Delhi District Court
Sc No. 58949/16 State vs . Sanjay on 2 November, 2017
SC No. 58949/16 State Vs. Sanjay
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 58949/16)
Unique Identification No. 02404R0159552016
FIR No. 119/16
Police Station Adarsh Nagar
Under Section 376/354A/506 IPC
& 12 POCSO Act
State V/s Sanjay
S/o Surender Singh
R/o H.No. G446,
Jahangir Puri, Delhi.
......Accused
Date of institution of case 02.04.2016
Date of arguments 02.11.2017
Judgment Pronounced on 02.11.2017
Decision Acquitted
J U D G M E N T
1.The accused Sanjay is facing trial in the present case on allegations of having committed aggravated penetrative sexual assault / rape upon the victim C (identity withheld), aged about 10 years, and also Judgment : FIR No. 119/16 page 1 of 26 SC No. 58949/16 State Vs. Sanjay having sexually assaulted her and threatened her with life.
2. The facts in brief, which are borne out from the record are that in the year 2012, the victim C was residing in H Block, Jahangir Puri, Delhi with her family members, her father was running a shop / Rehdi of cooking and selling Pakodas (snacks), and accused Sanjay was also working on the said shop / Rehdi of the father of the victim as a helper, and the victim used to address him as Chacha (Uncle), as he used to visit their house frequently. At that time, the victim C was studying in fourth class. One day, in the afternoon, when the victim was alone at her house, accused entered the house of the victim, bolted the door, took off the panty of the victim and committed penetrative sexual assault upon her by inserting his finger and penis in her urinary part. The victim started weeping but the accused threatened her with life, in case she disclosed the incident to anyone, and due to fear, the victim did not disclose about the said incident to anyone.
3. Again on 27.02.2016 at about 8 PM, when the victim was playing outside her house, the accused, who was standing in the same gali, near a van, made obscene gestures towards the victim, on which she rushed into her house and narrated the entire incident to her grandmother, who in turn informed the father of the victim, who took the victim to police station on 29.02.2016 at about 7.30 PM.
4. The complaint of the victim was reduced into writing vide DD No. 37 A, and the victim was taken to BJRM Hospital where she was medically examined vide MLC no. 112269, and the father of the victim Judgment : FIR No. 119/16 page 2 of 26 SC No. 58949/16 State Vs. Sanjay initially refused for her internal medical examination but later agreed for the same, but since the alleged incident of penetrative sexual assault was of about four years back, no exhibits of the victim were collected. The victim was got counselled and after her counselling, her statement was recorded, on the basis of which the instant case was registered u/s 376/506 IPC & u/s 6 POCSO Act. On the pointing out of the victim, accused Sanjay was arrested from his house vide appropriate arrest memo and personal search memo. On 01.03.2016, the accused Sanjay was taken to RML Hospital, where his potency test was conducted vide MLC no. E44139, whereafter accused was produced from the court concerned, from where he was sent to JC. On 04.03.2016, victim C was produced before the concerned MM to get her statement u/s 164 CrPC recorded. On an appropriate application moved by the IO, Ld. MM recorded the statement of the victim C u/s 164 CrPC, wherein she supporting the prosecution case, and narrated the entire incident. The age proof of the victim was collected, statements of the witnesses were recorded, and after completion of investigation, the chargesheet was filed in the court.
5. On appearance in the court, the accused was supplied with the copies, and after hearing the counsel for the accused and Ld. Addl. P.P. for the State, since prima facie case was made out, the accused was charged for the offence u/s 6 POCSO Act and in the alternative u/s 376 (2)(i) IPC, and for the offence u/s 354A/506(II) IPC and u/s 8 POCSO Act on 22.04.2016 by the Ld. Predecessor of this court, to which he pleaded not guilty and claimed trial. Subsequently, vide order dated 02.11.2017, the charge was amended because as per the allegations, the offence Judgment : FIR No. 119/16 page 3 of 26 SC No. 58949/16 State Vs. Sanjay which was committed, was covered under two heads simultaneously and not alternatively, and the accused was charged for the offence u/s 6 POCSO and u/s 376 (2)(i) IPC, besides for the offence u/s 354A/506(II) IPC and u/s 8 POCSO Act, to which he pleaded not guilty. Ld. Addl. P.P. for the State stated that after the amendment of the charge, no other witness is to be examined. Similarly, Ld. Counsel for the accused stated that after the amendment of the charge, no witness is required to be cross examined afresh, nor any modification in his statement u/s 313 CrPC is required, nor any defence witness is to be examined.
