Delhi District Court
State vs Farman Akhtar on 20 February, 2024
DLNE010035312021
IN THE COURT OF MS. RICHA PARIHAR
ADDITIONAL SESSIONS JUDGE (SC-POCSO)-01
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
Session Case No. : 361/2021
State Vs : Farman Akhtar
FIR No. : 443/2021
Under /Section : 363/366/376(2)(n) IPC & Section 6 of POCSO
Act
Police Station : New Usmanpur
CNR No. : DLNE01 003531 2021
Date of Institution : 28.08.2021
Date of Judgment reserved on : 20.02.2024
Date of Judgment : 20.02.2024
Brief details of the case
A) Offence complained of
or proved : 366/363/376(2((n) IPC
& 6 POCSO Act
B) Name of the accused : Farman Akhtar,
S/o Bilal Akhtar
R/o H.No.D-18, Gali no.4,
Kabir Nagar, Gokulpuri, Delhi.
C) Plea of the accused : Pleaded not guilty
FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 1 of 13
D) Final order : Acquittal
E) Date of Order : 20.02.2024
JUDGMENT
1. On the accusation of kidnapping and committing rape / aggravated penetrative sexual assault repeatedly upon minor victim 'A' (identity withheld and hereinafter referred to as 'victim'), aged about 17 years, accused Farman Akhtar aged about 22 years (herein after referred to as 'accused') was sent up for trial for commission of offences under sections 363/366/376(2)
(n) of Indian Penal Code (IPC), 1860 and section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
2. Briefly stated the case of prosecution is that on 10.08.2021 at PS New Usmanpur, Sh. "A" father of victim/complainant (complete name withheld to protect the identity of the victim) registered a complaint regarding missing of her minor daughter victim "A" (aged 17 years, complete name withheld to protect the identity of the victim). In his complaint, father of victim stated that on 09.08.2021 at about 10:00 PM, his daughter victim "A" went away from home without telling anyone and could not be found, hence, he has expressed suspicion that some unknown person has enticed and kidnapped his victim daughter "A".
FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 2 of 13 Hence, initially, an FIR under Section 363 IPC was registered in present case (FIR no.0443 dated 10.08.2021 PS New Usmanpur). During investigation on 12.08.2021, victim came to the police station with her parents where she was counselled and sent for medical examination and section 376(2)(n) IPC and Section 6 of POCSO Act were added to the present FIR.
3. Upon completion of investigation, IO filed present charge- sheet in the Court on 11.10.2021 against accused Farman Akhtar for offence under sections 366/363/376(2)(n) IPC and Section 6 of POCSO Act and cognizance of offences was taken on the same date.
Charge
4. On 30.09.2022, charge for offences under Sections 363/366/376(2)(n) IPC and Section 6 of POCSO Act was framed against accused Farman Akhtar, to which he pleaded 'not guilty' and claimed trial.
Admitted documents:
5. During admission/denial of documents u/s 294 Cr.P.C, vide statement dated 14.03.2022, the accused admitted registration of FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 3 of 13 the FIR dated 10.08.2021 as Ex.P-1, Copy of DD no.0123A as Ex.P-2, MLC report no.62 dated 12.08.2021 of victim as Ex.P-3, MLC report no.18151 of accused as Ex.P-4 and date of birth certificate of victim as Ex.P-5.
Prosecution witnesses
6. Prosecution has examined a total of eight witnesses to prove its case.
i) Victim "A" aged about 18 years as PW1
ii) Smt. "R", mother of victim as PW2
iii) Sh. "A" father of victim as PW3
(iv) SI Mamta as PW4
(v) ASI Babu Lal as PW5
(vi) HC Sandeep as PW6
(vii) W/Ct. Rashmi as PW7
(viii) Sh. Sikandar Singh as PW8
Material witnesses
Victim 'A'
7. PW-1 is victim 'A', whose examination-in-chief recorded in Court is reproduced as follows :
"I was knowing accused Farman Akhtar for the last about one year prior to this incident. On 10.08.2021, I FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 4 of 13 my own freewill I went with the accused to Sarai Kale Khan on his scooty. From there, we went to the flat of the accused situated at Dilshad Garden, Delhi. From that place, I informed my father on telephonic. He came there and took me and accused Farman to the PS, new Usmanpur, Police took me to the hospital for my medical examination but nothing incriminating in my medical examination.
