Delhi District Court
State vs . Prem Chand on 3 April, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 61/13)
Unique ID case No. 02404R0135652013
State Vs. Prem Chand
FIR No. : 72/13
U/s : 363 IPC
& u/s. 7 punishable u/s. 8 of POCSO Act
& u/s. 11 (vi) punishable u/s. 12 of POCSO Act
P.S. : Bharat Nagar
State Vs. Prem Chand
S/o Sh. Kanchan Singh,
R/o N17 B/87, Pattharwala Bagh,
J.J. Colony, Wazirpur,
Delhi.
Date of institution of case - 10.05.2013
Date on which, judgment has been reserved 03.04.2014
Date of pronouncement of judgment - 03.04.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that accused Prem Chand kidnapped victim P, a minor child aged about 12 years, from street in front of jhuggi No.N17 C/125, J.J. Colony, Wazirpur, at about 9:00 PM on SC No. 61/13 State Vs. Prem Chand Page Nos. 1 of 22 2 10.03.2013 and took him to a dark place near Kanhaiya Nagar Metro Station, on the other side of Canal, and committed sexual assault on the victim child P. It is further alleged that at that time accused also gave him Rs.50/ as gratification and thereby sexually harassed the victim child. The case was registered against the accused on statement made by the victim child himself. During the course of investigations, victim P as well as accused were got medically examined and the samples collected from them, by the concerned doctors, were seized by the IO and sent to FSL. Age proof of the victim child was also collected. Initially accused was produced before the concerned Juvenile Justice Board, as he appeared to be less than 18 years of age as on the date of commission of offence, however, later on IO obtained his school certificate wherein his date of birth was mentioned as '13.01.1991', according to which age of accused was above 18 years as on the date of commission of offence. Hence, the charge sheet of accused was filed before the Court of learned MM concerned.
2 Age inquiry was conducted and accused was held to be above 18 years of age, as on the date of commission of offence, vide order dated 31.07.2013.
3 After hearing arguments, charge for the offence under Section 363 IPC and u/s. 7 punishable under Section 8 of POSCO Act and u/s. 11
(vi) punishable u/s.12 of POCSO Act was framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
SC No. 61/13 State Vs. Prem Chand Page Nos. 2 of 22 3 4 In order to prove its case, prosecution has examined 18 witnesses.
5 The PW1, HC Jagbir Singh, was posted as duty officer at PS Bharat Nagar at the relevant time. He proved the endorsement made by him on rukka as Ex.PW1/A and computerized copy of FIR as Ex.PW1/B. 6 The PW2 P is the victim child. His statement was recorded in camera proceedings. It was ensured that the victim child was comfortable while deposing and for this purpose, certain preliminary questions were put to victim child M to ascertain his competence to depose as witness and to be satisfied that he understood the importance of speaking truth. After being so satisfied, his testimony was recorded on oath. In the relevant portion of his statement the victim deposed as under : "Q. Batao kaya hua tha ?
Ans. Main Bheem, jo Prem chand ka Chota bhai hai, ke saath khel raha tha. Again said, Bheem, apne bhai Prem Chand ke saath tikki khane ja raha tha.
Q. Phir kaya hua ?
Ans. Prem Chand ne muje bola, apne ghar jao.
Hamko dar laga, kyonki andhera ho gaya tha.
Q. Phir kaya hua ?
Ans. Hamne kaha, hum nahi jayenge.
SC No. 61/13 State Vs. Prem Chand Page Nos. 3 of 22
4
Q. Phir kaya hua ?
Ans. Us samay me ro raha tha, wahan se mera bhai
gujar raha tha, vo mujhe ghar le gaya.
Q. Ye kis Jagah ki baat hai ?
Ans. Kanhiya Nagar Metro Station, Nahar ke pass.
Q. Ye kis samay ki baat hai ?
Ans. Raat ki baat hai, 9.00 baje ki.
Q. Tum roye kyon the ?
Ans. Kyonki muje dar lag raha tha, andhera ho raha tha.
Q. Phir kaya hua ?
Ans. Muje ghar le gaye aur mummy ko sab bataya Q. Phir mummy ne kaya kiya ?
Ans. Mummy ne Prem ke ghar jakar jagra kiya.
