one diary, relevant page of such diary was exhibited as Ex. DW1/A, to show the name of the students who were taking classes during such relevant period in his academy and he has also produced another diary, relevant page was exhibited as Ex. DW1/B, on which the fee paid by the students attending classes was accounted and entries of such payments or dues were made.
UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 2042. According to diary having document Ex. DW1/A in the academic session of 20132014 for the 11th class, the prosecutrix was not student in such list, who joined his academy on such relevant period and according to the fee diary she had paid fee only upto February, 2013 when she was in 10th class.
43. The court while tracing the papers in the judicial record could lay its hands on one such document that was the original card of the prosecutrix issued from San Academy of the accused pertaining to her class 10 th wherein even the fee entries were made with signatures of the accused and such entries were clearly 'tallying' with the entries of the diary of the accused produced before this court with relevant page Ex. DW1/B. Such card was produced by the prosecutrix during removal of the objections raised by the prosecution at the time of scrutiny of chargesheet to place some proof to show that the prosecutrix was taking tuition in the San Academy on the relevant date, time and period.
The card of class 10th has been produced by the investigating agency that was attached with record to show that the prosecutrix was taking tuition in such San Academy but no such card as issued by San Academy was produced by the prosecutrix to prove the facts of joining of the prosecutrix tuitions in her 11th class in the academy nor any such entries were made.
The other diary with relevant page Ex. DW1/A shows the name of Ms. Nikki and Ms. Pinki as students of his academy in 11 th class but the name of the prosecutrix in such diary is absent and such diary appears to be prepared in routine business of normal course as entries of such diary UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 21 were matching with the card produced by the prosecutrix during the investigation pertaining to her 10th class when she was attending the academy for tuition.
44. To clarify these facts, in his defence the accused has examined Ms. Nikki, one of the friends of the prosecutrix as DW2.
The relevant extracts of the testimony of DW2 Ms. Nikki are extracted below :
"On 31072013, I along with my friends Pinki were going to coaching academy from our school. While we were going, the prosecutrix also met us and told that she will also go to the academy. As the prosecutrix was not taking tuition, I asked her why she wants to go to the academy, the prosecutrix replied that she had to drop her sister to the academy who was taking classes there.
I and Pinki went inside our coaching class and the accused started giving classes to us. While we were taking classes, noises of laughing were coming. Our coaching teacher went outside the gate and saw that the prosecutrix was in the company of twothree boys and they were talking loudly. Our Sir scolded the prosecutrix for the same. Thereafter, she left that place. Thereafter, we completed our classes and left for our houses'.
45. On appreciation of the evidence of DW2, it is observed that according to DW2, the prosecutrix was not taking tuition from the academy of accused and on the day of occurrence she had gone to drop her sister in the academy of accused, who were also taking tuition from the academy of accused and when the accused started teaching to her & Ms. Pinki for class 11th, the prosecutrix who was standing outside started making noises, due to which the accused scolded the prosecutrix.
46. Further the accused has examined himself u/s 315 Cr.PC as DW1 and deposed that, "On 31072013, I reached the coaching academy for giving classes. In UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 22 the class room, I was teaching Nicky, Pinky and other students. Thereafter, I heard noises coming outside the class room. I came out of the gate and saw that the prosecutrix was talking to twothree boys. I scolded the prosecutrix and asked her not to come to the coaching academy as she was not taking classes in the academy.
At this stage, accused seeks permission to produce two diaries one for showing the list of the student who were taking classes in his academy in the year 2013 & another regarding the fee paid by the students including prosecutrix and her brother/sister'.
47. Further, it is observed that the prosecutrix in her complaint Ex. PW3/A as well as statement u/s 164 Cr.PC and also in her depositions before the court had stated that she along with her friends Ms. Pinki and Ms. Nikki had gone to take tuition in the San Academy of accused Joginder Sharma and that on the date of occurrence at a point of time her friends had gone to shop for purchasing a pen. Thus, Ms. Pinki and Ms. Nikki were the material witnesses to prove the facts that the prosecutrix had actually gone to the academy for taking tuitions with them on the relevant date, time and place and that these two girls had gone to shop for purchasing the pen, on finding her alone, the incident of alleged sexual assault by the accused had taken place. Also these witnesses were material and vital to prove the facts stated by the prosecutrix that when these girls reached academy and knocked the door, she could be saved from the clutches of accused during occurrence, thus, Ms. Pinki and Ms. Nikki, the friends of the prosecutrix were the material witnesses not only to prove the facts that the prosecutrix had gone to academy for taking tuition 'with them' at the relevant date, time and place but also to prove the above noted facts which occurred 'just prior to' and 'after' the alleged incident of alleged sexual assault. These witnesses become more vital and material on the face of the defence taken by the accused that the prosecutrix was not taking tuition UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 23 classes at all from his academy on the relevant date as she had already left the academy after February, 2013 on completion of her academic session of 20122013 for her 10 th class and the prosecutrix has produced the proof of her taking tuition in the academy only for her 10 th class but not for the 11th class when she was asked to produce the proof of her taking tuition in the academy on the relevant date, time and place.
