Delhi District Court
State vs Mr.Naman Arora. -:: Page 1 Of 13 ::- on 7 May, 2018
-:: 1 ::-
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
State
versus
Mr.Naman Arora
Son of Mr.Anil Arora,
Resident of house number 10/51,
Subhash Nagar, Delhi.
First Information Report Number : 176/2013.
Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code
and under sections 7/11/12 of the POCSO Act.
Date of filing of the charge sheet : 25.09.2013.
Arguments concluded on : 07.05.2018.
Date of judgment : 07.05.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused on bail with counsel, Mr.Hansraj Singh.
PW-Prosecutrix, whose particulars are mentioned at serial
no. 2 in the list of prosecution witnesses.
PW- Mother of the prosecutrix, whose name is mentioned at
serial number 3 in the list of prosecution witnesses, and she
is mother of the prosecutrix whose name is mentioned at
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013.
Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code
and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 1 of 13 ::-
-:: 2 ::-
serial no. 1 in the list of prosecution witness and she is the
maternal aunt of the prosecutrix whose particulars are
mentioned at serial no.2 in the list of prosecution witnesses.
Mr.Surender Singh, counsel for both the prosecutrix and
the mother of the prosecutrix whose particulars are
mentioned at serial number 1 in the list of prosecution
witnesses.
**********************************************************
JUDGMENT
1. Mr. Naman Arora, the accused, has been charge sheeted by Police Station Kirti Nagar for the offences under sections 354A/354 B/509/34 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 7/11/12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr. Naman Arora has been prosecuted on the allegations that he along with Mr.A.L. and Mr.U.A. (their names and particulars are mentioned in the file and are withheld to protect their identities as they are Juveniles In Conflict With Law/JCLs. They are hereinafter addressed as JCLs.) have made physical contact involving unwelcome sexual overtures with both the prosecutrix; he along with Mr.A.L. and Mr.U.A. (JCLs), with sexual intent, had touched the body and breast of both the prosecutrix; and he along with Mr.A.L. and Mr.U.A. (JCLs), with sexual intent, had used obscene gestures to both the prosecutrix.
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 2 of 13 ::-
-:: 3 ::-
3. The name, age and particulars of both the prosecutrix are mentioned in the file at serial numbers 1 and 2 in the list of prosecution witnesses and are withheld to protect their identities and both the prosecutrix are in hereinafter addressed as Ms.R and Ms. Y respectively, fictitious identities given to them. Fictitious identity of Ms.S.K. is given to the mother of the prosecutrix Ms.R whose name and particulars are mentioned at serial no. 3 in the list of prosecution witnesses. She the maternal aunt/mausi of the second prosecutrix i.e. Ms.Y whose particulars are mentioned at serial no. 2 in the list of prosecution witnesses. The name and particulars of Ms.S.K. are also withheld in order to protect the identities of both the prosecutrix i.e Ms. R and Ms. Y.
4. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 25.09.2013.
5. After hearing arguments, charge for offences under sections 354 A of the IPC read with section 34 of the IPC, under section 8 of the POCSO Act read with section 34 of the IPC and under section 12 of the POCSO Act read with section 34 of the IPC was framed against accused Mr.Naman Arora vide order dated 05.04.2014 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 3 of 13 ::-
-:: 4 ::-
6. In order to prove its case, the prosecution has examined as many as (04) witnesses i.e. HC Hari Ram, who has recorded the formal FIR of case, as PW1; the prosecutrix Ms.R, as PW2; Ms.Y, the second prosecutrix, who is the cousin sister of the prosecutrix Ms.R, as PW3; and Ms.S.K, mother of the prosecutrix Ms.R, as PW4.
7. The evidence of the prosecutrix Ms.R as PW2 and Ms. Y as PW3 have been recorded in camera. Ms.S.K, who is the mother of the prosecutrix (Ms.R) and maternal aunt/mausi of the prosecutrix (Ms.Y) has also been examined in camera, as PW4. PW1- is the duty officer, who had recorded the formal FIR of the case.
8. The prosecutrix Ms.R has been examined as PW2 and has deposed that "On 20.05.2013, at about 08:00 pm, I was standing outside my house with my mother and cousin. Four boys were standing and they were leering at me and my cousin. They also came near to us, touched my back and hand of my cousin sister. They also passed vulgar comments to us. I had seen those boys earlier also as they used to roam in the area. I lodged the complaint." The prosecutrix Ms.R as PW2 had seen accused Mr.Naman Arora, who was behind curtain and after removal of the curtain, and she had failed to identify the accused.
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 4 of 13 ::-
-:: 5 ::-
9. As the prosecutrix Ms.R (PW2) 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 denied the suggestion that "It is wrong to suggest that I had disclosed the name of the Naman in my complaint Ex.PW2/A. It is wrong to suggest that I had told to the learned Metropolitan Magistrate the all those four accused used to come at the said shop. It is wrong to suggest that I had told to the learned Metropolitan Magistrate that names of the accused were revealed to me from the said shopkeeper. Vol I had come know about the name of the accused from the inhabitants of my colony. It is wrong to suggest that I am deliberately not identifying accused or that I have been won over by the accused. "
10.In her cross examination on behalf of the accused, the prosecutrix Ms.R (PW2) has deposed that "It is correct that accused present in the Court did not touch my breast."
11.The prosecutrix Ms.Y (PW3) has also not deposed anything incriminating against the accused. She has deposed that "I cannot identify the culprits due to lapse of time. At the time of incident we thought that the culprits were Mr.A.L (name withheld), Naman and other associates however later we came to know that Mr.A.L (name withheld) and Naman did not molest us. They were other New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 5 of 13 ::-
-:: 6 ::-
persons"
12.The prosecutrix Ms.Y as PW3 had seen accused Mr.Naman Arora, through the screen, and she had identified the accused as Mr.Naman Arora. She has further deposed that, "He had not committed any offence with me or my cousin sister. I know the accused Naman Arora as he visits the area where my house is located".