Q. Mummy ne kyon jagra kiya ?
Ans. Kyonki hame akele chod diya tha, aur hum ro rahe the.
Q. Phir kaya hua ?
Ans. Mummy ne police ko call kiya.
Q. Phir kaya hua ?
Ans. Police ayi, mujhe aur mummy ko thane le gayi, aur uske baad hospital le gaye.
Q. Hospital kyon le gaye the ?
Ans. Hamare chot lagi thi, kyonki hamare bhai ne hame mara tha, ki tu wahan andhere me kyon gaya.
SC No. 61/13 State Vs. Prem Chand Page Nos. 4 of 22 5 Q. Apne hospital me doctor ko bataya tha, ki apko chot kese lagi ?
Ans. Nahi. Doctor ne kuch nahi check kiya.
Q. Police me shikayat kyon kari thi ?
Ans. Kyonki, Prem chand ke ghar walon ne mummy ko bahut, galiya di thi.
Q. Mummy ko kyon galiya di thi ?
Ans. Kyonki, ve jagra kar rahe the."
7 A specific Court question was asked from the child P regarding hurt / injury, if any, caused to him, by the accused which was replied to in negative by the victim child. It was further clarified from the victim if he was deposing under any kind of fear. This question was also replied to in negative by the witness. The witness further denied that his statement Ex.PW2/A had been recorded by the police and could only identify his name written thereupon at point "A".
8 During his further examination, the witness stated that he was also known by the name of 'H' and that sometimes he used to put his thumb impression on his statement. The witness was put his statement u/s.164 CrPC. He stated that he did not remember having made the said statement. During his further examination, witness deposed as under : "Q. Jaab apse ye sign karaye, tab mummy bhi apke saath thi ?
SC No. 61/13 State Vs. Prem Chand Page Nos. 5 of 22
6
Ans. Haan.
Q. Kaya aap pahle bhi court me aye ho ?
Ans. Haan.
Q. Kaya jo apne aaj bataya hai, vo tab bhi Judge
Sahab ko bata diya tha ?
Ans. Haan
Q. Kaya aap apne naam likna jante ho ?
Ans. Haan.
Q. Aap apna kaya naam likhte ho ?
Ans. Hasrat @ Phool Babu. Mujhe ghar me sab
Phool Babu kahte hai."
When the witness was shown his statement u/s 164 Cr.P.C. The witness stated that he did not remember, if he had signed the said statement or put his LTI. During his further deposition, PW2 stated as under: "Q. Kaya us din, Prem Chand ne Tumhe pachas rupey dene ka lalch diya tha ?
Ans. Nahi.
Q. Kaya Prem chand ne Kanhiya Nagar Metro Station ke pass, nahar par pahunch kar, apni aur tumari pants utar di thi ?
Ans. Nahi Q. Kaya Prem Chand ne tumahre saath, galat kaam SC No. 61/13 State Vs. Prem Chand Page Nos. 6 of 22 7 karne ki koshish ki thi ?
Ans. Nahi.
At this stage, a Court question was put to PW2 to clarify why he had given statement, against the accused, to the police and learned MM and in response to same, witness stated that "kuch baat nahi hai".
Some leading questions were also put to the witness by the learned Additional PP. In response to said questions, witness deposed as under : "Q. Kya Prem Chand apka padosi hai ?
Ans. Ha.
Q. Kya Prem Chand aur uske mummy papa
aur baki gharwalo ne apke mummy papa se samjhota karne ki baat ki hai ?
Ans. Ha.
Q. Kya yeh baat bhi thik hai ki apko aaj Court
me iss tarah se bayaan daine ke liye tumhare aur Prem Chand ke gharwalo ne kaha tha aur aap unke kehne par aaj bayaan de rahe ho ?
Ans. Ha."
9 During his crossexamination by learned defence counsel,
witness deposed as under :
SC No. 61/13 State Vs. Prem Chand Page Nos. 7 of 22
8
"Q. Kya yeh baat sahi hai ki police ne apko
bina bataye aapse Ex.PW2/A par sign karne ko kaha tha ?
Ans. Mujhe nahi pata, maine sirf sign kiye
the.
Q. Kya aapko aaj kisi ne daraya dhamaka
hai ?