6. To substantiate its case, the prosecution examined eleven witnesses in all, out of which PW 4, PW 5, PW 6, PW 7 and PW 10 are formal witnesses, PW 8, PW 9 and PW 11 are witnesses of investigation, while the PW 1, PW 2 and PW 3 are the material witnesses, being the complainant / victim, her grandmother and her father respectively.
FORMAL WITNESSES
7. Sh. Satish Kumar Goel, Principal, Nigam Pratibha Vidyalaya, Adarsh NagarI, Delhi entered the witness box as PW 4 and brought the Admission / Withdrawal register maintained in the school and deposed that as per the school record, student C was admitted in 1 st class on 13.07.2009 vide admission no. 8495 and her date of birth is 03.09.2003, and the copy of the relevant page of the admission / withdrawal register containing the entry regarding the admission of the victim / student C, was proved on record as Ex. PW 4/A. Copy of the admission form filled up by the father of child was brought on record as Ex. PW4/B, the copy of Judgment : FIR No. 119/16 page 4 of 26 SC No. 58949/16 State Vs. Sanjay the birth certificate issued by the MCD, which was given by the parents of the student at the time of her admission is Ex. PW 4/C, and the certificate issued by the Principal of the said school to the effect that the date of birth of the victim / student C is 03.09.2003, is Ex. PW 4/D.
8. Ms. Kadambari Awasthi, Ld. MM entered the witness box as PW 5 and deposed that on 04.03.2016, while posted as Metropolitan Magistrate in Rohini Courts, on an application moved by the IO before her, she recorded the statement of the victim C u/s 164 Cr.P.C. and identified her signature at point A on the statement u/s 164 Cr.P.C. of the victim already exhibited as Ex. PW 1/D. Vide her order Ex. PW 5/D, she also ordered for supply of a copy of the statement of the victim C u/s 164 Cr.P.C. to the IO.
9. Dr. Swatantra Rao, SR, Department of Urology, RML entered the witness box as PW 6 and deposed that on 01.03.2016, he examined accused Sanjay and conducted his potency test vide MLC No. E/44139/16 Ex. PW6/A, and opined that there was nothing to suggest that the patient was incapable of performing sexual intercourse.
10. Dr. Mukta Saxena, SR Gynae, BJRM Hospital entered the witness box as PW 7 and deposed that on 29.02.2016, she examined the patient C, aged about 12 years vide MLC no. 112269 Ex. PW 7/A. She further deposed that the patient refused for her internal medical examination.
11. In her crossexamination by the Ld. Counsel for the accused, Judgment : FIR No. 119/16 page 5 of 26 SC No. 58949/16 State Vs. Sanjay PW7 Dr. Mukta Saxena deposed that the Hymen of patient was found intact and no external injury was noticed on her person.
12. Sh. Radhey Shyam S/o Sh. Munshi Lal entered the witness box as PW 10 and deposed that in the year 2011, father of the victim was residing in his house at Jahangir Puri, at the ground floor, alongwith his two daughters and two sons. He further deposed that the father of the victim was running a Pakora Rehdi at that time.
MATERIAL WITNESSES
13. The prosecution, to substantiate its case, examined the victim C as PW 1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim / child to give rational answers, on being satisfied, the statement of the victim was recorded, which is being reproduced herein below wherein she deposed as under :
"My father is a ERickshaw driver. Earlier my father used to sell breadpakora. Accused Sanjay (present in the Court, correctly identified through wooden partition) was working with my father when my father used to sell bread pakora. He used to visit our house. One day, when I was in 4th Standard, at about 23 pm, when I was alone at my house. Accused came inside my house and bolted the door from inside. He made me to lie on the bed and committed wrong act with me. He touched my breast and Judgment : FIR No. 119/16 page 6 of 26 SC No. 58949/16 State Vs. Sanjay my urinating part. He inserted his finger and urinating part in my urinating part. He threatened me not to disclose the incident to anybody otherwise he will kill my father. I got scared and did not inform anybody about the incident.
Thereafter, few months back on one Saturday in the night time, I was playing outside my house in the gali. Accused was standing near a wrecked van. Accused made obscene gestures towards me by touching his chest and urinating part. I got scared and rushed into my house. I had informed at my School and after coming back to my house I narrated the whole incident to me grandmother. Police officials came at our residence.
