Delhi District Court
State vs . Waseem Ahmad on 8 August, 2017
1
In the court of Ashwani Kumar Sarpal, Addl. Sessions Judge
cum Presiding Officer of Special Court under POCSO Act,
(East District), Karkardooma Courts, Delhi.
FIR NO.185/14
PSNew Ashok Nagar
U/S363/328/376 IPC &
4 of POCSO Act
STATE VS. WASEEM AHMAD
(SC80/14)
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JUDGMENT: As per record, accused remained in custody from 103 2014 till 292014. The charge for offences under section 363, 328 and 376 IPC as well as section 4 of POCSO Act was framed against accused to which he pleaded not guilty. Even in his statement u/s 313 Cr.P.C., he described himself as an innocent person.
PROSECUTION ALLEGATIONS: A missing report was lodged by Smt. Ajay Pali (mother of the victim) in police station on 1822014 with the allegations that her daughter aged about 15½ years (whose identity is not disclosed herewith) left the house in the morning for school but did not return back. In the complaint, suspicion was raised on one boy namely Intzar for enticing and taking away the victim with him. On the basis of this complaint, FIR u/s 363 IPC was registered on same day at 6.55 p.m. The victim herself came back in her house on 2022014. Her parents 2 took her to police station where her statement under section 161 Cr.P.C. was recorded. Police produced the victim before counselor who also recorded her statement. According to victim, instead of going to school, she had gone to Rajghat with her friend Shalu and her boy friend Raj where she became late. Shalu asked the victim not to go to her house and instead go somewhere else as her missing complaint was already lodged with police. Victim then chosen to go to accused at Ganga Nagar. From Rajghat, she left for Anand Vihar railway station first where Salman friend of accused met who took her to New Delhi railway station where another friend met who gave Rs. 2000/ to her and made her to sit in a train to Ganga Nagar. On next morning she reached Ganga Nagar and accused took her to his factory. From her statement, it also transpired that accused gave intoxicated material to her and thereafter rape was committed upon her. Medical examination of the victim was got done in the hospital and she also gave alleged history of rape to the doctor. Her statement u/s 164 Cr.P.C. was recorded by MM concerned. Police went to Ganga Nagar along with the victim and arrested the accused on her identification and at her instance on 1032014. After completion of investigation, accused was charge sheeted but due to not pleading guilty by accused, trial started.
EVIDENCE LED: Prosecution in order to prove its case examined total 14 witnesses. PW1 Sh. Ram Niwas Sharma, teacher from Dallupura school proved admission register and birth record of the victim. PW2 HC Suraj Mal duty officer simply recorded formal FIR. PW3 Smt. Ajay Pali and PW6 Sh. Devanand are the parents of the victim. PW4 is the minor victim (whose identity is concealed herewith). PW7 Dr. Manoj Teotia and PW8 Dr. Rashi proved medical reports/MLC of the accused and victim respectively. PW9 HC Harender Singh, MHCM 3 sent sealed pullanda to FSL. PW10 Ct. Sunita and PW11 Ct. Virender Singh associated with the different IOs at some stage of investigation whereas PW5 SI Narender, PW12 SI Sunil Kumar and PW14 SI Suchitra Sharma are investigating officers of the case. PW 13 Ms. Vandana Jain, ACMM recorded statement of the victim under section 164 Cr.P.C.
STATEMENT OF ACCUSED U/S 313 CR.P.C.: Accused in his statement under section 313 Cr.P.C. totally denied the allegations of prosecution and alleged that he along with Aman Chopra and Jyoti Chopra was running garment manufacturing factory at Shakurbasti but they wrongfully captured that factory and thrown him out and also threatened to ruin his life. Jyoti Chopra is the daughter of Bua of victim and with her connivance, he has been falsely implicated in this case. However, accused did not opt to lead any evidence in defence.
