Delhi District Court
Fir No. 193/2013 : State vs Vinod Verma: Ps Shalimar Bagh on 13 March, 2018
FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh
IN THE COURT OF AMIT KUMAR : ADDL. SESSIONS JUDGE:
(NORTHWEST)01 : SPECIAL COURT : POCSO, ROHINI DISTRICT
COURTS: DELHI
(Sessions Case No.85/14)
State Vs. Vinod Verma
FIR No. : 193/2013
U/s : 363/366/376 IPC & 04 POCSO Act
P.S. : Shalimar Bagh
State Vs. Vinod Verma
S/o Sh. Putti Lal Verma
R/o Village Awa Goja,
PO Hyderabad, P.S. Aasiwan,
District Unnao, U.P.
Date of institution of case : 05.04.2014
Date of arguments : 13.03.2018
Date of pronouncement of judgment : 13.03.2018
J U D G M E N T :
1.Brief facts of the prosecution case are that on 25.05.2013, the complainant who is the father of the victim came to PS and made his statement to the effect that his daughter R, aged about 16 years and eight Page 1 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh months is missing since 24.05.2013 at 10.30p.m. and he apprehends that one Vinod Kumar has kidnapped his daughter. On his statement, present FIR U/s 363 IPC was registered. On 07.01.2014, the complainant produced the victim in the PS and she was medically examined and got counseled through NGO. The accused was arrested at the instance of the mother of the victim and he was also medically examined. The statement of the vicitm u/s 164 Cr.P.C. was recorded on 08.01.2014 and after completion of investigation, present chargesheet was filed. Copy supplied.
2. Charges for commission of offence punishable u/s 363/366 IPC and punishable u/s 6 read with 5(i) of the POCSO Act or in the alternate 376(2)
(n) IPC and punishable u/s 12 POCSO Act read with 11(iv) or in the alternate 354(D) IPC were framed against the accused to which accused pleaded not guilty and claimed trial.
3. Prosecution, to prove its case, has examined as many as 13 witnesses.
Page 2 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh PW1 is the victim whose testimony is reproduced herein for the sake of brevity: "I am residing at the abovementioned address with my family comprising of my parents and my two brothers.
On 24.07.2013, again said 24.07.2012, I was returning from my tuition class at Haiderpur at 10:30 PM. I had got late in returning back from my class on that day as I usually used to return back home by 10:15 to 10:20 PM. My tuition class used to be from 8:00 PM to 10:00 PM. Accused Vinod came from behind and put something on my nose and took me with him in a car. I do not know the make of the car or its number as I had become unconscious when accused put something on my nose. Accused took me to his village in Unnao where he did zabardasti with me. Court Ques. : What do you mean by 'zabardasti' ?
Ans. Usne mere sath galat sambandh banaye.
Accused also made me sign on a blank paper. I do not know what he did with the said paper. He also made me sign on a paper on which 'note chhapa hua tha'. Later on I came to know he had prepared documents of Page 3 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh marriage between me and him on said papers. On the same day, again said, after two days, I managed to escape and came to Rai Barelley to the maternal house of my mami (aunt). I stayed at the maternal house of my mami for about 1 - 1 ½ months and thereafter I came to Delhi. I and my parents did not initiate any action for fear of defamation, however, thereafter accused again started troubling me by visiting my house. He also used to obstruct my way whenever I went outside my house. I as well as my mama (maternal uncle) tried to make accused understand to refrain from such behaviour but he paid no heed. Thereafter I told everything to my mother, who took me to PS where I made a complaint to the police.
Accused used to harass me prior to the date when he had taken me with him. At that time also accused was made to understand but he did not mend his ways.
I had not come to Court earlier for my statement.
At this stage, learned Additional PP for the State seeks permission to ask a leading question from this witness regarding the date of the incident and recording of the statement of the victim u/s. 164 CrPc Heard. Allowed.). Page 4 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh It is correct that the incident of my kidnapping had taken place on 24.05.2013. It is correct that I had come to Court earlier and had given my statement u/s. 164 CrPC.