Police recorded my statement. At this stage, the complaint bearing the signatures of witness is shown to her. Witness identifies her signatures at point A on the complaint. The complaint is now Ex. PW1/A. I was got medically examined and I have showed the place of incident to IO. Accused was arrested in my presence.
The arrest memo of the accused is bearing my signatures at point A and same is Ex. PW1/B and personal search memo of accused is bearing my signatures at point A and same is Ex. PW1/C. My statement was also recorded before Ld. MM. At this stage, an envelope is opened sealed with the seal of KA and a statement U/s 164 Cr.P.C. is taken out.
Judgment : FIR No. 119/16 page 7 of 26
SC No. 58949/16 State Vs. Sanjay
Witness has been shown the statement and she identifies her thumb impressions at point A and the same is Ex. PW1/D. At this stage, Ld. Addl. PP seeks permission of the Court to put some leading questions.
Heard. Allowed.
I do not remember the year in which I was sexually assaulted by the accused. I do not remember whether it was 2012, however, I was in fourth standard at that time. I cannot say if the date when accused made obscene gestures towards me was 27.02.2016 as I am unable to recollect due to lapse of time.
14. In her crossexamination by the Ld. Counsel for the accused, the victim / PW 1 deposed as under :
"In year 2012, I was staying with my father and three other siblings. My sister is 4 years elder to me. Only once the accused had committed such an act with me. It was a summer month. My two younger brothers were at home. We were residing in a one room house at the time of incident. Vol. When accused came inside my room, he sent my brother outside in the ground. Today I do not remember that in which class my elder sister was studying at the time of incident. My sister was studying in my School and our School timings were upto 12:30 pm. We were residing in a residential colony.
Judgment : FIR No. 119/16 page 8 of 26
SC No. 58949/16 State Vs. Sanjay
Accused had worked with my father only for few
days after the previous incident. Accused was not residing in our vicinity. Accused was regular visitor to our house even after the incident. In my knowledge there was no dispute in our family. My grandmother came to our house and stayed with us after 34 days prior to the second incident. My father and grandmother have not tutored me to depose against the accused."
15. Mrs. L (grandmother of the victim) entered the witness box as PW2 and deposed that on the next day of her arrival at home, on being acquitted and released from jail after about five years, her granddaughter / victim C told her that accused had come to their house, and after removing her clothes, committed rape upon her by inserting his urinating part into her urinating part. She further deposed that again she saw the accused near their house but when she called the accused, he fled away from there. However, she was unable to identify the accused in the court due to low vision.
16. In her crossexamination by the Ld. Counsel for the accused, PW2 deposed that she had come in the house only one day prior to incident from Judicial Custody, wherein she was lodged in some dowry case. She further deposed that the police did not record her statement but only inquired from her. She knew the accused prior to this incident. She further deposed that on the next day of her coming back from Jail, accused had come outside their house and the victim told her that Judgment : FIR No. 119/16 page 9 of 26 SC No. 58949/16 State Vs. Sanjay accused had come there, but she herself had not seen the accused on the date of incident.
17. Mr. SR (father of the victim) entered the witness box as PW 3 and deposed that he has four children and his wife expired in the year 2010. Accused was earlier working with him in his shop of cooking and selling snacks (Bread Pakora & Kachori) and also used to reside with them in their house, after the death of his (PW3's) wife. He further deposed that one day police visited him and on the asking of the police officials, he took the police officials to the house of the accused, from where accused was arrested and later his daughter stated to him that accused had committed wrong act with her and that accused came to their house in his absence and was doing obscene gestures towards her.
18. In his crossexamination on behalf of the accused, PW 3 deposed that the statement of her daughter was not recorded in his presence, as he was sitting at some distance from her. He further deposed that accused was not permanently residing with them, however, he used to come there and occasionally used to stay for some nights. He admitted it to be correct that prior to coming of police at his house, his daughter had never complained regarding misbehaviour by accused. He further deposed that firstly the police narrated the incident to him and then her daughter. He further deposed that none of his children had ever complained about the accused prior to the incident. His mother was in custody since 2010 and she was released in February, 2016. She denied the suggestion that her daughter never told him about the commission of any wrong act upon her by the accused.
Judgment : FIR No. 119/16 page 10 of 26
SC No. 58949/16 State Vs. Sanjay
WITNESSES OF INVESTIGATION
19. HC Jashvini, No. 454/NW, PS Adarsh Nagar entered the witness box as PW 8 and deposed that on 29.02.2016, while being posted at PS Adarsh Nagar, he joined the investigation of this case alongwith IO W/SI Sarita and took the victim to BJRM Hospital for her medical examination.
