Delhi District Court
State vs . Rambir Singh, S/O. Sh. Bhuda Singh, R/O on 30 November, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0275202013
Sessions Case No. 109/2013
Assigned to Sessions. 29.08.2013
Arguments heard on 30.11.2013
Date of Judgment 30.11.2013
FIR No. 385/2013
State Vs. Rambir Singh, S/o. Sh. Bhuda Singh, R/o
House No.A163, Gali No.2, Ambika
Vihar, Delhi.
Police Station Karawal Nagar
Under Section 363/342 IPC & section 8 of POCSO
Act'2012
JUDGEMENT
1. Unfolded case of prosecution is that 01.07.2013, S.I. Ishwari Prasad along with HC Satish were returning to Police Station after attending a call from Shiv Vihar and when they had reached in a gali No.15, Ambika Vihar, he saw crowd there and he c came to know that one person had brought a minor girl at his residence and was kissing her in the room. SI Ishwari Prasad had reached at the first floor of the house where he met with the complainant Smt. Kamlesh. At that time, accused was also present there and minor girl was also present there. SI Ishwari Prasad had recorded the statement of Smt. Kamlesh which Ex.PW1/A and made his endorsement thereon vide Ex.PW3/A and handed over the rukka to HC Satish Kumar for registration of SC No.109/2013 State Vs. Rambir Singh FIR. Accordingly, FIR Ex.PW3/B was registered against the accused. During the course of investigation, police had arrested accused Rambir Singh and filed challan vide FIR No.385/2013 dated 01.07.2013 u/s 363/342 IPC for the prosecution of accused Rambir Singh. Since, this court being designated court for trial of the cases pertaining to child victims, hence, filed before this court. CHARGE:
2. On the basis of material available on record, this court vide order dated 28.09.2013 framed a charge against accused Rambir Singh for the offence punishable u/s 363/342 IPC and section 8 of POCSO Act'2012 to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
3. In order to prove its case prosecution has examined 03 witnesses namely PW1 Smt. Kamlesh, PW2 Victim and PW3 S.I. Ishwari Prasad.
4. PW1 Smt. Kamlesh, mother of victim, is a material witness. This witness stated that today she does not recollect exact date and month, however, it was in this year i.e. 2013, she was present at her house at about 12:30 p.m. and she noticed that her daughter aged about 8 years, who is the victim in this case, found missing. This witness had enquired from her neighbours about the presence of the victim and during the search of victim, she reached near a person, who was installing ice, who told her that he had seen one person namely Fauzi was taking away the victim. That person led her to the house of Fauzi and at that time, her mother, her husband and SC No.109/2013 State Vs. Rambir Singh her neighbourers were with her.
5. This witness further stated that the ice vendor had taken them to the house of accused which was situated at Panchal Vihar. This witness further stated that she saw that her daughter was sitting on a cot and the accused was also sitting on the same cot, half bottle of daru (desi Sharab) was lying on the cot and accused was consuming the same and some other articles were also lying there and one doll which was arranged by the accused for her daughter was also lying there. This witness had not seen any wrong act done by accused with her daughter at that time. This witness voluntarily said that they entered in the room after pushing the door and the door was bolted from inside.
6. This witness had lifted her daughter from the cot and came out from the room and she asked her daughter how she reached there, she told her that accused had enticed her by alluring her to provide doll and other eatables i.e. Mango, Mufali (ground nuts) etc. This witness further stated that her daughter had told her that accused had kissed her and asked her to sleep and he will leave her in the evening time to her house. This witness had informed police at 100 number.
7. This witness has proved her statement Ex.PW1/A. This witness has correctly identified the accused.
8. In her cross examination by Ld. APP for the State, this witness stated that she had not stated to the police in she statement that when she had reached in the room of accused situated at second floor, her daughter was lying on the cot and accused was SC No.109/2013 State Vs. Rambir Singh also lying on the cot and she saw that he was kissing her (chuma chati kar raha tha). This facts was confronted with the portion A to A of statement Ex.PW1/A where it is so recorded. This witness admits that police had prepared site plan Ex.PW1/B on her pointing out and she had signed on the site plan at point A and her daughter was also taken to the hospital where she was medically examined and her daughter was also produced before Ld. MM for recording her statement in Karkardooma Courts. This witness admits that accused was arrested by the police in her presence and she has proved arrest memo Ex.PW1/C and personal search memo Ex.PW1/D of accused.
9. In her cross examination by Sh. Arun Sharma, Ld. counsel for accused, this witness stated that when victim was found missing she was present at her rehri.
10.In Court Question : In your examination in chief you had stated that when the victim was missing you were present at your house and now in your cross examination you had stated that you were present at your rehri. Which version is correct ? This witness replied that she had come to her house from rehri by leaving her son namely Abhishek there. Again said. she had left her two sons at her Rehri namely Abhishek and Puneet.