REASONS FOR DECISION: I have heard Addl. PP for state and counsel for the accused and gone through the record. Following points arose during arguments;
(a) Dispute about age of the victim: Counsel for the accused raised dispute about the exact age of the victim and argued that she was aged about 20 years on the date of incident, so no offence under POCSO Act is attracted. PW1 is the teacher of the school where victim was studying on the date of incident. He proved the admission register of the school Ex. PW1/A which shows that victim was admitted in the school in 6th class and her date of birth as per record is 4111998. It 4 means that on the date of incident dated 1822014, victim was just 15 years and 3½ months old as per school record. However, this age proof of school cannot be considered as the record of the school in which victim was firstly got admitted is not proved by prosecution.
Victim PW4 stated in her cross examination that neither she knows her date of birth nor her mother knows about it. PW3 in her statement stated that victim is not her real daughter as she was found abandoned in the fields smeared with blood and was just born but it is also deposed that victim was found by her 16 years back, though exact date when she was recovered is not remembered. She also denied the suggestion given in cross examination that victim was found by her 20 years back. This version of PW3 cannot be disbelieved and it has to be held that she was near about 16 years of age at the time of incident. PW3 also stated that a Janam Patri of the victim was got prepared and she could produce the same in the court on next date but on behalf of the accused, no request was made to adjourn the cross examination of PW3 or to ask her to produce the same. Even no prayer was made on behalf of the accused during trial to get the bony age test of the victim done. This conduct of the accused also point out that he was not seriously disputing the age of the victim and plea taken that she was 20 years of age is baseless plea. IO during investigation had not seized any such Janam Patri nor PW3 had given the same to IO. On the other hand as per IO PW14, parents of the victim told her that there was no Janam Patri available so it could not be seized by her. In such circumstances, after believing the version of PW3, it is held that the victim being aged about 16 years at the time of incident comes within the definition of 'child' as given under section 2 (d) of POCSO Act and this Act becomes applicable in the present circumstances.
5(b) MLC of the victim has to be read along with her statement: Victim was medically examined by doctor PW8 on 2022014 and MLC prepared in this regard is Ex. PW8/A. This MLC shows that hymen of victim was found torn but there was no external and internal injury found on her body. This doctor also recorded history on the MLC as was given by the victim. PW8 specifically denied the suggestion given on behalf of the accused that this alleged history was recorded at the instance of the police. Similarly, PW10 also stated that victim herself disclosed the doctor the purpose for which she had come there. Thus, this MLC Ex. PW8/A is a duly proved document so the alleged history given in the same shall be taken into consideration and shall be read along with the statement of the victim recorded in court for corroboration or contradiction purposes.
(c) FSL/DNA test report not helping the prosecution: MLC of the victim Ex. PW8/A shows that some of her cloths, exhibits and samples were taken in possession by the IO. After arrest of the accused, he was sent to hospital for medical examination on 1132014 and his MLC Ex. PW7/A was prepared which is not disputed in any manner. This MLC of the accused also says that blood, semen and hair sample of the accused along with his underwear were seized and handed over to the police. During investigation, the exhibits of the victim as well as of the accused were sent to FSL for DNA test. Report of DNA Ex. PW14/B is perse admissible without any formal proof. However, this report is not favouring the prosecution in any manner because neither DNA nor any semen sample could be generated nor any comparison could be made. Thus, this report is useless document and does not prove anything against the accused and is not supporting the story of alleged rape.
6(d) Prosecution failed to explain why suspicion was raised on another boy Intzar: Complainant (mother of the victim) PW3 in her complaint given to police Ex. PW3/A upon which FIR was registered raised suspicion upon one boy Intzar for kidnapping and enticing away the victim. However, it is not disclosed why and on which basis, the suspicion was raised upon him in her FIR. It is not the case of the complainant that victim knew Intzar at any point of time or ever visited him or Intzar at any time allegedly met. Misbehave or harassed or followed the victim. PW3 even admitted in her statement that she did not know where Intzar was residing. IO PW14 also stated that no inquiry was made from Intzar despite suspicion raised in the FIR against him. In absence of any explanation given in this regard, the possibility of false implication of the accused and mentioning of fake person in the FIR having kidnapped the victim cannot be ruled out.