At this stage, the photocopy of the statement u/s. 164 CrPC is shown to the witness from the judicial file and she identifies her signatures at point "A" thereupon. The photocopy of the statement is now exhibited as Ex.PW 1/A. Accused Vinod is present in the Court today (witness has correctly identified the accused through the design in the wooden partition). XXXXXX By Sh. K.M. Dwivedi, learned counsel for accused.
I had told the police in my statement u/s. 161 CrPC and in my statement u/s. 164 CrPC to learned MM that accused had taken me in a car to his village. Confronted with statement Mark "X" u/s. 161 CrPC and statement Ex.PW1/A u/s. 164 CrPC where it is not so recorded.
I had told in my statement u/s. 164 CrPC to learned MM that accused had put something on my nose because of which I became unconscious. Page 5 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh Confronted with statement Ex.PW1/A u/s. 164 CrPC where it is not so recorded.
I had told in my statement u/s. 164 CrPC to learned MM that accused had taken my signatures on a paper on which a note was printed (stamp paper). Confronted with statement Ex.PW1/A u/s. 164 CrPC where it is not so recorded.
I had told the police in my statement u/s. 161 CrPC and in my statement u/s. 164 CrPC to learned MM that I had gone to Rai Barrelley to the maternal home of my mami and that I had stayed there for 1 - 1 ½ months after which I came to Delhi. Confronted with statement Mark "X" u/s. 161 CrPC and statement Ex.PW1/A u/s. 164 CrPC where it is not so recorded.
I had told the police in my statement u/s. 161 CrPC and in my statement u/s. 164 CrPC to learned MM that accused started harassing me after I came to Delhi and that I and mama (maternal uncle) tried to make him understand and that accused did not pay any heed and that I told my mother everything. Confronted with statement Mark "X" u/s. 161 CrPC and Page 6 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh statement Ex.PW1/A u/s. 164 CrPC where it is not so recorded.
My elder brother is three years older than me and his date of birth is 20.07.1994. Accused made me sit in the car near the liquor kiosk (daru ka Theka). Vol. The road on which Theka is situated, remains isolated. I regained consciousness in the morning on the next day i.e. 25 th at about 10:00 - 10:30 AM and at that time I was in the house of the accused at Unnao. I had not seen accused approaching me at Haiderpur. Vol. He had come from behind.
I knew accused since one year prior to 24.05.2013. I was not having friendship with the accused. I knew accused as earlier I was residing with my grandmother in gali No.7 and accused was also residing in the said gali. Later on when I came to stay with my parents in gali No.9, accused started visiting our gali. I left house of accused on 27 th at night. I do not remember the time when I left the house of the accused but I reached the maternal home of my mami at about 1:30 midnight. I reached Unnao bus stop from the house of accused, which was at a distance of about 4 to 5 kms., on foot. There was a market near Unnao Bus Stop. Except for one or two shops, Page 7 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh the market was closed when I reached there. I do not know whether the said bus stop was of government buses or private buses. I do not know the time when I took bus from Unnao bus stand. When I reached Rai Barelley I gave a call at the maternal house of my mami, after which her brother came and took me to their house on motorcycle. The parents and brother of my mami met me at the maternal home of my mami. I had given call to my elder mami at her mobile phone No.9212986111. I had narrated the entire incident to my elder mami and she told the same to her brother. I could speak to my parents from the maternal home of my mami. I told about the incident to my parents also at that time. My parents did not come to the maternal home of my mami even after they were told about the incident. Vol. My mama came as I had stayed with my mama, mami, most of my life. I left maternal home of my mami on 29.07.2013 at night and we reached Delhi on 30.07.2013. Whenever IO called my father, he used to go to PS. I cannot say after how many days of my arrival to my home, IO called my father to PS. I first time met my parents after the incident at the house of my Page 8 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh maami, i.e House No.C12, Street No.9, Shalimar Village, Delhi99, on 30.06.2013. Thereafter, I started residing at my maami's house. I came back to my parent's house after appearing in my 12 th class examination in April' 2014, from the house of my maamamaami. I did not disclose about the incident to my parents on 30.06.2013. Vol. My maama maami had already disclosed about the incident to them. There was no one in the room except accused Vinod Verma during my stay