20. ASI Dev Dutt, No. 40/NW, PS Adarsh Nagar entered the witness box as PW 9 and deposed that on 29.02.2016, while posted as Duty Officer at PS Adarsh Nagar, at about 7.15 PM, on a written complaint Ex. PW9/A regarding molestation by accused Sanjay, he recorded DD No. 37 A Ex. PW 9/B. He further deposed that on the same day, at about 11.10 PM, on receipt of a rukka from Ct. Dharmender, sent by W/SI Sarita, he got the instant case FIR registered which is Ex. PW9/C and made an endorsement on the rukka, which is Ex. PW9/D and also issued certificate u/s 65 B Evidence Act, which is Ex. PW9/E.
21. SI Sarita, No. D 5257 entered the witness box as PW 11 and deposed that on 29.02.2016, on receipt of instructions from ACP PS Model Town, she reached at PS Adarsh Nagar and there she met the victim, her father and HC Jaswani. She took the victim to BJRM Hospital for her medical examination, and also called the NGO officials. After counselling of the victim, she recorded the statement of the victim already Ex. PW1/A, and on the basis of the same, she prepared the Tehrir Ex. PW11/A and handed over the same to Ct. Dharmender for registration of the case. She also prepared the site plan Ex. PW11/B. She arrested the Judgment : FIR No. 119/16 page 11 of 26 SC No. 58949/16 State Vs. Sanjay accused vide arrest memo Ex. PW 11/B (inadvertently again mentioned as Ex. PW 11/B) and personal search memo Ex. PW11/C. She further stated that the accused led them to place on incidents and she prepared the pointing out memos Ex. PW11/D and Ex. PW11/E. She further deposed that she got the statement of the victim recorded u/s 164 CrPC.
22. In her crossexamination by the Ld. Counsel for the accused, PW 11 IO SI Sarita deposed that wife of the accused was present in the house of the accused, when they reached there and that victim and her father were discharged from investigation from the house of the accused after his arrest.
23. After close of PE, the statement of the accused was recorded u/s 313 CrPC wherein he denied the prosecution case in its entirety, and claimed his innocence. He further stated that on the date of incident, and he has been falsely implicated in this case by the father of the victim, who had not given his salary amounting to Rs. 3000/ despite his demands and due to this reason, they were not on talking terms. It is stated by the accused that only to avoid payment of his salary by the victim's father, he has been falsely implicated in this case. However, he preferred not to lead any defence evidence.
24. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Ms. Ritu Agagrwal, counsel for the accused. Ld. Addl. PP for State has contended that the victim is an innocent child of 10 years of age, who has supported the prosecution case on all material particulars and has Judgment : FIR No. 119/16 page 12 of 26 SC No. 58949/16 State Vs. Sanjay deposed emphatically and in detail about the penetrative sexual assault which she was subjected to, at the hands of the accused, as well as the untoward sexual gestures, which the accused made in the wake of which, the FIR came to be registered against the accused. It is also contended that at the time of weighing of evidence, which has come on record, it needs to be kept in mind that the child who was about 12 years of age at the time of her deposition in the court, was of very tender years of age i.e. 8 years at the time of penetrative sexual assault upon her by the accused. The victim being of such tender years, would obviously have been scared when the accused criminally intimidated her and this coupled with the trauma and suffering which has come her way at the instance of the accused, did not allow her to disclose the incident to her father or any other family member at the relevant time i.e. four years back but when she saw the accused again, making gestures with sexual connotations and pointing towards the lower part of his body, the victim narrated not just the second episode but also the first one, to her grand mother, who was earlier not present, and her mother already having expired. It is also stated that the contradiction in the testimony as well as the previous statement of the victim do not go to the root of the matter and that the victim's solitary cogent testimony is sufficient to base the conviction of the accused. It is prayed that the accused be convicted as the prosecution case has been proved, as per the standard of proof required.