48. As per the provisions of section 114 of the Indian Evidence Act, 1872, the court may presume existence of certain facts and may draw an adverse inference in respect of the allegations not traversed and specifically as per clause (g) of section 114, of the Act, prescribes that if certain evidence which could be necessary to prove certain facts and is not produced would, if produced, be unfavorable to the person who withholds it.
49. In this case, the prosecution has not brought any of the two of the friends of the prosecutrix duly named as Ms. Pinki and Ms. Nikki by the prosecutrix in her complaint as well as in her statements given u/s 164 Cr.PC and in the court as PW3 with whom she had gone to the academy of the accused for taking tuition and had deposed that because of their absence on the spot, as they had gone to purchase pen, the accused could find an opportunity to sexually abuse her, thus, these friends were the best evidence, to prove these facts and this piece of evidence, though material, was kept aback, leads to an adverse inference that in case of their production in the court, their evidence would be unfavourable to the prosecution as it was withheld by the prosecution.
UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 2450. To the contrary, one of the two friends namely Ms. Nikki was produced by the accused in his defence as DW2 and her testimony was absolutely 'unfavorable' to the prosecution case rather her testimony has demolished the case of the prosecution entirely for the premises that the prosecutrix has gone to the academy 'for tuition' with her & her friend namely Ms. Pinki. This fact is corroborated with the document i.e. admission card issued to her by the academy for class 10th that was produced by the prosecutrix to IO and it shows that in case she had joined the academy for class 11th then she would have been in a position to produce the similar card so issued to her by the academy for her class 11th but she did not produce any such card when asked by IO.
Thus, even nonproduction of any such card of admission in the academy for 11th class also leads to an adverse inference rather strengthens the defence of the accused that at the relevant period, date and time she had not even joined the tuition classes with her friends namely Ms. Nikki and Ms. Pinki in the academy to prove the fact that she had gone for tuition when such incident as alleged, had taken place.
51. As per the settled propositions of law, nonproduction of 'Best evidence' needed to be produced on the face of evidence of DW2, one of her friends, is a serious infirmity to prove the prosecution case, in view of law settled in case titled as Darya Singh Vs. State of Punjab, AIR 1965 SC 328 , wherein the Hon'ble Supreme Court has observed that, 'The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case which is brought before it for trial. It is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but normally he ought to examine all the eye witnesses in support of his case. It may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 25 and honestly and not with a view to suppress inconvenient witnesses from the witnessbox.
If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case'.
52. Further, the Hon'ble Supreme Court in case titled as 'Deny Bora Vs. State of Assam, VII (2014) SLT 736' was pleased to hold that:
'If a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined, it would not have supported the prosecution case'.
53. Thus, considering the fact that Ms. Pinki and Ms. Nikki, the two friends of the prosecutrix were the material witnesses to depose regarding the circumstances 'just prior to' and ' just after' the occurrence, and to prove as to whether the prosecutrix had gone to the academy for taking tuitions along with them on the eventful day or to prove that her friends had gone to shop for purchasing the pen and that the accused had stopped the prosecutrix and got an opportunity in their absence to sexually abused her in between such period when the alleged incident had happened with the prosecutrix.
But the prosecution had not only kept back these material witnesses, but also could not produce any cogent piece of evidence either documentary or ocular in the form of the admission card of the academy for the academic session of 20132014 for class 11 th ever issued to the UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 26 prosecutrix that is fatal to the case of the prosecution as it leads to an adverse inference as drawn under section 114 (g) of the Evidence Act that in case of the production of such evidence or the witnesses, they may not support the case of the prosecution. In the instant case the adverse inference got strengthened and proved when one of such friends namely Nikki was produced by the accused as DW2 and she had not supported the case of the prosecution rather demolished its case.