from 25.05.2013 to 27.05.2013. I did not come out of the room during this period. I was confined only in one room, therefore, I cannot tell if there were other rooms constructed in the house or not. There were houses at or around that house. Vol. But, those were at some distance from the said house (the witness has explained the distance to be the total length of dias, i.e around 6 metres which she has noticed from the window). I did not raise alarm during the aforesaid period of confinement. None of the relatives or neighbourers of accused came to meet him in the said house during that period. I was made to sign on blank papers by the accused on 27.05.2013 during the period of confinement in the room. I came to know about those Page 9 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh papers to be pertaining to of my marriage with the accused, when I came back to Delhi and I was called in the PS. I was informed my WSI Sumedha about those papers, but those papers were not shown to me. I cannot tell the exact date and time when accused to stalk and annoy me. I did not make complaint of the aforesaid conduct of accused to the police, however, I had told about it to my family members. My tuition centre was situated at Haiderpur. Accused after putting some intoxicating on my nose, took me from a lonely road situated near liquor shop and garage at Haiderpur from where the boundary of Shalimar starts. It is wrong to suggest that the accused had neither put anything on my nose nor took me with him at any point of time. I cannot say if the distance between house of accused and Unnao is 40 KM, however, they are at quite considerable distance. It is correct that accused is neighbour of my Naani where I was residing. It is wrong to suggest that I was never taken to the house of accused by him, it is, however correct that I myself had never gone to his house. It is wrong to suggest that accused had never committed penetrative sexual assault upon me at any point of time. It is wrong to suggest that I have falsely implicated Page 10 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh the accused in the present case with connivance of my parents because I want to marry with him, but after his refusal, he has been falsely implicated in the present case. It is wrong to suggest that I was major at the time of alleged incident. It is wrong to suggest that accused never made me sign on any paper at any point of time. It is wrong to suggest that the accused has neither harassed me nor used to obstruct my way nor started troubling at any point of time. It is wrong to suggest that I have deposed falsely."
PW2 is the Duty Officer who has proved on record FIR as EX.PW2/A and endorsement on rukka as Ex.PW2/B. There is no cross examination of this witness.
PW3 is the MHC(M) with whom samples were deposited on 07.01.2014. There is no cross examination.
PW4 is the Ld. M.M. who recorded the statement of victim u/s 164 Cr.P.C. is EX.PW4/B and gave her certificate Ex.PW4/C. There is no cross examination.
PW5 is the IO who recorded the statement of complainant on Page 11 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh 25.05.2013 Ex.PW5/A and prepared the rukka Ex.PW5/B. He thereafter, took the victim to the hospital on 07.01.2014 along with her mother. There is no cross examination.
PW6 is doctor who identified the signatures of Dr. Prashant who examined the victim vide MLC Ex.PW6/A. There is no cross examination.
PW7 is the doctor who examined the accused and prepared the potency test report EX.PW7/A. There is no cross examination.
PW8 is the the doctor who deposed on behalf of Dr. Mahinder Kumar, Dr. Basanti Kumari and Dr. Jagjivan Murmur. He identified their signatures on the MLC of the accused Ex.PW8/A. There is no cross examination.
PW9 is the W/HC who took the victim and her mother to the hospital for medical examination. There is no cross examination.
PW10 is the mother of the victim who stated that on 24.05.2013, her daughter went missing without disclosing to anyone. Her husband lodged her missing report on the next day. After two days, she came to know that her daughter had reached at her brother's house at Shalimar Bagh. Due to Page 12 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh shame, she did not inform the police. Later on, accused started harassing her daughter and then her daughter informed her that she stayed with the accused for two days and he made physical relation forcibly with her. She brought her daughter to PS on 07.01.2014 from where her daughter was taken to hospital. She was cross examined at length wherein she stated that her daughter told her that accused teased her 23 days prior to 24.05.2013 but she had not seen the accused prior to 07.01.2014. She did not report to the police about teasing of the daughter. There is no other material aspect in the cross examination.