Ans. Nahi.
Q. Kya aapke mummy papa aur Prem
Chand ke mummy papa ke beech aisi koi baat hui ke ab aap Prem Chand ke liye kuch galat bayaan nahi doge ?
Ans. Nahi." 10 The PW3, Smt. Sehnaz Begum, is the mother of the victim child.
She deposed that she was working as maid servant in kothis and was illiterate and that she had seven children including the victim child P and that her husband had abandoned her and her children and had got married again. She further deposed that on the day of the incident at about 9:00 PM, her son P, aged about 12 years, was playing with the younger brother of accused Prem Chand. The accused took his younger brother along with him and her son P started following them to play with the younger brother of the accused and on this accused scolded P and told him to go back. The PW3 then deposed that her son P got frightened as he was left alone in the dark SC No. 61/13 State Vs. Prem Chand Page Nos. 8 of 22 9 and started weeping and that his cries were heard by her elder son Ashraf, who was returning back from his work. The victim child P narrated about the incident to Ashraf who in turn told about the same to PW3. The PW3 further deposed that on hearing about the incident, she got annoyed and went to the house of accused to ask him as to why he had left victim child P alone in dark and that on hearing her narration about the incident, family members of accused started abusing PW3 and that there was also a physical scuffle between PW3 and Bhabhi of accused in which accused Prem Chand and his elder brother also joined and started giving beatings to PW3 and victim child P. Thereafter PW3 called police which came and took them all to PS. The PW3 further deposed about handing over MCD Birth Certificate of child P to police and it being seized vide seizure memo Ex.PW3/A. She also identified her thumb impression on complaint Ex.PW2/A, recorded on statement made by victim P. The PW3 also expressed her lack of knowledge about the history recorded by examining doctor on MLC of victim P and statement u/s.164 CrPC made by the victim child. Since this witness failed to support the prosecution case, she was crossexamined at length by learned Additional PP. 11 During her crossexamination by learned Additional PP, she termed it correct that she had stated to the police that her son had told her that accused had taken him to a dark place which fell after crossing the canal of Metro Station of Kanhaiya Nagar and had further told him that accused lurd him to that place by giving him Rs.50/ and that at that place accused removed his pant as well as pant of victim P and tried to do galatkam with SC No. 61/13 State Vs. Prem Chand Page Nos. 9 of 22 10 him. Immediately thereafter PW3 volunteered to state that this fact had not been told by her to the police and that her sons had told the same to the police. She also termed it correct that she had compromised the matter with the family of the accused as she had five daughters, aged between 18 to 6 years, and did not want to get involved with a police case. 12 During her crossexamination by learned defence counsel, the PW3 termed it correct that while playing children sometimes went to Kanhaiya Nagar. She also termed it correct that she used to leave for work at 9:00 AM and returned back at 8:30 PM. She further deposed that on the day of incident she came back to her house at 9:00 PM and that on that day also her son was playing with other children outside the house. 13 The PW10, Ashraf, is the elder brother of the victim child P. He deposed that victim child P @ H was third youngest child of his parents and that on the day of incident, when he (PW10) was returning home, from work, via Kanhaiya Nagar Metro Station at about 9:00 PM, he saw his brother i.e. victim P weeping near the Metro Station. At that time 5 - 6 other children of the locality were also there. The PW10 further deposed that he asked P @ H as to why he was weeping and he (victim child P @ H) told him that he had a quarrel with those children and that thereafter he took the victim P home and that victim P went to the house of accused and had a quarrel with him and thereafter their mother called the police.
