Delhi District Court
State vs Mr. Vishnu. -:: Page 1 Of 11 ::- on 14 September, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE (POCSO ACT),
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56992/2017.
Old Sessions Case Number : 70/2014.
State
versus
Mr.Vishnu
Son of Mr.Mahavi Bhatt,
Resident of Jhuggi no. K-335,
Kathputli Colony, Shadipur, New Delhi.
First Information Report Number : 233/2014.
Police Station : Ranjit Nagar.
Under sections 363/366/376 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 04.08.2014.
Arguments concluded on : 14.09.2017.
Date of judgment : 14.09.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused is present on bail.
Mr.Mohd.Azhruddin, counsel for accused.
Prosecutrix is present along with her mother.
Ms.Vineeta Raghav, Support Person from DLSA is
also present.
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JUDGMENT
New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 1 of 11 ::-
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1. Mr.Vishnu, the accused, has been charge sheeted by Police Station Ranjit Nagar for the offences under sections 363/366/376 Indian Penal Code (hereinafter referred to as the IPC) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Vishnu has been prosecuted on the allegations that on 15.04.2014 at about 02:00 p.m., he had kidnapped the prosecutrix, a minor girl (her date of birth is 17.08.1996); he had kidnapped the prosecutrix with the intention to compel her to marry against her will and to force her to do illicit intercourse; on 15.04.2014, he had kidnapped to a minor girl and had repeatedly committed aggravated penetrative sexual assault on the prosecutrix and had repeatedly raped the prosecutrix. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Predecessor on 04.08.2014.
4. After hearing arguments, charge for offences under sections 363, 366 of the IPC, under section 6 of the POCSO Act and in the alternate under section 376 of the IPC was framed against accused Mr.Vishnu vide order dated 08.09.2015 by the learned predecessor of this Court to which the accused had pleaded not guilty and New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 2 of 11 ::-
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claimed trial.
5. In order to prove its case, the prosecution has examined as many as one (02) witness i.e. the prosecutrix, Ms.X, as PW1 and Ms. Y, mother of the prosecutrix, as PW2. Fictitious identities of Ms.X and Ms.Y are given to the prosecutrix and the mother of the prosecutrix respectively, in order to protect the identity of the prosecutrix.
6. The evidence of the prosecutrix Ms.X as PW1 has been recorded in the Vulnerable Witness Room in camera. Her mother Ms.Y as PW2 has also been examined.
7. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix.
Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
8. Preliminary inquiries were made from the prosecutrix and it appears that she is well oriented and is capable of giving rational New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 3 of 11 ::-
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answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
9. The prosecutrix Ms.X as PW1 has seen accused Mr. Vishnu, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused, who is her husband. She has deposed that "I identify him as Vishnu who is my husband. He is innocent and had not committed any offence. I pray that accused Vishnu may be acquitted as he is innocent."
10.As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her. She has been cross examined but nothing material for the prosecution has come forth. She has deposed that "It is wrong to suggest that accused Vishnu used to entice me by saying that he loved me and he will marry me. Vol. I loved him and I wanted to marry him and I had myself gone with him. It is wrong to suggest that due to inducement by the accused I had left my house and gone with him. It is wrong to suggest that accused established physical relations with me prior to my marriage with him. It is wrong to suggest that I had made the statement to the police against the accused as elaborated in mark "A". It is wrong to suggest that I had given the statement u/s. 164 CR.P.C. Ex. PW-1/B due to the influence and pressure of the accused."
New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 4 of 11 ::-
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11.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "I did not have any physical relations with the accused prior to my marriage with him. My date of birth is mentioned differently in my school record and Aadhar Card as my parents and I do not know my date of birth being illiterate. Vol. However I was 18 years old in 2014. I had got married with the accused in Goa 3 days after I had left my house. It was in a temple. We got married again on 02.06.2014 in Delhi. I had physical relations with the accused after my marriage with him in Goa."
12.The mother of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused.
13. In her cross examination on behalf of Additional Public Prosecutor for the State she has deposed that "It is wrong to suggest that a copy of that application form, the date of birth of the prosecutrix is mentioned as 15.10.1996. Vol. The date of birth of the prosecutrix is mentioned in the said acknowledgement as 15.10.1995. (witness is confronted with the document Ex.PW2/B mentioning the date of birth of the prosecutrix as 15.10.1996). It is wrong to suggest that I am falsely stating the date of birth of the prosecutrix as 15.10.1995 as prosecutrix is already married to the accused and I want to save the accused who is now my son in law." In her cross examination on behalf of the accused, the mother of the prosecutrix Ms.Y (PW2) has deposed that "It is correct that New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 5 of 11 ::-
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the prosecutrix was not a minor on the date of alleged offence. It is correct that accused has not committed any offence and he is innocent."
14.Both the witnesses PWs 1 and 2 have not deposed an iota of evidence of accused Mr.Vishnu that he committed the offences of kidnapping, with intention to compel to marry the prosecutrix against her will and to force her to do illicit intercourse, repeatedly committed aggravated penetrative sexual assault and had repeatedly raped to the prosecutrix.
15.In the circumstances, as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses and the most material witnesses, have not supported the prosecution case and are hostile.
16.The statement under section 313 of the Cr.P.C of the accused New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 6 of 11 ::-
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Mr.Vishnu is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses, are hostile and nothing material has come forth for the prosecution in their cross examination by the Additional Public Prosecutor for the State.
17.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
18.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 7 of 11 ::-
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19.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
20.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
21.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
22.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 8 of 11 ::-
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anything incriminating against accused Mr.Vishnu. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
23.Consequently, no inference can be drawn that the accused Mr.Vishnu is guilty of the charged offences under sections 363, 366 of the IPC, under section 6 of the POCSO Act and in the alternate under section 376 of the IPC.
24.There is no material on record to show that on 15.04.2014 at about 02:00 p.m., accused Mr.Vishnu had kidnapped the prosecutrix, a minor girl (her date of birth is 17.08.1996); he had kidnapped the prosecutrix with the intention to compel to marry against her will and to force her to do illicit intercourse; on 15.04.2014, he had kidnapped to a minor girl and had repeatedly committed aggravated penetrative sexual assault on the prosecutrix and had repeatedly raped the prosecutrix.
25.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr.Vishu for the offences of kidnapping with intention to compel the prosecutrix to marry against her will and to force her to do illicit intercourse, repeatedly committed aggravated penetrative sexual assault and had repeatedly raped the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 9 of 11 ::-
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of evidence that accused Mr.Vishnu has committed any of the charged offences.
26.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Vishnu for the offences under sections 363, 366 of the IPC, under section 6 of the POCSO Act. The prosecution has also failed to bring home the alternate charge for the offence under section 376 of the IPC The presumption of guilt against the accused under the POCSO Act stands rebutted in view of the testimonies of the prosecutrix and her mother.
27.Consequently, accused Mr.Vishnu is hereby acquitted of the charges for the offences of kidnapping the minor prosecutrix with intention to compel her to marry against her will and to force her to do illicit intercourse, of repeatedly committing aggravated penetrative sexual assault and of repeatedly raping the prosecutrix punishable under sections 363, 366 of the IPC, under section 6 of the POCSO Act and in the alternate under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
28.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
29.Case property be confiscated and be destroyed after expiry of New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 10 of 11 ::-
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period of limitation of appeal.
30.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
31.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 14th day of September, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 56992/2016.
Old Sessions Case Number : 170/14.
First Information Report Number :233/14. Police Station : Ranjit Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr. Vishnu. -:: Page 11 of 11 ::-