25. Per Contra, Ld. Defence Counsel has stated that the incident of alleged penetrative sexual assault is reported to be four years prior to the lodging of the FIR and there is no worthwhile explanation brought forth to Judgment : FIR No. 119/16 page 13 of 26 SC No. 58949/16 State Vs. Sanjay explain the delay in lodging of the FIR. It is the case of the prosecution that after that alleged incident of penetrative sexual assault in the year 2012, the victim had narrated the incident to her teacher, but there is no investigation on this aspect nor has the teacher been produced as a witness in the instant case. Further more, it is contended that the victim (PW1) does not come across a reliable witness due to her different versions, which had come across in her complaint, in her statement u/s 164 CrPC and her deposition in the court and therefore she cannot be relied upon as a truthful witness. It is also pointed out that there are several contractions and rather the version of grandmother and father of the victim (PW2 and PW 3 respectively) are quite contrary to each other, which makes them unreliable witnesses. Even the witnesses of investigation have not conducted the proper investigation and even the accused was not arrested in the manner shown, which is indicative of the falsity of the prosecution case. It is contended that the accused has been falsely implicated by the victim at the instance of her father, who wanted to avoid the payment of arrears of the salary of the accused, due to which he got the accused falsely implicated in this case. It is prayed that the accused be acquitted.
26. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law.
Age of the victim
27. To ascertain the age of the victim child, the prosecution has relied upon the certificate given by the Principal of the school of the victim, who Judgment : FIR No. 119/16 page 14 of 26 SC No. 58949/16 State Vs. Sanjay himself entered the witness box as PW 4, bringing on record the admission register maintained in the school, as per which the child C / victim was admitted in 1st class on 13.07.2009 vide admission no. 8495 and the date of birth of the child was mentioned as 03.09.2003. The witness proved the relevant part of this admission register as Ex. PW4/A, and also brought on record the admission form filled by the father of the child as Ex. PW4/B as well as the copy of the birth certificate issued by the MCD and submitted by the parents of the student showing date of birth of the child to be 03.09.2003 as Ex. PW4/C and also certificate given by said Principal as regards the date of birth of the child is Ex. PW4/D. As per the said documentary evidence, which has not been refuted on behalf of the accused, on the date of first alleged incident of penetrative sexual assault, four years prior to the lodging of the FIR, somewhere in the year 2012, the victim was aged about 89 year of age, while in the year 2016, at the time of second alleged offence committed by the accused on 27.02.2016, the victim was 12 years of age. As such, on the date of two alleged incidents, the victim was aged about 89 years and 12 years respectively, and hence she is a "Child" within the meaning given under the POCSO Act.
Medical and forensic Evidence
28. The medical evidence in the instant case came in the form of MLC of the victim prepared in BJRM Hospital on 29.02.2016 i.e. on the date of FIR itself, and was proved by PW 7 Dr. Mukta Saxena, Senior Resident as Ex. PW 7/A. Noteworthy in the MLC, is the fact that victim as well as her family members gave their consent for internal medical examination of the victim, but since the alleged penetrative sexual assault was Judgment : FIR No. 119/16 page 15 of 26 SC No. 58949/16 State Vs. Sanjay committed about four years prior to the date of reporting, no medical evidence in respect of the said penetrative sexual assault could obviously have been brought forth by the prosecution. Nevertheless, the only point on which, the prosecution laid thrust upon, was that the victim was produced in the hospital by her father and the version which was given by the father of the victim to the doctor concerned, was about sexual physical assault about four years back. It is noteworthy that the doctor concerned has categorically mentioned that while no fresh injuries were visible on the body of the victim at the time of her medical examination, her Hymen was found intact. Since no samples or exhibits of the victim were collected, there is no question of any forensic reports or forensic evidence coming on record.
29. The accused was also got medically examined in RML Hospital and his MLC bearing no. 44139/16 was proved as Ex. PW6/A, wherein it was specifically mentioned that there was nothing to suggest that the patient / accused was incapable of performing sexual intercourse.
Testimony of the material witnesses.
30. The accused has been charged for five distinct offences, out of which the charge under the 1st, 2nd and 4th Head relate to the offence allegedly committed about four years prior to the lodging of the FIR i.e. presumably in the year 2012, while the offences under 3 rd and 5th Head are in relation to the offences, which were allegedly committed on 27.02.2016 at about 8 PM in front of the house of the victim C. Thus the testimony of the material witnesses needs to be scrutinized as regards its Judgment : FIR No. 119/16 page 16 of 26 SC No. 58949/16 State Vs. Sanjay lucidity, truthfulness and consistency, in two parts in respect of the two incidents.
31. The case of the prosecution, which was supported by the victim C while deposing as PW 1, was that four years prior to the lodging of the FIR, the accused Sanjay, who was working with her father at his Rehdi of selling Pakodas, had come to visit their house, at about 23 PM, when she was alone in her house and the accused bolted the door from inside, made the victim lie on the bed, touched her breast, her urinary part and inserted his urinary part in her urinary part and threatened her not to disclose the incident to anyone else he would kill her father, due to which the victim became scared and did not inform anyone.