13.As prosecutrix Ms.Y (PW3) 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 denied the suggestion that "It is wrong to suggest that I had named the accused Naman Arora in my statement Ex.PW3/A as the accused Naman Arora and his other associates had committed offence against me, my cousin sister and my cousin brother. It is wrong to suggest that now the matter is settled between me and the accused and for this reason I am deliberately deposing that the accused Naman Arora had not committed any offence. It is wrong to suggest that I am deposing falsely."
14.In her cross examination on behalf of the accused, she has admitted that "It is correct that the accused Naman Arora is innocent and he has not committed any offence against me, my cousin Ms. R New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 6 of 13 ::-
-:: 7 ::-
and my cousin brother. It is correct that I do not have any grievance against the accused Naman Arora."
15. Ms.S.K (PW4), who is the mother of the prosecutrix Ms. R and maternal aunt of the prosecutrix Ms.Y has also not deposed anything incriminating against the accused. She was declared hostile by the prosecution but nothing material for the prosecution came forth in her lengthy cross examination. She was not cross examined on behalf of accused despite being opportunity given.
16.The prosecution witnesses i.e. both the prosecutrix Ms.R as PW2, Ms.Y, as (PW3) and Ms.SK, (PW4) who is mother of the prosecutrix Ms.R and maternal aunt of the prosecutrix Ms.Y, have not deposed an iota of evidence of accused Mr.Naman Arora that he committed the offences of physical contact involving unwelcome sexual overtures with the prosecutrix, of touching the body and breast of both the prosecutrix and of making obscene gestures.
17.In the circumstances, as the prosecutrix Ms.R (PW2) and Ms. Y (PW3) 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 as well as Ms.S.K (PW4) (mother of the prosecutrix Ms.R) has not deposed anything incriminating against him, the prosecution evidence is closed, New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 7 of 13 ::-
-:: 8 ::-
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 both the prosecutrix Ms.R (PW2) and Ms.Y (PW3) and Ms.SK (PW4) (mother of the prosecutrix Ms.R and maternal aunt of prosecutrix Ms.Y) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case. PW1 had only recorded the formal FIR of the case and his evidence is not sufficient for convicting the accused as the same is not incriminating.
18. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Naman Arora is dispensed with as there is nothing incriminating against him as both the prosecutrix Ms.R (PW2) and Ms.Y (PW3) are hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and Ms.S.K (PW4) (mother of the prosecutrix Ms.R) has also not deposed anything incriminating against the accused.
19.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. New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 8 of 13 ::-
-:: 9 ::-
20.In the light of the aforesaid nature of deposition of both the prosecutrix Ms.R (PW2), Ms.Y (PW3) and Ms. S.K (PW4)(mother of the prosecutrix Ms.R and maternal aunt of prosecutrix Ms.Y), 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 both 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."
21.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
22.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 New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 9 of 13 ::-
-:: 10 ::-
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.
23.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).
24.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 anything incriminating against accused Mr.Naman Arora. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 10 of 13 ::-
-:: 11 ::-
25.Consequently, no inference can be drawn that the accused Mr.Naman Arora is guilty of the charged offences under section 354 A of the IPC read with section 34 of the IPC, under section 8 of the POCSO Act read with section 34 of the IPC and under section 12 of the POCSO Act read with section 34 of the IPC.
26.There is no material on record to show that accused Naman Arora along with Mr.A.L. and Mr.U.A. (their names and particulars are mentioned in the file and are withheld to protect their identities as they are Juveniles In Conflict With Law/JCLs) have made physical contact involving unwelcome sexual overtures with the prosecutrix; accused along with Mr.A.L. and Mr.U.A (JCLs) with sexual intent had touched the body and breast of the prosecutrix; and accused along with Mr.A.L. and Mr.U.A (JCLs) with sexual intent had used obscene gestures to the prosecutrix.
27.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.Naman Arora of physical contact involving unwelcome sexual overtures with the prosecutrix, of touching the body and breast of the prosecutrix and with sexual intent had used obscene gestures. The witnesses have not deposed an iota of evidence that accused Mr. Naman Arora has committed any of the charged New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 11 of 13 ::-
-:: 12 ::-
offences.
28.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.Naman Arora for the offences under section 354 A of the IPC read with section 34 of the IPC, under section 8 of the POCSO Act read with section 34 of the IPC and under section 12 of the POCSO Act read with section 34 of the IPC.
29.Consequently, accused Mr.Naman Arora is hereby acquitted of the charges for the offences of physical contact involving unwelcome sexual overtures with both the prosecutrix, of touching the body and breast of both the prosecutrix and of making obscene gestures punishable under section 354 A of the IPC read with section 34 of the IPC, under section 8 of the POCSO Act read with section 34 of the IPC and under section 12 of the POCSO Act read with section 34 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
30.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
31.Case property be confiscated and be destroyed after expiry of period New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 12 of 13 ::-
-:: 13 ::-
of limitation of appeal.
32.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
33.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
NIVEDITA ANIL Digitally signed by NIVEDITA ANIL SHARMA SHARMA Date: 2018.05.09 15:29:11 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 07th day of May, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 57211/2016.
Old Sessions Case Number : 245/2013.
First Information Report Number : 176/2013. Police Station Kirti Nagar.
Under sections 354 A/354B/509/34 of the Indian Penal Code and under sections 7/11/12 of the POCSO Act.
State versus Mr.Naman Arora. -:: Page 13 of 13 ::-