14 This witness was crossexamined by learned Additional PP as he SC No. 61/13 State Vs. Prem Chand Page Nos. 10 of 22 11 failed to depose as per the prosecution case. During his crossexamination by learned Additional PP, PW10 expressed his lack of knowledge if police had recorded his statement u/s.161 CrPC. He denied that on 10.03.2013, while returning back from work, he had seen his brother H @ P weeping near Canal near Metro Station of Kanhaiya Nagar or that at that time accused Prem Chand was also there with his pant half removed or that the pant of his brother H @ P had also been removed or that accused was trying to do galatkam with H @ P at that time. He also denied having told the police that on seeing him (PW10) accused ran away from the spot after pulling up his pant or that at that time his brother H @ P told him that accused had brought him from outside their jhuggi on pretext of giving him Rs.50/ or that accused had taken H @ P to a dark area where he removed his pant as well as pant of H @ P and tried to commit wrong act with H @ P. The PW10 also denied having told about the incident to his mother, who in turn called the police at 100 number. The PW10 expressed his lack of knowledge about medical examination of victim P @ H. 15 The PW9, Ms. Archana, Principal, produced original record from MCD Primary School, B2, Sukhdev Kunj, Keshav Puram, Delhi, wherein victim child H was admitted in first class and proved copy of admission form, affidavit of Smt. Shehnaz Begum, mother of the child, and photocopy of MCD Birth Certificate of the child as Ex.PW9/A, Ex.PW9/B and Ex.PW9/C respectively ; photocopy of the relevant entry in the admission register as Ex.PW9/D and the original certificate of date of birth, issued by the School Principal as Ex.PW9/E. As per record produced by PW9, the date of birth SC No. 61/13 State Vs. Prem Chand Page Nos. 11 of 22 12 of victim child is 12.12.2000.
16 The PW8, Sh. Sushil Anuj Tyagi, learned MM, had conducted the proceedings u/s.164 CrPC and proved the same as Ex.PW8/A to Ex.PW8/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW8/A ; statement of victim child u/s.164 CrPC as Ex.PW8/B ; the certificate given by PW8 as Ex.PW8/C and application for supply of copy of said statement, filed by IO, as Ex. PW8/D. 17 The PW4, Dr. Kritya Dubey, was deputed in place of Dr. Yogesh Sharma, who had conducted general medical examination of victim child P vide MLC Ex.PW4/A and had referred him to surgery, forensic and paediatrics Department for further examination and deposed regarding the same.
18 The PW14, Dr. Ashish Katariya, was working as EMO on 11.03.2013 and he deposed that on that day, he conducted the general examination of patient - victim P vide MLC Ex.PW14/A and during examination, he found that patient was well oriented to time, place and person and that he had no sign of any external injury on body or genital and that he did not have any bleeding from any site of his body. 19 The PW17, Dr. Jagmohan, CMO, was deputed in place of Dr. Arshad Jamaal, then SR (Surgery), who had examined the victim P on 11.03.2013 vide MLC Ex.PW14/A. He deposed that on examination he SC No. 61/13 State Vs. Prem Chand Page Nos. 12 of 22 13 found no tenderness or abrasion around the anus of the patient and further no blood or fluid was found around the anal area.
20 The PW16, Dr. Vijay Kumar, had also conducted medical examination of the victim P and that on examination, no discharge or bleeding was found present around the anal spincter of the patient and further no bruising, abrasion or tear was found around anus of the child. 21 The PW5, Dr. Parveen, was deputed in place of Dr. Junaid Handani, who had conducted general medical examination of accused vide MLC Ex.PW5/A and had referred him to EMO (S) and EMO (Forensic) for further examination and management and deposed regarding the same. 22 The PW15, Dr. Abhishek Pachauri, had conducted medical examination of the accused vide MLC Ex.PW15/A and opined regarding his sexual potency by observing that "there was nothing to suggest that the patient examined is not capable of performing sexual anal intercourse." 23 The PW18, HC Rakesh, was posted as MHCM of PS Bharat Nagar at the relevant time. He produced the original register No.19 and proved the relevant entries regarding deposit of the case property and sending the same to FSL Rohini as Ex.PW18/A to Ex.PW18/D. 24 The PW6, SI Puneet Grewal, had joined the investigation of the present case with IO SI Ramkesh and deposed that on 12.03.2013, he along SC No. 61/13 State Vs. Prem Chand Page Nos. 13 of 22 14 with SI Ramkesh went to Prayas Observation Home for Boys, Delhi Gate and took the JCL Prem Chand (accused Prem Chand) to JJBII from where the concerned Principal Magistrate had verbally ordered him to be produced before the Court as he was major and that thereafter the accused was arrested. The PW6 proved the arrest and personal search memo of accused as Ex.PW6/A and Ex.PW6/B respectively. 