Once I came in the court and my statement is recorded (at this stage, a sealed envelope sealed with the seal of KJ, which is already on the file of this case is opened and the statement recorded u/s 164 Cr.P.C is taken out same is shown to the witness who identify her RTI at point A thereon, the same is Ex.PW1/A)."
8. Thereafter, Ld. Special PP for State sought permission to cross-examine the witness as she was resiling from her previous statement, which was allowed and said cross-examination is reproduced as follows:
"XXXXX by sh. Masood Ahmad, Ld. Special PP for the State.
It is correct that I have told to ld. MM in my statement recorded u/s 164 Cr.P.C that I along with my boyfriend Farman Akhtar went to Muradabad, UP on a scooty on 10.08.2021. It is correct that accused is my distance relative. It is correct that I had told to Ld. MM in my statement recorded u/s 164 Cr.P.C that in Muradabad, UP accused took one room on rent where we had stayed for about two days and during that period physical relations between us were made by the accused. Thereafter, accused received a telephone call FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 5 of 13 from his elder sister who asked the accused to come at her house along with me so that she may get solemnize our marriage and then, we both went to the house of Khala of accused which was situated at Dilshad Garden. It is correct that I along with my parents and police persons went to the place i.e., hotel where I along with accused were stayed and shown the said hotel to the police. It is incorrect to suggest that I had also shown the house of Khala of the accused which was situated at Dilshad Garden Delhi. (confronted with question A to A of statement Ex.PW1/PX1 where it is so recorded). It is incorrect to suggest that in respect of the fact that I had not shown the house of Khala of the accused which was situated at Dilshad Garden, Delhi.
At the stage, the accused is present before the screen and the witness is asked to identify him and the witness is correctly identified the accused as the same person who is involved in this case."
9. PW1/victim was cross-examined by Ld. Counsel for accused which is reproduced as under :
"Witness had also come with me in the court when my statement u/s 164 Cr.P.C was recorded. The police had tutored me to depose against the accused otherwise, I will be sent to jail. It is correct that I had deposed before the Ld. MM and the pressure of the police. It is correct that no physical relation were made between me and the accused. It is correct that due to some misunderstanding between me and my mother I had myself gone with the accused. Police had not obtained to my signature on my statement recorded by them."
10. Victim was re-examined by Ld. Spl. PP for state, which is reproduced as under:
FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 6 of 13 "It is correct that before my statement was recorded by the Ld. MM u/s 164 Cr.P.C I had not told the Ld. MM that I had been pressurized by the police to depose against the accused otherwise I will be sent to the jail."
11. PW2 i.e. mother of victim and PW3 i.e. father of victim have also turned hostile and have not supported the case of prosecution against accused. Further, they are not even the eye witnesses to the alleged incident.
Statement u/s 313 Cr.P.C.
12. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded wherein all the incriminating material appearing on record was put to him. Accused denied the allegations as false and fabricated and did not choose to lead any evidence in his defence.
13. I have heard the final arguments as advanced by Ld. Additional Public Prosecutor for State Sh. S.K.Dubey and by Sh. Rajesh Mittal, Ld. Counsel for accused and perused the record.
14. On behalf of accused, it is submitted by Ld. Counsel that FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 7 of 13 none of the prosecution witnesses including victim has supported the case of prosecution against accused. That the prosecution has failed to established the foundational facts regarding commission of crime to raise the presumption accused us 29 of POCSO Act and has failed to prove its case against accused beyond reasonable doubt, hence, accused should be acquitted.
15. On behalf of State, it is submitted by Ld. Addl. PP for State that victim has turned hostile during her testimony in the Court under the pressure of her family, however, she has supported the allegations of commission of offence against accused in her statement under Section 164 Cr.P.C.
Findings:
16. Section 29 of the POCSO Act, 2012 deals with the statutory presumption to be raised against a person accused of one of the certain offences under the Act. It provides that where a person is prosecuted for violating any of the provisions under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed the offence, unless the contrary is proved. The above presumption is an exception to the ordinary rule of presumption of innocence available to an accused in a FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 8 of 13 criminal trial. However, it is trite law that a negative fact cannot be proved. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the Prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of prudence would most probably draw an inference of innocence in his favor. Accused may achieve such an end by leading defence evidence or by discrediting Prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version.