32. In her statement u/s 164 Cr.P.C., which was recorded by the Ld. MM on 04.03.2016, and has been proved on record as Ex. PW 1/D, it is a very different and contrary version of the victim, which has come to the fore. She stated that on the day of incident, she was alone in the house, while her father had gone out and that the accused (referred to as Sanju Chacha) had come their come and had assured that he would bring something to eat for her and thereafter he forcibly made her lie on the bed, and did "GandaGanda" act and touched her on her breast as well as on her lower side, whereafter she told the accused that she had stomach ache and she went to the toilet and did not come out till her father returned. On comparison of the testimony of the victim and her statement u/s 164 CrPC Ex. PW 1/D and her foremost complaint Ex. PW1/A, it is apparent that there are material differences and contradictions. While in her complaint, which was lodged on 29.02.2016, Judgment : FIR No. 119/16 page 17 of 26 SC No. 58949/16 State Vs. Sanjay she had stated that the accused had bolted the door, removed her panty and inserted his finger and thereafter inserted his urinary part in her urinary part, but surprisingly four days later i.e. 04.03.2016 when her statement u/s 164 Cr.P.C. was recorded, she did not state anything about the insertion of finger or urinary part by the accused into her urinary part. Rather, a new version that she churned out before the Ld. MM is that she had a stomach ache and went to toilet, not coming out till her father returned. But three months later on 10.06.2016, when her testimony was recorded in the court, the details of penetrative sexual assault were deposed by her. Owing to the tender age of the witness, no suggestions in respect of contradictions in her testimony were allowed to be put by the Ld. Predecessor but these contradictions in the various statements of the victim as well as in the testimony of the victim go to the root of the matter, which makes her come across as a witness with multiple versions, creating a herculean task for the court, to assess the truthfulness of the victim. Such a topsy turvy statement of the witness taking somersault time and again, takes away the creditability of the witness, making it imperative for the court to look beyond the testimony of so many words of the witness to assess the truth.
33. Likewise, in respect of the second incident dated 27.02.2016, in her complaint Ex. PW1/A, the victim's version is that at about 8 PM, she was playing outside her house in the gali, when she saw the accused standing near a van, looking at her and making vulgar gestures towards her, due to which she went inside her house and that she immediately informed about the incident to her grandmother, who in turn informed her father. Again in her statement u/s 164 Ex. PW 1/D, she elaborated and Judgment : FIR No. 119/16 page 18 of 26 SC No. 58949/16 State Vs. Sanjay stated that accused was making vulgar gestures, touching himself on his lower parts and had also touched her. Similarly in her testimony as PW1, her version was that the accused made obscene gestures towards her by touching his chest and urinary part, due to which she got scared and rushed to her house. Again no suggestions were allowed to put to the witness, during her cross examination, and it is left to the court to assess the creditability of the witness in view of such major contradictions in her various statements, which were made by her at different points of time, in the instant case.
34. The alleged penetrative sexual assault upon the victim was committed sometime in 2012, when the child was about 8 years of age. In her crossexamination as PW 1, the witness / victim has testified that in the year 2012, she was staying with her father and three siblings and her sister is four years elder than her and that her two younger brothers were at home at the relevant time and that they were residing in one room house at the time of incident, but volunteered that when the accused came inside their room, she sent the victim's brother outside. She has also stated that her sister was also studying in the same school as the victim and their school timings were till 12.30 pm, and they were residing in a residential colony. The question, which arises is, is it possible for a man to commit forcible penetrative sexual assault upon a child aged about 8 years in a residential colony, in the summer months, in a one room house of the victim, when her other two siblings were also at home. The victim has not elaborated about the wherebouts of her elder sister and even it has been testified that the accused sent one of her younger brother outside the house, as per her testimony itself, second brother of Judgment : FIR No. 119/16 page 19 of 26 SC No. 58949/16 State Vs. Sanjay the victim remained in the room itself. Whenever any untoward incident happens with a child, or even any kind of quarrel takes place with a child or in the presence of a child, where one of the family members starts shouting in high tones, the child becomes withdrawn and scared and behaves abnormally because of the incident, which has taken place. The victim has testified that the accused committed penetrative sexual assault upon her and threatened her not to disclose about the incident to anyone but it is hard to believe or rather jarring that even after such a forceful penetrative sexual assault upon the child, she did not cry on the top of her voice in pain, or even if one of the young brother of the victim was present in the room, even he did not start wailing, as would have been the natural reaction to such an assault by the victim as well as her brother, if such an incident had actually happened.