11.This witness further stated that children and adults used to come at her rehri to purchase eatables and accused also used to come to purchase cigarette and nothing else. This witness further stated that her husband had never disclosed about the relations with the accused and accused was not known to her prior to the day of present case. This witness had denied to the suggestion that wife and children of SC No.109/2013 State Vs. Rambir Singh accused were also present at that time. This witness further stated that he had put her signatures on the documents in the Police Station and the contents of the documents were not read over to her. This witness had denied to the suggestion that her husband had borrowed Rs.10,000/ from accused or that in order to avoid liability she had lodged the present false case against the accused.
12.PW2 Victim. This witness has been examined by this court for ascertaining her knowledge and capacity of understanding of this child witness being child witness by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
13.This witness stated that she does not remember date, month and year, however, it was summer season when she was playing in gali outside in front of her house, one person came there and taken her on pretext that he would provide her a doll and he had taken her to his house. This witness further stated that he had reached at his house with her within 10 minutes. This witness further stated that he had provided her a doll of orange colour.
14.This witness further stated that his wife and children were not present there at that time and he had told her that his wife and children were in village and they would come in the evening time.
15.This witness further stated that accused had eaten chhole bhaturey and also consumed liquor and accused had done nothing with her. This witness further deposed that her father, brother, maternal uncle and some other public persons had SC No.109/2013 State Vs. Rambir Singh come at the house of accused after about two hours and her mother had not come there at that time and she was at home.
16.This witness further stated that accused had asked her to sleep and he would leave her at her house in the evening time. Her father and one Pappu Uncle had taken her to police station and she was taken to GTB hospital by the police where she was medically examined.
17.This witness has proved her statement u/s 164 Cr. P.C. vide Ex.PW2/A but on seeing the same, she submits that she does not remember if she had put her thumb impression thereon.
18.This witness has correctly identified the accused produced before her through video conferencing.
19.In her cross examination by Sh. Arun Sharma, Ld. counsel for accused, this witness stated that her mother used to install a rehripani at a distance of 100 steps from my house and her mother used to sell namkeen, bidi cigarette and matthi etc. and accused used not to come at rehri of my mother and she used to leave her house with the permission of her parents either to play or otherwise.
20.This witness further stated that on the day when she was playing outside in front of her house she had not asked her parents before leaving her house. This witness further stated that she had not been known to accused prior to day when he had taken her. This witness further stated that while she was coming to court with her parents, SC No.109/2013 State Vs. Rambir Singh her parents had tutored her what she has to depose in the court.
21.In Court Question : Whether you had stated before magistrate the correct version of incident or stated at the instance of some other persons? This witness replied that she had stated correct version to the magistrate and she had not stated at the instance of some other persons.
22.PW3 S.I. Ishwari Prasad is a material witness being I.O. This witness stated that on 01.07.2013, he was posted at Police Station Karawal Nagar and he was returning to Police Station after attending a call from Shiv Vihar and when he reached in a gali No.15, Ambika Vihar, he saw crowd there and he came to know that one person had brought a minor girl at his residence and was kissing her in the room.
23.This witness further stated that he had reached at the first floor of the house where he had met with the complainant Smt. Kamlesh and at that time, accused was also present there and minor girl was also present there. This witness had recorded the statement of Kamlesh vide Ex.PW1/A and made his endorsement thereon vide Ex.PW3/A. Thereafter, he had handed over the rukka to HC Satish Kumar for registration of FIR from police station and got the FIR registered vide Ex.PW3/B.
24.This witness has identified the signature of HC Shailender as he had seen him signing and writing in his ordinary course of his duty. This witness had prepared site plan on the pointing out of complainant Ex.PW1/B and taken the victim to hospital for her medical examination and collected the MLC of victim Ex.PW3/C from the hospital (defence counsel has no objection in exhibiting the documents). SC No.109/2013 State Vs. Rambir Singh
25.During the course of investigation, this witness had arrested accused at spot vide arrest memo Ex.PW1/C and his personal search was conducted vide personal search memo Ex.PW1/D.
26.During the course of investigation, this witness had moved an application Ex.PA before this court and the application was marked to ld. ACMM, North East District and ld. ACMM had further marked this application to Ms. Harleen Singh, ld. MM. The application was put before Ms. Harleen Singh, Ld. MM on the same day who recorded the statement of victim u/s 164 Cr.P.C. on the same day. This witness had moved an application Ex.PB for collecting the statement of victim and same was allowed by the Ld. MM and copy of statement is proved vide Ex.PW3/D.
27.During the investigation, this witness had recorded statement of PWs and collected the age proof of victim from her school and this witness has proved age proof document collectively vide Ex.PW3/E (documents are running in four pages). (defence counsel has no objection in exhibiting the documents). After completion of investigation, this witness had sent the case file to court for judicial verdict.