(e) Prosecution failed to examine material witnesses: Victim on the date of incident instead of going to school allegedly went to Rajghat along with her friend Shalu and her boy friend Raj. Shalu was also carrying mobile phone with her. Complainant PW3 who was having mobile number of this Shalu during search of the victim made a call to Shalu and asked about the whereabouts of victim but she did not disclose anything and apparently concealed the fact regarding presence of victim with her. PW3 also stated in her statement that she came to know subsequently that victim remained with Shalu and her boy friend for whole of the day at Rajghat and in the evening they made the victim to sit in an auto for going to Anand Vihar railway station. They had instigated and facilitated the victim for going to Ganga Nagar instead of sending her back to her house. As per victim, 7 Shalu even had informed her that accused was calling her to Ganga Nagar through call made on her phone. PW3 after coming to know about the role of Shalu informed the police about it. Victim PW4 stated that police had even made inquiries from Shalu in her presence. Even IO PW14 also admitted in her cross examination that she made inquiries from both Shalu and her boy friend Raj but police did not cite them as a witness in the case for reasons best known to it. Why Shalu and Raj were not made witness or coaccused in the case is not explained by the prosecution. The non examination of Shalu and her boy friend Raj by the prosecution amounts to withholding of the material witnesses from the court and its benefit goes to the accused.
As per victim PW4, before coming back to Delhi from Ganga Nagar she made a call to Monu at his mobile number 9560365495 from STD booth of Ganga Nagar. Monu had once met the victim in the hospital when her mother was admitted there and he had given his mobile number and thus known to her. Monu met the victim at Delhi railway station and brought her back to her house. This Monu is also not examined by the prosecution nor any CDR of his phone is collected to corroborate the fact that victim came back to Delhi from Ganga Nagar on 2022014 and before coming had made a call to Monu from STD booth of Ganga Nagar. Thus, the non examination of material witnesses by the prosecution created a serious unfilled gap in the prosecution story.
(f) Friends of the accused not produced as witness nor made an accused: Version of the victim is that she left Rajghat in the evening for Anand Vihar railway station where friend of the accused Salman met and he sent her to New Delhi railway station where one another 8 friend of the accused met who gave Rs. 2000/ to her and made her to board the train to Ganga Nagar. Thus, it is clear that the two friends of the accused facilitated and helped the victim to go to Ganga Nagar allegedly at the instance of the accused. Accused denied that none of his friend met the victim or boarded her on the train. Thus, the examination of those friends was necessary for the success of the case but those were withheld from the court despite the fact that IO PW14 admittedly had made inquiries from them. The role of these two friends of the accused may be of abettor also but police did not choose to charge sheeted them.
(g) The material call detail records (CDR) were not collected by the police: Victim had gone to Rajghat along with her friend Shalu who was having mobile phone with her. PW3 during search of the victim made a call to Shalu at her mobile phone but she did not tell anything. From this mobile phone of Shalu, victim also called to the accused in the evening at Ganga Nagar. The mobile phone record of the Shalu could have been a good link to establish that accused was contacted. However, no call detail record (CDR) is produced by the prosecution. Similarly, PW12 who partly investigated the matter stated that he had perused the call detail record of the accused and came to know about his location in Ganga Nagar and thereafter police party arrested the accused from there. However no such CDR of the accused showing his location at Ganga Nagar was produced on judicial record. This is the material withholding of the material evidence especially when accused totally denied having received any call from the victim or his location at Ganga Nagar because he is saying that he was called in the police station from Ganga Nagar and was arrested in the police station.
9(h) Manner and place of arrest of the accused is highly doubtful: Police story is that accused was arrested from Ganga Nagar on 103 2014 at the identification and instance of the victim. However, this arrest of the accused is highly doubtful. As per accused in his statement u/s 313 Cr.P.C., he himself went to police station on 113 2014 when he was called by the police through his wife from Ganga Nagar and all the documents were prepared in the police station and he was not arrested in Ganga Nagar. Following discrepancies leads to the inference that accused was not arrested in the manner as alleged by the police.
