Delhi District Court
The State vs . on 24 January, 2017
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No.: 51/2016 (Old No.)
56759/2016 (New No.)
FIR No.: 648/15
PS : Khyala
U/S : 363/366/376/328 of IPC & Sec.6 of POCO Act
The State
(Govt. of NCT of Delhi)
Vs.
Sushil Gond
S/o Sh. Ram Chander
R/o R215, Raghubir Nagar,
Delhi.
...... Accused
Date of Institution : 20.02.2016
Date of arguments : 24.01.2017
Date of judgment : 24.01.2017
JUDGMENT:
1 Brief facts of the case are that, in the case in hand, the FIR Ex.PW2/B was registered u/s 363 of IPC, on the basis of the complaint of 'MP' (presumed name of the father of prosecutrix) recorded in the Daily Dairy Register vide DDR 64A, copy whereof is Ex.PW2/A, wherein he has alleged that on dated 07.10.2015 at 4.00 pm, his daughter 'K' (presumed name of the prosecutrix) aged about 15years & 9months, had gone from his house without giving any information and they had tried to search to the prosecutrix, but, could not find her and he suspected that the prosecutrix had gone with one boy Sushil, who FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 1 of 12 had induced & kidnapped away to the prosecutrix and prayed for taking legal action against him. On the recovery of the prosecutrix, her statement U/s 164 of Cr.PC was recorded & she has alleged therein on dated 08.10.2015 at 4.00 pm, she went alone for roaming at Rajouri Garden Metro Station, where one boy, whose height was bit less, he was fat, he had muffled his face with handkerchief & he had given her a biscuit, but, she refused, then, he again gave the same & she had consumed the same and on consuming thereof, she does not remember as to what had happened with her & when she regained her consciousness, she found herself in a room & that boy, who had met her at metro station, was also there and he raped to the prosecutrix & when she asked about his name, he told his name as Deepak & another time, he told his name as Dilip and on dated 10.10.2015, he left to the prosecutrix at Rajouri Garden Metro Station and from there, she went to her house & she told about the entire incident to her mother & she does not know the name of said accused, and the accused was arrested on 28.12.2015 & thereafter, he was granted bail vide order dated 21.10.2016 and released on 24.10.2016.
2 On completion of the investigation, the chargesheet was filed U/s 363/366/376 IPC and Sec.6 of POCSO Act. Copy of charge sheet was supplied to the accused and on finding of the primafacie case, the charges U/s 363/366/376/328 of IPC & Sec.6 of POCSO Act were framed against the accused, to which, the accused pleaded not guilty and claimed trial. Accordingly, the accused was put on trial and the matter was fixed for the evidence of the prosecution.
3 In order to prove its case, prosecution has examined three witnesses.
4 The prosecutrix 'K' (presumed name) has been examined a PW1 on dated 23.09.2016 and she has refused to identify to the accused and deposed that police had not inquired from her about the present case. She has admitted that Ld. MM had recorded FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 2 of 12 her statement Ex.PW1/A and she has correctly identified her signatures at point A and B thereof. She has admitted that she had told to the Ld. MM, who had recorded her statement, that on 08.10.2015 at 4.00 pm, she had gone to Rajouri Garden Metro Station for roaming and one boy met her there & he had muffled his face with a handkerchief & he offered her biscuits. Firstly, she did not take the same, but second time she had accepted & eaten the biscuits and on eating the said biscuit, she became unconscious and when she regained her consciousness, she found herself in a room. She asked the name of the said boy, who told his names as Deepak and Dilip. She asked to the said boy to leave her at the place from where, she was taken and accordingly, he took her at the Metro Station Rajouri Garden in an auto rickshaw and left her there and she returned home and narrated about this incident to her mother, who took her in the hospital for medical examination and. Again said, firstly her mother and neighbour took her in the Police Station, when the police took her in the hospital and she was medically examined. She has admitted that GALAT KAAM was done with her, by a person, who had taken her. When she was asked as to whether it is correct that she had told to Ld. MM who had recorded her statement Ex.PW1/A that she was raped by a person, who had taken her, then she had replied that she did not remember exactly and perhaps, she had told to the said Magistrate. She had also stated that she did not know that the said person, who had taken her, was apprehended after two months. She had denied that she had identified to the said person or that on her identification, the said person (accused) was arrested. During her examinationinchief, Ld. APP for the State had sought permission to cross examine this witness, as this witness has resiled from her previous statements and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during her crossexamination by the Ld. APP for the State, FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 3 of 12 she had identified her signatures on the memo of arrest of accused which is Ex.PW1/B. She has denied that accused had taken her at Ashok Nagar, Delhi on 07.10.2015 and kept her till 09.10.2015 or that she was repeatedly raped by accused. She has correctly identified her clothes, which are Ex.P1 (collectively). She has denied that she has been won over by accused or that she has deliberately refused to identify to this accused. This witness is also crossexamined by Ld. Counsel for accused and during her cross examination by Ld. Counsel for accused, she has admitted it to be correct that she had told to the Ld. MM, who had recorded her statement Ex.PW1/A, that the boy who had taken her was fat & he had muffled face & his height was also short.