17. In order to discharge its initial burden, prosecution was required to prove two facts :
(i) that the victim was less than 18 years of age at the relevant time and thus 'child' within the meaning of Section 2(d) of the POCSO Act ; and
(ii) that the offence in question was committed by the accused.
FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 9 of 13 Age of the Victim:
18. Accused has admitted under Section 294 Cr.P.C the school record of victim regarding her date of birth. As per the school record i.e Ex.P5, date of birth of victim is 15.02.2004. Thus, on 10.08.2021, age of victim was about 17 years 5 months and 26 days. Thus victim was minor at the time of alleged offence and is a 'child' within the meaning of Section 2 (d) of the POCSO Act.
Whether accused has committed the offence for which he is charged
19. It is settled law that the solitary testimony of a victim is sufficient for convicting the accused provided the testimony is unimpeachable and trustworthy. It should be reliable so as to establish that the accused had committed the offence beyond any reasonable doubt.
20. In present case entire prosecution case depends upon the sole testimony of PW-1/victim who is star witness of the prosecution. However, perusal of testimony of victim recorded in Court as PW1 shows that victim has not supported the case of prosecution against accused. Further vide MLC of victim which is Ex.P3, victim has refused for internal medical examination and thus, FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 10 of 13 there is no medical or forensic/scientific evidence on record regarding commission of rape upon victim. Father and mother of victim have also not supported the allegations against accused. Remaining witnesses examined by the prosecution are the formal witnesses of the investigation and have not seen the commission of the alleged incident. Even during the cross-examination of PW1 by Ld. Addl. PP for State, victim has not supported the allegations against accused and has stated that she had voluntarily gone with accused who is her boyfriend and distant relative. During her testimony in Court, victim has also denied that any physical relations were established between her and accused and she has stated that she levelled the allegations against accused in her statement under Section 164 Cr.P.C under the pressure of police.
21. PW2 is mother of victim and PW3 is father of victim and they have also not supported the allegations against accused. Even from the testimony of PW8 i.e. Manager of Royal Inn Hotel the allegations regarding commission of offence in present case are not proved as he has deposed only about presence of accused with one girl at his hotel on a relevant date. Rest of the witnesses are formal police witnesses in present case.
22. Therefore, the only relevant testimony before the Court is FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 11 of 13 the testimony of PW-1/victim. However, bare perusal of the deposition of PW-1/victim shows that this witness has not at all supported the prosecution case rather during her deposition she has categorically denied that accused ever committed any act of sexual assault upon her.
23. There is no other direct, circumstantial or forensic evidence in present case to establish commission of alleged offence by accused. Victim /PW-1 has failed to support the prosecution case despite being subjected to detailed cross examined by the Ld. Addl. PP for the State. The bare perusal of the testimony of victim/PW-1 shows that she has completely exonerated accused Farman Akhtar from all the alleged acts, therefore, the prosecution is not able to establish the foundational facts to attract the presumption under Section 29 of the POCSO Act. Hence, it is held that the prosecution is also not able to establish the commission of alleged offences by the accused Farman Akhtar and has also failed to prove its case against accused beyond reasonable doubt.
24. Thus, in the light of the above said discussion and findings, accused Farman Akhtar is hereby acquitted for the offences charged under Sections 363/366/376(2)(n) IPC, 1860 & Section 6 of POCSO Act, 2012 in present case.
FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 12 of 13 File be consigned to record room after due compliance as per rules. Digitally signed by RICHA RICHA PARIHAR Announced in open Court PARIHAR Date: 2024.02.20 16:18:12 +0530 on 20th February 2024 (RICHA PARIHAR) ASJ (SC-POCSO)-01 North East District Karkardooma Courts, 20.02.2024 It is certified that this Judgment contains 13 pages and Digitally signed by each page has been signed by undersigned. RICHA RICHA PARIHAR PARIHAR Date: 2024.02.20 16:18:21 +0530 (RICHA PARIHAR) ASJ (SC-POCSO)-01 North East District Karkardooma Courts, 20.02.2024 FIR No.443/2021 PS New Usmanpur State vs. Farman Akhtar Page No. 13 of 13