(i) As per examination in chief of victim PW4, police had taken her to Ganga Nagar and at her instance, the accused was arrested vide arrest memo Ex. PW4/B. However, in cross examination she stated that she kept on sitting in the vehicle of the police on the road and apparently did not go inside the building from where accused was arrested. She also did not know how many persons were present in the factory of the accused from where accused was arrested. PW6 father of the victim also confirmed that victim remained sitting in the police vehicle on the road. But police witnesses PW11 and 12 are saying that victim was present with them and at her pointing out the accused was arrested from second floor. Thus, arrest of the accused at the instance and her identification is not correct.
(ii) As per PW6 father of the victim, he along with the victim and police reached Ganga Nagar on 1032014 after leaving Delhi on 932014. On the other hand, PW11 and PW12 stated 10 that they had left Delhi on 832014 and reached Ganga Nagar on 932014.
(iii) PW6 stated that accused was arrested from the first floor of the building whereas police witnesses are saying that he was arrested from second floor.
(iv) Father of the victim PW6 is saying that victim herself had shown the place to the police where accused had taken her and committed rape but as per IO PW12, he had reached at the site on 1032014 on the basis of some secret information as victim was not knowing the place where she was taken and she also could not tell the address even on 932014.
(v) According to PW11, accused was brought bcak to Delhi on 1132014 after police party left Ganga Nagar on 1032014 at about 1010.30 a.m. It means that accused was arrested on 1032014 before 10 a.m. at Ganga Nagar however his arrest memo Ex. PW4/B shows that he was arrested on 1032014 at 4 p.m. Thus, the exact timing of arrest is also doubtful.
(vi) There were two more persons present in the room measuring 15 x 8 feet situated in the printing press as per PW11 from where the accused was arrested. There were number of shops situated adjacent to the printing press and public persons were also coming and going through that place but none of them was made a witness of the arrest and their signatures were not taken on arrest memo nor examined in the court. However, IO PW12 is not remembering anything in this regard whether the accused was alone in the room or there were other persons also or what was the size of the room etc.
(vii) IO PW12 is saying that the local police was taken into confidence before arresting the accused and in this regard before going at the spot of arrest, entries in the register of 11 local police were made and even after coming back from the room to local police station, the information of the arrest of the accused was given but no such entry of local police record is produced to show that accused was actually arrested from Ganga Nagar or local police was duly informed and taken into confidence before arresting the accused.
(viii) As per PW11 and PW12, they had gone to Ganga Nagar in a private car whereas as per PW6 father of the victim, they had gone in the police vehicle.
(ix) IO PW12 stated that he had prepared the site plan of place where rape was committed upon the victim at her instance but how it could be prepared when victim had not gone in the building and remained sitting in the police vehicle on the road has remained unexplained fact.
(i) Whether victim is reliable and trustworthy: Police got the statement of the victim Ex. PW4/A recorded under section 164 Cr.P.C. from the Magistrate and the same is duly proved by PW13 ACMM concerned, so it has to be read in evidence and can be taken into consideration. Similarly, MLC of the victim is also proved by the prosecution which is containing alleged history of the incident and that also becomes relevant piece of evidence being her earlier statement and is a material for the purpose of corroboration and contradiction of the victim. The charge sheet also is containing a statement of the victim which was given by her to the counselor as well as given to the police u/s 161 Cr.P.C. Since, these two statements are part and parcel of the charge sheet and were relied upon by the prosecution so are liable to be seen and taken into consideration. If all these statements of the victim are taken into consideration then it 12 clearly shows that victim is not a reliable witness and her different statements are containing different types of discrepancies, improvement and contradictions and big doubt exists regarding genuineness and correctness of her rape story. Following are some of the points which make the victim not worthy to be relied upon.