35. The victim has testified that the accused threatened her not to disclose about the incident to anyone and she got scared, due to which she did not inform about the incident to anyone. However, whether the child informs about such a horrific incident or not, but if such a horrific assault and that too penetrative sexual assault was inflicted upon her by the accused, the child would have been in turmoil and would have been devastated, and though she might not have stated anything in words, her mental and physical traumatic state would have told the entire story to her family members. Moreover, the child's mother had expired and in such a case, human psychology is such that younger children / siblings tend to look upon their elder sister, who was four years elder to the victim, as a motherly figure, and would have confided in her the traumatic experience. However, as per the victim, she did not disclose about the incident to Judgment : FIR No. 119/16 page 20 of 26 SC No. 58949/16 State Vs. Sanjay anyone. Surprisingly, this fact of the testimony of the victim is brutally contradicted by her grandmother, who was examined as PW 2, and who stated that the victim had told her about the accused having committed rape upon her by inserting his urinary part in her urinary part and that the victim had not disclosed the incident to her father first, but rather disclosed the incident to her teachers. This version of the testimony of the victim's grandmother did not fall from the mouth of the victim herself and therefore does not inspire confidence. Why no investigation in this respect was conducted by the Investigating Agency is not explained and therefore apparently PW 2 has not deposed the truth.
36. Further more, if the testimony of the father of the victim as PW 3 is scrutinized, it is to the effect that accused was working with him as his helper and used to reside with them, after the death of his wife and in the year 2013 he shifted to a rented accommodation in Adarsh Nagar. Thereafter, in his crossexamination, he testified that he had closed his Rehdi in the year 2014 and the accused also stopped working with him but the accused continued to visit him and spend some nights with them in their house. As per the victim, she alongwith her siblings and father were living in a one room house and presumably even when they shifted to a rented accommodation in Adarsh Nagar, number of rooms in the rented accommodation remained the same. It is unbelievable that a person, who had allegedly committed penetrative sexual assault upon the victim in the year 2012, continued to work as a helper for the victim's father, reside in their house and even after they shifted to another accommodation in 2013, he continued to come and spend some nights in their house, but the child's reaction was neither abnormal nor noticeable Judgment : FIR No. 119/16 page 21 of 26 SC No. 58949/16 State Vs. Sanjay for any of the family members of the victim. Victims of such brutal acts take years together to regain their natural self and attitude. It is unbelievable that after the accused had so committed the alleged offence of rape / penetrative sexual assault upon the victim in the year 2012, when she was only 8 years of age, she did not ever react in any untoward manner, when the accused came to sleep or reside with them in their one room accommodation. Infact, had such an incident ever taken place, and the accused had been the culprit, he himself would never had come in the vicinity of the victim so soon, in the fear that he would be caught as it is difficult for an offender to escape from his own fears of being caught and being taken to task.
37. PW 3, father of the victim has admitted that none of his children had ever complained about the accused prior to the incident. The contractions in the different statements and shifting from one stand to another by the victim, are reflective of the agitated mind of the victim, she forgetting what she had stated in her previous statements, and thus stating inconsistently about the incident at different points of time in the instant case. If something horrific such as penetrative sexual assault happens with a child, and it is not the coloured version which is being tried to be projected, such kind of major contractions, in the testimony of victim do not arise. The testimony of the victim, therefore, does not inspire confidence.
38. The MLC of the victim Ex. PW7/A categorically finds an observation of the doctor concerned i.e. Dr. Mukta Saxena that the Hymen of the witness was found intact. Rupturing of the Hymen is not an Judgment : FIR No. 119/16 page 22 of 26 SC No. 58949/16 State Vs. Sanjay essential ingredient to indicate the happening or nonhappening of rape / penetrative sexual assault, but at the same time, if such an assault happens to be made with a child of tender years, by an adult male, such forceful thrust usually brings about the rupturing of the Hymen and bleeding from the vagina of the child, which in this case, conspicuously, did not happen. Therefore, the medical evidence, which has been brought to the fore, by the prosecution is indicative of a penetrative sexual assault not having taken place on the body of the victim child.