PW11 is the father of the victim i.e. the complainant and stated that his daughter went missing on 24.05.2013 at about 10.30p.m. and he lodged her missing complaint on the next day EX.PW5/A. After two days, he received information that his daughter has reached his brother in law house at Shalimar Bagh Village and due to shame, he did not inform the police. Later on, accused started harassing his daughter and his daughter informed her mother that she stayed with the accused for two days and he made forcibly physical relation with her. In the cross examination, he stated that Page 13 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh he did not know the accused prior to 24.05.2013 and came to know about him on that day itself. After 45 months of the return of his daughter, she told her mother that during her stay with the accused for two days, he made physical relation forcibly with her. There is no material cross examination.
PW12 is the second IO who took over the investigation on 07.01.2014 and he got the victim medically examined and samples were not seized as victim refused for the same. Accused was arrested and was also medically examined and samples were obtained. Thereafter, statement of victim u/s 164 Cr.P.C. was recorded and this chargesheet was filed. There is nothing material in the cross examination.
PW13 is the doctor who identified the signatures of Dr. Pushpanjali, the then SR. Gynae. who examined the victim. There is no material cross examination.
5. In the statement of accused u/s 313 Cr.P.C., accused stated that he has been falsely implicated in this case by the victim at the instance of her parents and no such incident ever took place. He examined one defence Page 14 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh witness from the Office of PWD Unnao, U.P. to prove the distance between Unnao to Mianganj. There is no material cross examination to defence witness.
6. It is argued for the accused that the prosecution has failed to prove the date of birth of the victim. The IO though collected the date of birth proof of the victim from her school but the prosecution did not cite nor examine the witness from the said school to prove the age of the victim and as such no offence of kidnapping of minor is made out in this case as prosecution failed to prove the age of the victim. It is also argued that victim allegedly was kidnapped on 24.05.2013 but came forward to make the allegation of alleged forcible physical relation by the accused only on 07.01.2014 i.e. after a gap of almost six months and this inordinate delay has not been explained. It is also stated that as per the parents of the victim i.e. PW10 and PW11, the victim returned to the house of her maternal uncle(mama) on 27.05.2013 yet her parents did not produce her before the police till 07.01.2014 though it was alleged in the complaint that she was Page 15 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh kidnapped by the accused which shows that the entire story of kidnapping and forcibly physical relation is concocted. It is argued that victim has made considerable improvements in her statement given in the court as compared to her statement u/s 164 Cr.P.C. and is not a reliable witness.
Ld. Chief Prosecutor on the other hand, has argued that age of the victim has been duly proved vide EX.PW12/E and Ex.PW12/F as 09.11.1996 and she was minor on the date of kidnapping i.e. 24.05.2013 and she has specifically stated that when accused again started teasing her in January, 2014, she disclosed the fact of his forcible physical relation to her parents and there is no delay in this regard and there are only minor variations and no improvement or contradiction and as such the prosecution has proved the commission of all the offences by the accused beyond reasonable doubt and accused should be convicted accordingly.
7. I have heard Ld. Defence counsel and Ld.Chief Prosecutor.
8. As far as date of birth of victim is concerned, the prosecution has Page 16 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh failed to prove the date of birth of the victim. The IO along with chargesheet filed the school certificate Ex.PW12/F and the admission form Ex.PW12/G but these two documents were not proved by the prosecution as per law. The IO is not the author of these two documents and the prosecution neither cited nor examined the witness from the school to show that on what basis and record, the certificate was issued by the school authority. Apart from these two documents Ex.PW12/F and Ex.PW12/G, which have not been duly proved, there is no material on record to ascertain the age of the victim. It has been held by Hon'ble Supreme Court in case Biradmal Singhvi Vs. Anand Purohit, AIR, 1988 SC 1796 that the date of birth mentioned in the scholar register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form must be shown to be made on the basis of information given by the parents and if someone else who had no special means of the knowledge of the date of birth has given this information, such an entry will have no evidentiary value. In the present case, the person from the school who made this entry and on what basis he made this entry was not Page 17 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh proved by the prosecution and as such the document EX.PW12/F and Ex.PW12/G cannot be relied upon and the prosecution as such has failed to prove the correct date of birth of the victim.