25 During his crossexamination, the PW6 deposed that the parents of accused were informed about the arrest of accused. He denied the suggestion that no verbal instructions were given by the Principal Magistrate JJBII or that IO arrested the accused of his own. 26 The PW12, ASI Mahender Singh, is the first investigating officer of the present case and deposed that on receipt of DD No.57 B i.e. Ex.PW12/A, he along with PW7 Ct. Anil Kumar went to the spot where he met victim child P and his mother Sehnaz Begum, who told him that a boy from neighbourhood had committed wrong act with victim child P. The PW12 then deposed that he Ct. Anil took the victim child along with his mother to BJRM Hospital for his medical examination and that he moved an application Ex.PW12/X for the medical examination of the victim child on which he was informed in writing by the CMO of BJRM Hospital that the hospital did not have facility for surgery SR and was told to take the victim to some other hospital and accordingly, he took the victim child to Hindu Rao Hospital where the victim was examined vide MLC No.1654/13. The PW12 proved the seizure memo of exhibits of victim child, which the concerned SC No. 61/13 State Vs. Prem Chand Page Nos. 14 of 22 15 doctor had taken at the time of medical examination of the victim child, as Ex.PW7/A. The PW12 further deposed that he produced the victim child P as well as his mother before PW11 W/SI Rajesh, who recorded the statement of the victim child and thereafter he prepared rukka Ex.PW12/B and got the case FIR registered through Ct. Anil.
27 During his crossexamination, the PW12 deposed that he reached at the spot at about 10:45 PM and met victim child and his mother and that no quarrel was going on at that time between the family of the victim and the family of accused but a gathering of public persons was there and that he made inquiry from public persons present at the spot but none of them told him anything about the incident. During his further cross examination the PW12 deposed that the victim had told him, at the spot, that he was having pain in his anal region but when he (victim) was taken him to hospital he did not complain about it again on their way to the hospital and that the mother of the victim did not tell him anything about her quarrel with the family of the accused. He denied the suggestion that he had received call of quarrel only and not regarding incident of sodomy or that a false case had been registered against the accused at the instance of mother of the victim, or that the victim did not complain of any physical discomfort to him since no such mishappening had taken place with him. 28 The PW7, Ct. Anil Kumar, had joined the investigations of the present case with IO PW12 ASI Mahender Singh and deposed regarding the same.
SC No. 61/13 State Vs. Prem Chand Page Nos. 15 of 22 16 29 The PW11, W/SI Rajesh, is the part investigating officer of the present case. She deposed that on 10.03.2013 she received a call from duty officer of PS Bharat Nagar and reached the spot where she had recorded the statement of victim child and deposed regarding the same. 30 The PW13, SI Ramkesh, is the third investigating officer of the present case. He deposed that on 11.03.2013 further investigations of the present case were entrusted to him and accordingly he went to the spot where ASI Mahender Singh produced the victim child P before him. The PW13 then deposed that he got the statement of victim child u/s.164 CrPC recorded vide his application Ex.PW8/A. He further deposed that he went to the area where victim was residing, in search of accused, and when they reached near the house of accused, they met father of the accused, who produced accused Prem Chand before him. He further deposed that when the accused was produced before him, accused appeared to be a juvenile from his physical appearance and that he asked for proof of age of accused from his father, who produced one ration card, wherein year of birth of accused was mentioned as 1992 and an Aadhar Card, wherein his year of birth was mentioned as 1995, and so he (PW13) treated the accused as juvenile and prepared his apprehension memo Ex.PW13/A. The PW13 further deposed that thereafter he recorded the version of the child in conflict with law vide Ex.PW13/B and that since it was already 9:00 PM, the information regarding apprehension of accused (then JCL) was given to Ms. Geetanjali Goel, the then Principal Magistrate, JJBII, Delhi Gate, and on her SC No. 61/13 State Vs. Prem Chand Page Nos. 16 of 22 17 directions, the accused was left at Prayas Observation Home, Delhi Gate, after his medical examination.