(A) As per the alleged history of incident given to doctor by the victim as described in the MLC, accused was known to her for the last one month and had told the victim that he would marry her, so she decided to run away with him. Statement given to the counselor also point out that she herself called the accused and voluntarily left for Ganga Nagar. It clearly leads to the inference that some love angle was also involved but no such reference is found in the statement given in court or in the statement under section 164 Cr.P.C.
(B) Victim had informed to the doctor that accused had given her water at Ganga Nagar and after consuming the same she became unconscious. However, in her statement given in the court this water was changed to cold drink mixed with liquor whereas in the statement given to counselor, victim allegedly became unconscious after taking food.
(C) Victim in her statement given in court stated that at Ganga Nagar she was given some drink and thereafter she became unconscious and gained consciousness on the next morning. Victim had reached Ganga Nagar at 4 a.m. in the morning. It means that from morning of 19122014 to morning of 2012 2014, victim remained unconscious, then how and on which basis, she is saying that accused committed rape upon her three times. During the cross examination of the Addl. PP, victim improved herself by saying that she came under 13 influence of the liquor and after commission of rape upon her three times, she became unconscious. Victim is thus taking two different contradictory stands.
(D) As per victim, accused had also made her video film while committing the rape but no such film was recovered by the police. Even no intoxicating material or any liquor was recovered from the accused which he allegedly mixed up with water or cold drink or the food, as the case may be that made the victim allegedly unconscious.
(E) Victim also stated to the doctor that when she gained consciousness, then accused was not there but while appearing in the court as PW3, she stated that accused was there and asked him that she wanted to go back to her house but accused gave her two slaps and told that her life has been ruined and what will she do after going back. Thereafter victim herself alone came to railway station and sat in a train for Delhi but the statement given to counselor point out that accused himself made her sit in the train to Delhi. (F) Victim was at Rajghat till evening i.e. by 7 p.m. Thereafter she went to Anand Vihar railway station and then to New Delhi railway station and after taking train in the night reached Ganga Nagar on next morning i.e. 1922014 at 4 a.m. However, victim in her cross examination stated that she had met the accused outside Delhi on 1822014. It could not have been possible if the above version of the victim is taken into consideration. Even if it is presumed to be correct that accused met her on 1822014, then victim might have left Delhi on that day in the morning hours to reach Ganga Nagar on the same day and in that situation her story deposed in 14 the court regarding leaving in the night for Ganga Nagar with the help of two friends of the accused cannot be relied upon. (G) As per victim, she was brought back from New Delhi railway station by Monu to her house but as per PW6 she came back alone.
(H) Victim had called the accused from mobile phone of Shalu when she was there at Rajghat as per statement given in court but her statement u/s 161 Cr.P.C. and statement given to counselor says that she left the Rajghat in an auto and at Anand Vihar railway station made a call to the accused from STD booth.
(I) There is also contradiction in the statement of victim, which of the friend of the accused had given her Rs. 2000/ whether Salman who met her at Anand Vihar railway station or second friend who met her at New Delhi railway station. Similarly, there is also two different version of the victim whether she herself purchased the train ticket for going to Ganga Nagar or it was brought by one friend of the accused and given to her.
Since, victim PW4 herself firstly had gone to Rajghat from her house with Shalu or then to Ganga Nagar so the question of kidnapping her by the accused does not arise and offence under section 363 IPC is not attracted. Similarly, in absence of any recovery of any intoxicated material from the accused no offence u/s 328 IPC is made out. The charges for these two offences are not proved. Due to various discrepancies in the statement of the victim as mentioned above, the commission of offence of rape under section 376 IPC or penetrative sexual assault punishable under section 4 of POCSO Act also becomes highly doubtful.
15(j) Other discrepancies and important contradictions in the statement of witnesses: During arguments, counsel for the accused stated that no train was going to Ganga Nagar from New Delhi railway station at the relevant time and all the trains were going from Sarai Rohilla railway station. IO had not made any inquiry to confirm this fact or to ascertain the name of the train in which victim boarded and whether it was going from New Delhi railway station or not. On the other hand version of IO is that victim had boarded the train from Nizamudin railway station which further creates doubt about the story of the victim regarding catching the train from New Delhi railway station.