9. Coming to the main incident, the victim was allegedly kidnapped on 24.05.2013 and as per her statement, she was taken to Unnao by the accused and she lived with him there for two days and thereafter, she went to Raibareili of her own to the house of her maternal uncle (mama) and remained there for one and one and half months and thereafter came to Delhi. Her statement is contradictory to the statements given by her parents PW10 and PW11. They stated that their daughter went missing on 24.05.2013 at 10.30p.m. and after two days they received information that she had reached her mama's house at Shalimar Bagh Village, Delhi. The prosecution has failed to prove the story as to where the victim went after she was allegedly kidnapped on 24.05.2013 and why she was not brought to PS since her returning back on 26.05.2013 to her maternal uncle's house either at Delhi or at Raibareili. Further, the allegations of forcible sexual Page 18 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh assault were made on 07.01.2014 after about a gap of more than six months from the date of alleged returning of the victim on 26.05.2013. Neither her parents nor the victim has been able to give any satisfactory explanation as to why the allegations of forcible sexual assault were made for the first time in January, 2014. Further, there are improvements by the victim while she gave her statement in the court visavis her statement recorded u/s 164 Cr.P.C. In her statement u/s 164 Cr.P.C., she stated that she had friendship with the accused and at his instance, she went to his village Unnao on 24.05.2013. From there after two days, she was taken to court where her signatures were obtained on court marriage papers with the accused. In this statement u/s 164 Cr.P.C., she never stated that accused put something on her nose before kidnapping her. She did not state in the statement u/s 164 Cr.P.C. that she was taken in a car or that her signatures were obtained on stamp papers or that from Unnao, she went to Raibareili to the house of her maternal uncle or that accused again started harassing her when she came back to Delhi. All these improvements made in the testimony in the court make her untrustworthy and unreliable witness. There Page 19 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh is no doubt that conviction in a rape case can be based solely on the testimony of the prosecutrix but that can be done only in the case where court is convinced about truthfulness of her testimony and there is no such circumstance which cast shadow of doubt on her veracity. If her testimony does not appear to be a witness of sterling quality, a conviction cannot be made on her statement. As already noted, she made improvements from her statement given earlier u/s 164 Cr.P.C. and her age being not proved by the prosecution, then without any corroboration, it cannot be said that prosecution has proved the offences beyond reasonable doubt. Even if it is presumed for the sake of argument that prosecution has proved the date of birth of the victim as 09.11.1996 as mentioned in Ex.PW12/F, even then on the date of alleged kidnapping i.e. 24.05.2013, the victim was more than 16 years and 6 months i.e. she had already crossed the age of discretion. She did not raise any hue and cry when she was allegedly kidnapped on 24.05.2013 and further remained silent about forcible physical relation by the accused with her till 07.01.2014. She did not state to Ld. M.M. that accused again started harassing her for which she was compelled to lodge Page 20 of 21 FIR No. 193/2013 : State V/s Vinod Verma: PS Shalimar Bagh the complaint after six months in January, 2014. There are considerable improvements in her testimony which makes her unreliable and the delay has not been explained by the prosecution. Though it is not relevant for the purposes of deciding this matter but is not out of place to mention that victim is now happily married with accused and is living with him and is present today in the court along with the accused. The prosecution has failed to prove commission of any of the offence against the accused. Accused Vinod Verma is given benefit of doubt. Accordingly, he is acquitted. His bail bond stands cancelled and surety bond stands discharged. Endorsement, if any on the documents of accused or his surety be cancelled. The original documents of accused or his surety, if on record, be returned to him forthwith.
(Announced in the open (Amit Kumar)
Court on 13.03.2018) Addl. Session Judge01/
Special Court, POCSO
(NorthWest), Rohini/Delhi
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