31 The PW13 further deposed that on next day, the accused was produced before Ms. Geetanjali Goel, PM, JJBII, and that at that time one school certificate of accused was obtained from the school, wherein his year of birth was mentioned as 1991 and after perusing the said certificate, Ld. PM, JJBII, verbally directed that the accused be produced before duty MM and that thereafter accused was arrested vide arrest memo Ex.PW6/A. The PW13 further deposed that on 18.03.2013 he filed an application Ex.PW13/C before Sh. D.K. Jangala, then ld. ACMM for issuance of production warrants of accused for his examination at hospital for potency test and that the accused was produced before learned ACMM on 19.03.2013 on which date learned ACMM passed an order Ex.PW13/D directing Medical Superintendent, BJRM Hospital to conduct the medical examination of accused, as per provisions of law. The PW13 then deposed that MS BJRM Hospital, vide letter dated 25.03.2013 i.e. Ex.PW13/E, informed PW13 that there was no facility for potency test available in the hospital and accordingly PW13 moved an application Ex.PW13/F for referral of the matter to some other hospital and that after obtaining the referral, the accused was taken to Hindu Rao Hospital on 08.04.2013, where his potency test was conducted and that after medical examination of accused, the concerned doctor had handed over one sealed blood sample and one sample seal which were seized by him vide seizure memo Ex.PW13/G. SC No. 61/13 State Vs. Prem Chand Page Nos. 17 of 22 18 32 During his crossexamination, the PW13 denied the suggestion that accused had surrendered before him at the PS or that he was not apprehended in the manner stated by him in his examination in chief. 33 After all the prosecution witnesses were examined, PE was closed. Statement of accused was dispensed with as nothing incriminating came on record against the accused from examination of the material prosecution witnesses.
34 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 35 I have heard the arguments and also perused the record carefully.
36 In the present case, accused is alleged to have kidnapped victim child P @ H from the street in front of his jhuggi and taken him to a secluded place where he committed sexual assault upon the victim. The accused is further alleged to have offered gratification of Rs.50/ to the victim child at that time and thus also caused sexual harassment to the victim child. In order to prove its case, prosecution has examined victim child P @ H as PW2. The testimony of victim child P @ H has been discussed at length in the foregoing paragraphs. In his testimony, the victim child P @ H has completely denied the incident as put forth by the prosecution. Rather he SC No. 61/13 State Vs. Prem Chand Page Nos. 18 of 22 19 has stated that on the day of incident, he was playing with Bheem, younger brother of accused, till late hours and that they both i.e. accused and his brother Bheem were going to have tikki and that at that time accused Prem Chand told victim child P @ H to return back to his house but victim P @ H refused to go as it was dark by then (Andhera ho gaya tha) and so he started crying. The brother of victim child P @ H, who was passing by, saw him crying and brought him back home at about 9:00 PM. The victim child has also stated that thereafter his mother was informed and that his mother went to the house of accused to inquire about it and had a quarrel there with family members of accused, after which she gave a call to the police. Since the victim stated that he had been taken to hospital a specific question was put to him as to why he had gone to hospital and in response to it victim child P @ H stated that it was so because his brother had beaten him for going out at late hours after it was dark and hence, he had sustained injury. The witness also denied that he had been hurt in any manner by accused Prem Chand and further denied that accused had given him Rs.50/ to entice him. He specifically denied that accused had committed any wrong act with him. 37 The prosecution has also examined Ashraf, brother of victim child P @ H, as PW10. This witness is stated to have reached the spot of incident and seen his brother weeping and accused standing with him in a state of partial undressed and his brother undressed waist below and accused trying to do galatkam with his brother. During his deposition as PW10 Ashraf, brother of victim child P @ H also failed to support the prosecution case and stated that on the day of incident while returning back SC No. 61/13 State Vs. Prem Chand Page Nos. 19 of 22 20 from his work, he saw his brother P @ H weeping near Metro Station and that at that time 5 / 6 other children of locality were also present there and that at that time victim child P @ H told PW10 that he had quarrel with those boys. The witness was crossexamined at length, however, he denied that he had seen accused with his brother P @ H, on the day of incident, in a secluded place, or that at that time they both were in a state of undress or that accused was seen doing galatkam with his brother by PW10. 38 Smt. Sehnaz Begum, the mother of victim child P @ H and PW10 Ashraf, who has also been put forth as a material link witness, too failed to support the prosecution case. She stated that on the day of incident younger brother of accused Prem Chand was playing with her son P @ H and that accused took his younger brother along with him and that her son P @ H also started following them to play with him, on which accused secluded P @ H and asked him to go back. She further deposed that her son P @ H got frightened as it was dark and started weeping as he was left alone and that her elder son Ashraf, who was returning back from work, heard cries of P @ H and brought him back home and thereafter she (PW3) went to the house of accused to ask him as to why he had acted in this manner with his son P @ H on which family members of accused started abusing her and a quarrel ensued and thereafter PW3 called police. The PW3 denied that the accused had lured away victim P@ H on pretext of giving him Rs.50/ and had committed wrong act with child P @ H by taking him to a secluded dark place.