PW14 IO says that victim deboarded the train somewhere in Haryana and from there she reached ISBT through bus and from the bus stand, Monu took her and brought to her house. This fact is totally contradictory from the version of the victim who is saying that she was picked up from the railway station. Monu who could tell specifically in this regard has not been examined. The explanation of the IO that she did not record the statement of Monu as he had told that he would not come to the court itself was not a sufficient ground not to make him witness. On the other hand, this fact can point out that some wrong twist had been given to actual real story. This fact also raises serious doubt about the veracity of the victim.
As per complainant PW3, she had searched the victim before lodging missing complaint and even gone to her school, made inquiries from her friends and even asked from Shalu by calling her on her mobile phone but it is very strange that she did not tell the name of any of the friends of the victim to the first IO PW5 when he started search of the victim after registration of the case.
16PW6 is the father of the victim but he is giving some different story. According to him, the victim went to school on 33 2014 but did not return back by the scheduled time. However, she came back her own alone on next day. In cross examination done by the Addl. PP, this witness specifically denied the fact that her daughter had gone missing on 1822014. Though the date of 332014 as given by this witness may be wrong due to confusion because she went missing on 1822014 but his version that she came back on next day in the evening is not correct because the victim came back after two days of her missing as per police version. Thus, the possibility of the victim not going to Ganga Nagar cannot be ruled out.
As per PW6, victim had informed him that accused had taken her to Ganga Nagar but this fact is not correct because victim herself went to Ganga Nagar and the accused allegedly had met her on the Ganga Nagar railway station.
As per IO PW14, she had made inquiries from both the friends of the accused including Salman but neither they were made witness nor accused despite the fact that they met the victim at Anand Vihar and New Delhi railway stations respectively and facilitated her to reach Ganga Nagar and their role may be near to abetting the alleged offence. No explanation is given for their non examination which could fill up the gaps in the story to reach at a conclusion whether accused had any role in pursuing or helping the victim to reach Ganga Nagar because accused denied sending of any of his friends at railway stations to meet victim. Thus, it was necessary to establish by the prosecution that two friends of the accused helped the victim to reach Ganga Nagar. Prosecution has left important loopholes in its case due to which accused becomes entitled to get benefit of doubt.
17(k) Defence version is plausible: PW3 admitted in her cross examination that Smt. Rajenderi Devi her Nanad (Bua of the victim) wanted that marriage of her daughter takes place with the accused. PW3 also admitted that Jyoti daughter of Smt. Rajenderi Devi was having joint business of export of garments at Shakur Basti. PW4 victim also stated that Jyoti is her cousin and her husband's name is Aman Chopra.
Accused in his statement u/s 313 Cr.P.C. stated that he was also the cosharer of the business run by Jyoti Chopra and Aman Chopra and they had thrown him out from the said business. Though, accused has not led any evidence to show that he was having any such share or partnership in the business but above mentioned facts and circumstances somehow point out that false implication of the accused may be possible due to some business dispute.
In view of the above discussions, I am of the opinion that prosecution has failed to prove the case beyond doubt and the statement of the victim is not corroborating with FSL result and her statement is not reliable. Victim is not a trustworthy witness. Thus, by giving benefit of doubt, the accused is acquitted of charges. His bail bond cancelled and surety discharged. However, accused is directed to furnish a personal bond of Rs. 20,000/ with one surety of like amount under section 437A Cr.P.C. which will remain valid for a period of six months.
Digitally signed by ASHWANI ASHWANI KUMAR SARPAL
Location: Karkardooma Courts,
KUMAR SARPAL Delhi
Date: 2017.08.08 11:18:49 +0530
Dated882017. (Ashwani Kumar Sarpal)
Addl. Sessions Judge1
Judge, Special Court, POCSO