39. As regards the second alleged incident, in her complaint the victim has not described the kind of vulgar gestures, which were allegedly being made by the accused, though she elaborated in her statement u/s 164 Cr.P.C. and made further improvement in her testimony as PW 1. The grandmother of the victim as PW2 in her examination in chief stated that she had seen the accused near her house and it was when the victim told her about the incident. She has stated that she saw the accused standing there but about four months later to the incident, she did not identify the accused with surety. In her crossexamination, she admitted that she had not seen the accused on the date of incident i.e. 27.02.2016, contradicting her statement given in her examination in chief, because she had been released from jail the next day of the alleged incident. Therefore, PW 2 herself does not come across a very reliable witness, her testimony being full of contractions.
40. The behaviour of PW 3 i.e. father of the victim is again strange and quite contradictory to what happens in usual practice. As per the victim and her grandmother, they disclosed to him about the incident on Judgment : FIR No. 119/16 page 23 of 26 SC No. 58949/16 State Vs. Sanjay 29.02.2106, whereafter he called the police. There is again no explanation that if the grandmother of the victim had come to know about the incident on the next day of the incident i.e. 28.02.2016, why was the matter not informed to the father of the victim and why it was thereafter deemed fit, that this information be given to PW 3. Surprisingly, in his examination in chief, PW 3 is totally silent about his daughter i.e. victim C or his mother having narrated any incident to him directly at any point of time, but rather the police had come to his house and asked him about the accused and that he had taken the police officials to the house of the accused, from where he was apprehended and that it was in the presence of the police that his daughter informed him about the alleged incident.
41. On the other hand, the IO of the case who entered the witness box as PW 11, in her examination in chief stated that she accompanied with other police officials went to the house of the accused and found him there and arrested him at the instance of the victim. The fact regarding the father of the victim accompanying them to the house of the accused and getting him arrested, is conspicuously missing.
42. Further more, it is also surprising that the child told about the alleged offence of lesser magnitude of obscene gestures made by the accused, to her grandmother on the next day, but did not disclose anything about the graver offence of penetrative sexual assault to any of her family members. It is the own admitted version of PW 2 that she had been released after five years of imprisonment, and therefore in the growing years of the victim child i.e. from the time when she was aged Judgment : FIR No. 119/16 page 24 of 26 SC No. 58949/16 State Vs. Sanjay approximately 7 years, her grandmother was in jail. The kind of affinity and bonding between the victim and her grandmother could never have been there due to this long absence of the grandmother from the sight and mind of the child, who should have been more closer to her sister and father. Therefore, weighing on the anvil of truth, the material witnesses are found wanting, their testimony being full of inconsistencies, which do not appeal to the mind and which take away their creditability, making them totally unreliable witnesses.
Defence of the accused.
43. The defence of the accused is that he has been falsely implicated by the father of the victim, to evade payment of dues of his salary amounting to Rs. 3,000/. In the wake of the testimony of the prosecution witnesses, the defence of the accused appears to be more probable, considering that the accused continued to visit the house of the victim, till the time her father was selling Bread Pakoras, he continued to work with him and even after the father of the victim closed down his said work and even they shifted to Adarsh Nagar, the accused continued not only to visit their house at Adarsh Nagar but even spent some nights in their house.
44. In view of my discussions above, it emerges that ;
(i)on the day of first alleged incident, the victim was about 8 years of age and on the date of second alleged incident, the victim was aged about 12 years;
(ii)the victim as well as other prosecution witnesses are not reliable and trustworthy.
(iii) the defence of the accused appears to be more plausible that Judgment : FIR No. 119/16 page 25 of 26 SC No. 58949/16 State Vs. Sanjay he has been falsely implicated in this case by the father of the victim, to evade payment of dues of his salary amounting to Rs. 3,000/
(iv) the prosecution has failed to bring home the guilt of accused, beyond reasonable doubt.
45. Conclusion : From the aforesaid discussions, allegations against accused are not proved. Accordingly, accused Sanjay stands acquitted for the offences, he has been charged with. Bail bond of the accused stands cancelled and his surety is discharged. Documents of the surety, if any retained on record, be released to him, on appropriate application being moved by him.
Accused is directed to furnish a personal bond in the sum of Rs.10000/ under provisions of Section 437A CrPC, with one surety in the like amount.
Since victim has not suffered any injury or loss, either physical, mental or psychological, she has not been granted any compensation as per provisions of section 33 (8) POCSO Act.
File be consigned to record room.
Announced in the open court
today i.e. on 02.11.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 02.11.2017
Judgment : FIR No. 119/16 page 26 of 26