28.In his cross examination by Sh. Arun Sharma, Ld. counsel for accused, this witness stated that he had not seen any glass or whiskey bottle or doll at the spot. This witness had denied to the suggestion that he had not investigated the case fairly and properly or that he had not produced the victim before Ld. MM for recording her statement or that he is deposing falsely.
SC No.109/2013 State Vs. Rambir Singh
29.Ld. counsel for accused requests to close the PE as no incriminating evidence regarding offence u/s POCSO Act could come on record connecting the accused in the present case. Ld. counsel also pointed out towards the testimony of PW1 who is the complainant in this case and towards the testimony of victim in support of his arguments. Ld. counsel further submits that in any circumstance case would not be succeeded beyond section 363 IPC. Ld. counsel further submitted that since they admitted the documents i.e. MLC of victim, statement of victim u/s 164 Cr. P.C., age proof of the victim etc. In her statement u/s 164 Cr. P.C. victim had not levelled any allegation against accused nor in her testimony before this court and PW2 who is the mother of the victim and complainant had stated in her testimony before this court only upto the extent of section 363 IPC and further MLC does not suggest any offence under POCSO Act.
30.On other hand Ld. APP for the State, requests to examine remaining witnesses to prove its case under POCSO Act.
31.Heard. Record perused. On perusal of record, it is revealed that PW1 who is the complainant and mother of the victim had stated in the testimony that she had come to know from one ice vendor that accused had taken the victim to his house and further from the testimony of this witness was recovered from the possession of accused but the fact of offences under section POCSO Act are missing. Further, PW Victim who has been examined as PW2 had stated that accused had not done anything with her. Moreover she had stated that accused had taken her on the pretext that he would provide her a doll.
SC No.109/2013 State Vs. Rambir Singh
32.Since these witnesses are the material into facts of present case and victim had not stated anything that accused had committed any wrong act with her. Further, MLC also silent on the fact of sexual assault. In these circumstances, this court is satisfied with the arguments of Ld. counsel for accused. Hence, request Ld. APP for the State is declined and P.E. Closed. Thereafter, case was fixed for statement of accused u/s 313 Cr. P.C. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
33.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein accused had denied all circumstances and evidence put to him and claimed to be innocent and have been implicated falsely in the present case. Accused claimed that he and husband of complainant residing in the same locality and husband of complainant had taken a loan of Rs.10,000/ from him and on not repaying the loan amount, he falsely implicated him in the present case. Accused has not preferred to lead any D.E.
34.Thereafter, case was fixed for arguments.
ARGUMENTS:
35.Ld. Substitute APP for State argued that present accused has been prosecuted under section 363/342 IPC & section 8 of POCSO Act'2012.
36.Ld. APP for the State further argued that as per statement of victim, offence u/s 363 IPC has been proved against accused. Hence, he has prayed to convict the accused SC No.109/2013 State Vs. Rambir Singh under the section for which he has been charged.
37.On other hand Ld. defence counsel for accused submitted that victim in her deposition before the court, has not levelled any allegation against accused nor in her statement u/s 164 Cr.P.C. victim had levelled any allegation against the accused.
38.Ld. counsel for accused further submitted that PW1 Smt. Kamlesh, complainant is a hearsay witness. On these grounds, ld. counsel for accused has s prayed to acquit him from the charges.
PERUSAL OF RECROD/OPINION:
39.Argument heard. Record perused. On perusal of record, it is revealed that on 01.07.2013, SI Ishwari Prasad was returning to police station after attending a call from Shiv Vihar and when he reached near the gali No.15, Ambika Vihar, he saw a crowd there and he came to know that a person had brought a minor girl at his residence and was kissing her in the room. He reached at the spot and recorded the statement of complainant Smt. Kamlesh Ex.PW1/A and made endorsement thereon Ex.PW3/A and prepared rukka and handed over to HC Satish Kumar for getting the present case registered against accused Rambir Singh.
40.It is further revealed that I.O. Ishwari Prasad had prepared site plan Ex.PW3/B and I.O. had got the medically examined the victim vide MLC Ex.PW3/C. SC No.109/2013 State Vs. Rambir Singh
41.It is further revealed that accused was arrested vide arrest memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D.
42.It is further revealed that statement of victim u/s 164 Cr. P.C. Vide Ex.PW2/A was recorded by Ms. Harleen Singh, Ld. MM.
43.It is further revealed that accused in his statement u/s 313 Cr.P.C. claimed that he and husband of complainant residing in the same locality and husband of complainant had taken a loan of Rs.10,000/ from him and on not repaying the loan amount, he has falsely implicated him in the present case.