SC No. 61/13 State Vs. Prem Chand Page Nos. 20 of 22 21 39 From the testimony of PW2 victim child P @ H, PW3 Smt. Sehnaz Begum, mother of victim child P @ H, and PW10 Ashraf, it is seen that they have completely denied the case as put forth by the prosecution and have exonerated accused of allegations of enticing / kidnapping of the victim child P @ H by offering him Rs.50/ and committing wrong act against the order of nature, in a secluded place, with him. Further the medical evidence on record i.e. MLC Ex.PW14/A (also exhibited as Ex.PW4/A), of victim, also does not support the allegations of forced sexual assault upon the victim child P @ H. Dr. Ashish Katariya, who had conducted general medical examination of victim P @ H vide MLC Ex.PW14/A, and Dr. Vijay Kumar, who was SR Forensic Medicine, and Dr. Jagmohan, who appeared in place of Dr. Arshad Jamaal, SR Surgery, who had examined the patient for presence of signs of injuries, consequent to alleged sodomy, have deposed that no injuries, etc., were found on the person of victim child P @ H. In fact a specific Court question was put to PW16 Dr. Vijay Kumar regarding findings given by him on the backside of MLC and if the said findings were affirmative of sodomy on the patient. In response to the said question, PW16 stated that in the light of his findings sodomy was ruled out. 40 Further the FSL result (now exhibited as Ex.PX) also negates the case of forcible sexual assault put forth by the prosecution. All the remaining witnesses examined by prosecution are formal witnesses whose testimony would have become relevant only if material prosecution witnesses i.e. the victim child and other public witnesses had supported the case of the prosecution. In absence of victim child and other public witnesses standing SC No. 61/13 State Vs. Prem Chand Page Nos. 21 of 22 22 by the case put forth by the prosecution, the testimony of the remaining witnesses examined by the prosecution is of no help to the prosecution in proving its case against the accused and even otherwise the medical and biological evidence on record is also not of any aid to the prosecution case. 41 The nutshell of foregoing discussion is that from the testimony of the victim child P @ H as well as other material witnesses examined by it, the prosecution has miserably failed to prove that accused had kidnapped victim child P @ H or that he had taken him to a dark place near Kanhiya Nagar Metro Station, towards the other side of canal and committed sexual assault upon the victim child by removing his pant as well as pant of accused, or that the accused had enticed the victim by giving him gratification of Rs.50/ at that time. Accordingly, I acquit accused Prem Chand of the charged offence u/s. 363 IPC and u/s. 7 punishable u/s. 8 and u/s.12 of POCSO Act, by giving him benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 03.04.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 61/13 State Vs. Prem Chand Page Nos. 22 of 22
23
FIR No. 72/13
P.S. Bharat Nagar
State Vs. Prem Chand
03.04.2013
Present: Ld. Addl. PP for the State.
Accused on bail with counsel Sh. Ajay Bharti.
PW18 HC Rakesh is present. He is examined, crossexamined and discharged.
All PWs stand examined, hence, PE closed.
FSL result filed. Copy given.
Statement of accused was also dispensed with for want of incriminating evidence.
Arguments heard.
Judgment shall be passed during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi At 4:30 PM Present: As before.
Vide separate judgment, announced today in the open Court, accused Prem Chand has acquitted of the charged offence.
The accused requests that his previously furnished bail bonds may be accepted in compliance of Section 437A Cr.PC. Request allowed. SC No. 61/13 State Vs. Prem Chand Page Nos. 23 of 22 24 Accordingly, previous bail bonds of accused are extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi/03.04.14 SC No. 61/13 State Vs. Prem Chand Page Nos. 24 of 22