54. Further, the witness Ms. Nikki who was kept aback by the prosecution from trial was produced as defence witness by the accused and examined as DW2 and she had testified in the court that the prosecutrix had neither joined the academy of the accused for her class 11 th nor she had accompanied them for tuition in the academy on the relevant date, time and place. This piece of evidence produced by the defence had absolutely destroyed the fabric of prosecution story of sexual assault of the prosecutrix by the accused in his academy on the day when the prosecutrix along with her friends had allegedly gone for tuition and her friends had left her alone with the accused for purchasing a pen and she was allegedly abused sexually being alone at that time in the academy.
55. It is well settled principle of law as settled in case titled as A.N. Venktesh Vs. State of Karnataka, 2005VIII (AD) (SC) 37, that the defence evidence should be weighed at par with the prosecution evidence, if was not impeached on behalf of the state.
56. In the present case when the defence evidence is compared with that of the prosecution evidence, it was of more weight than to that of UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 27 prosecution evidence as the solitary testimony of the prosecutrix was found with full of material omissions, contradictions, exaggerations and improvements, vital in nature, affecting the prosecution case, and thus it was of very less weight to that of the ocular evidence of Ms. Nikki examined as DW2 without any impeachment of such version on behalf of the state that was produced on behalf of the accused alongwith the corroborative documentary evidence i.e. Ex. DW1/A & DW1/B and such evidence was heavier to that of the admission card of only of her 10 th class issued by the academy produced by the prosecutrix to the investigating agency.
57. On appreciation of evidence of PW2, the father of the prosecutrix and PW3, the prosecutrix it is observed that both these witnesses had discrepancy regarding the date of narration of the incident to the mother and date of reporting of the matter to the police.
As per PW2, the father and the prosecutrix, her mother had informed him (her husband) on the date of incident when he returned back on the night of 31072013 as per his testimony but as per prosecutrix as PW3 she had informed her mother on the very next day i.e. on 01082013. The relevant extracts of his testimony are extracted below:
'On 31.07.2013, I was out of Delhi for a trip and at about 9:00 Pm my wife informed me on my mobile phone and told me that accused had committed eve teasing with the prosecutrix. In the night at about 12:30am, I returned to my house. The prosecutrix also told me about the incident. In formed the police on 100 number. I was called in the police station. I along with the prosecutrix went there. SI Anu came in the PS and made inquiries from the prosecutrix and recorded her statement. I refused for the medical examination of the prosecutrix.UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 28
58. The mother of the prosecutrix was neither cited nor produced to clarify the discrepancies between PW2 & PW3 regarding the date of narration of the incident to her by the prosecutrix.
This discrepancy become material on the face of record produced by the accused as DW1/B through which it is proved that the father of the prosecutrix as in arrears of fee, that was to be paid by him to the accused for the tuition of his children to the academy and thus, even the father of the prosecutrix has been proved as an interested witness who was interested in the prosecution of the accused even for such reasons of dues of payment of the fee of his children.
59. Here, it is worth mentioned that the entries made in the diary Ex. DW1/B for payment of fee paid by the students of his academy including the prosecutrix with the arrears, were in 'tally' with the entries shown on the admission card issued to the prosecutrix for her 10 th class and such card was handed over by prosecutrix to the investigating agency during investigation, when asked for a proof that she was taking tuition in the academy.
60. Thus, in the abovenoted facts and circumstances from the entire evidence on record, it is observed that the prosecution has miserably failed to prove the case for proving the offences under section 8 of POCSO Act against the accused Joginder Sharma, beyond reasonable doubt, whereas the accused was successful to prove the contrary to demolish the case of the prosecution.
UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 2961. Thus, a benefit of doubt is given to the accused namely Joginder Sharma on the basis of abovenoted settled principles and in the established facts and circumstances of the case.
62. Consequently, the accused namely Joginder Sharma is acquitted of the offences under section 8 of POCSO Act.
Digitally signed by ARCHANA ARCHANA SINHA
SINHA Date: 2018.03.22
16:17:21 +0530
Announced in the open Court (Dr. Archana Sinha)
th
on this 20 day of March 2018 Addl. Sessions Judge06,West
Tis Hazari Courts, Delhi
20.03.2018
UID No. 57196/16 FIR No. 157/13 PS. Mundka State Vs. Joginder Sharma Page No. 30