44.Before reaching at any conclusion let the relevant sections i.e. 363, 342 IPC and 8 of POCSO Act'2012 be reproduced, which are as under : Section 363 IPC: Punishment for kidnapping. "Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 342 IPC:
Punishment for wrongful confinement. Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
8 of POCSO Act'2012:
Punishment for sexual assault. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall be liable to fine.
45.From the perusal of record, it is revealed that present case was registered on the SC No.109/2013 State Vs. Rambir Singh complaint of Smt. Kamlesh, who is mother of victim and she has been examined as PW1. It has also come on record that victim was found from the custody of accused. From the testimony of PW1 Smt. Kamlesh, mother of victim it has come on record that a ice vendor had told her that he had seen one person namely Fauzi was taking away the victim and that ice vendor had taken them to the house of accused where PW1 saw that her daughter was sitting on a cot and the accused was also sitting on the same cot, half of bottle of daru (desi Sharab) was lying on the cot and accused was consuming the same and some other articles were also lying there.
46.Since the evidence of prosecutrix shows that she did not support to the case of prosecution and she has not deposed anything against the accused and she has not deposed any word against the accused on the fact of doing wrong act.
47.Further, as per testimony of victim, her father, brother and maternal uncle and some other public persons had come at the house of accused after about two hours which shows that victim remained in the house of accused for about two hours. If accused has any malafide intention, he was having sufficient time to do wrong act with the victim but he has not done so. Hence, charges under section 8 of POCSO Act is not proved against the accused beyond reasonable doubt. Since PW2 victim had not levelled any allegation that accused had confined her. Hence, charge for offence u/s 342 IPC is also not proved against accused.
48.From the testimony of PW1 Smt. Kamlesh, mother of victim and PW Victim, it has come on record that accused had taken the victim to his house on 01.07.2013 out of her lawful guardianship and date of birth certificate provided by parents of victim, SC No.109/2013 State Vs. Rambir Singh shows date of birth of victim as 02.02.2005 which shows that victim was below the age of 18 years on the day of incident.
49.Therefore, in light of the above discussed facts and circumstances of the case, case of prosecution does not inspire the confidence of this court to convict the accused for the offence u/s 342 IPC & section 8 of POCSO Act'2012. However, fact of taking the minor from the lawful guardianship has been proved. Hence, this court hold the accused Rambir Singh guilty for the offence u/s 363 IPC. As prosecution has been failed to prove its case beyond reasonable doubt against the accused for offence u/s 342 IPC & section 8 of POCSO Act. Hence, this court acquit accused Rambir Singh from the charges u/s 342 IPC & section 8 of POCSO Act'2012. PRONOUNCED IN THE OPEN COURT ON THIS 30.11.2013.
(RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI SC No.109/2013 State Vs. Rambir Singh IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 0I : NORTH EAST / KARKARDOOMA COURTS: DELHI.
FIR No. 385/2013State Vs. Rambir Singh, S/o. Sh. Bhuda Singh, R/o House No.A163, Gali No.2, Ambika Vihar, Delhi.
Police Station Karawal Nagar Under Section 363 IPC ORDER ON THE POINT OF SENTENCE 30.11.2013 Pre: Sh. Vinod Kumar, Ld. Substitute APP for the state. Convict is on bail.
Sh. Arun Sharma, Ld. counsel for convict Rambir Singh. Ld. APP for State submits that since the offence has been proved against the convict Rambir Singh under section 363 IPC. Ld. APP for the State further submits that he must be sentenced according to provisions of law to teach a lesson to such uncivilized person. On this ground, Ld. APP for the State has prayed for maximum sentence to the convict.
On other hand, Ld. counsel for convict submits that he is a very poor person and there is no previous criminal antecedents against him. Ld. counsel for convict further submits that he is facing trial since 2013 and he has been remained in JC for about 58 days and he has learnt a lesson that how to live in a civilized society. Ld. counsel for convict has requested for lenient view and requested to release the convict for the sentence period already undergone.
SC No.109/2013 State Vs. Rambir Singh Arguments heard. After taking into consideration the fact that the convict Rambir Singh has been facing trial since 2013 and he has been remained in JC for about 58 days. The ends of justice will meet if convict Rambir Singh is sentenced to period already undergone and fine of Rs.1000/ for offence u/s 363 IPC in default convict shall undergo S.I for one month. Fine paid. Accordingly, convict is released on period already undergone.
In terms of section 437 A Cr. P.C. convict is hereby directed to execute bail bond in sum of Rs.20,000/ with one surety in the like amount. Orders accordingly.
Copy of judgment and sentence be provided to convict free of cost. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 30.11.2013.
(RAMESH KUMAR - II) ASJ01/N.E.KKD COURTS/DELHI.
SC No.109/2013 State Vs. Rambir Singh