5 Today, ASI Shanti Sawroop, has been examined as PW2, who has deposed that on 08.10.2015, he was posted in the PS Khyala and working as Duty officer from 04:00 pm to 12:00 mid night. At about 10:25 pm, complainant 'MP' came in the PS and lodged the report of kidnapping of his daughter by one boy namely Sushil. Said complaint was recorded in Rojnamacha vide DD no. 64A Ex.PW2/A(OSR). On the same DD entry, FIR no.648/15 was registered, copy whereof is Ex.PW2/B bearing his signature at point A and the certificate U/s 65B to that effect is Ex.PW2/C bearing his signature at point A. Opportunity to cross examine this witness is given to ld. counsel for the accused but he has submitted that he is no more desirous to cross examine this witness, so the opportunity given to him was done NIL.
6 Whereas, the complainant i.e. father of the prosecutrix 'MP' (presumed name of father of the prosecutrix) has been examined today as PW3, who has deposed that he has three children I.e. two daughters and one son and the prosecutrix is his eldest child, who went missing on 07.10.2015. She was aged about 15 years & six months at that time. He lodged the report in Police Station Ex.PW2/A bearing his signature at point A and stated that he had not suspected any person in the complaint and also deposed that he does not FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 4 of 12 know any Sushil. He has refused to identify to accused Sushil. During her examinationin chief, Ld. APP for the State had sought permission to crossexamine the witness, as the witness has resiled from his previous statement and after hearing, this witness was declared as 'hostile' and the Ld. APP for the State was allowed to crossexamine this witness and during his crossexamination by the Ld. APP for the State, he has denied that he had doubt over accused Sushil R/o Rblock or that accused Sushil might have enticed away his daughter i.e. prosecutrix. He has also denied that he has been won over by the accused. Opportunity to cross examine this witness is given to ld. counsel for the accused. But, he has submitted that he is no more desirous to cross examine this witness, so the opportunity given to him is done NIL.
7 I have heard the Ld. Counsels for the parties.
8 After examination of PW2 & PW3 today, the Ld. APP for the State has submitted that the matter may be adjourned for examination of the remaining prosecution's witnesses, whereas, Ld. Counsel for accused has opposed the same and submitted that since, the prosecutrix & her father (complainant) have been examined & since the complainant, who is the father of the prosecutrix & the prosecutrix have failed to support the case of the prosecution, as they have failed to identify to accused Sushil, so, he has prayed for closing the evidence of the prosecution & also prayed for acquittal of the accused.
9 Since, the prosecutrix has been examined & crossexamined and the perusal of the record shows that, in the case in hand, FIR was registered on the statement of the father of the prosecutrix, wherein, it is alleged that the complainant suspects that the prosecutrix, aged about 15years & 9months, is enticed away by Sushil, whereas, the complainant 'MP' has been examined as PW2 & he has deposed that the prosecutrix is his FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 5 of 12 eldest child, who went missing on 07.10.2015. She was aged about 15 years & six months at that time. He lodged the report in Police Station Ex.PW2/A bearing his signature at point A and stated that he had not suspected on any person in the complaint and also deposed that he does not know any Sushil. He has refused to identify to accused Sushil. Whereas, the prosecutrix 'K' (presumed name) has been examined a PW1, and she has also refused to identify to the accused. So, in the considered opinion of this court, it will be futile to adjourn the matter for examination of the remaining witnesses of the prosecution. Accordingly, the evidence of the prosecution is closed by order, as, in the considered opinion of this court, no fruitful purpose would be served to examine the remaining witnesses of the prosecution, who are formal in nature, as the case of the prosecution cannot be resulted in conviction of the accused, even if remaining witnesses of the prosecution are allowed to be examined.
10 Since, nothing incriminating evidence has come on the record against the accused Sushil Gond, therefore, the statement of the accused U/S 313 Cr.P.C is dispensed with.
11 Since, Their Lordship of the Hon'ble Supreme Court was pleased to hold in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 6 of 12
12 Similarly, Their Lordship of the Hon'ble Supreme Court in case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi) and Hari Singh Vs. State (NCT of Delhi) (2012) 8 SCC 21'.
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 7 of 12 other such similar test to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
13 Their lordship of High Court of Delhi in Rameshwar Giri V. State, 211 (2014) Delhi Law Times, 508, was pleased to observe : "16. As held by the Supreme Court in AIR 1965 SC 942, S. Varadarajan V. State such an act would tantamount to 'taking'. The observations of the Apex Court in this context are as under:
"The offence of 'kidnapping from lawful guardianship' is defined thus in the first paragraph of Section 361 of the Indian Penal Code:
"Whoever taken or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship'
8. It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping.........11. It must, however, be borne in mind that there is a distinction between 'taking : and allowing a minor to accompany a guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 8 of 12 keeping of her lawful quardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
12. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to 'taking'."
"17. This version is further fortified by the fact that the victim was admittedly known to the accused as he was residing in the same street since the last 2 years. The fact that the accused was known to the victim is also admitted by both PW6 and PW7 i.e. the mother and father of the victim. PW5 had accompanied the appellant for sightseeing; they did sightseeing for one hour in Delhi; then by a TSR, the appellant took her to the railway station; people were gathered there to purchase tickets. Tickets were purchased by the appellant from the railway station from where he took her to Bihar which would be a more than one day journey. The victim stayed in the village of the appellant 23 days. She was never threatened by the persons living in that house/ 56 ladies were also present. Other persons from the village also came to meet her. The MLC of the victim also shows that there was no injury upon her person. This corroborates the argument of the Learned Counsel for the appellant that the victim was not subjected to any force.
18. This Court thus necessarily draws the conclusion that the victim was a consenting party with the accused. The offence of rape as defined under Section 375 of the IPC (unamended) is not made out as for the purposes of rape to qualify as a minor, the victim should be less than 16 years. As noted supra, the victim was aged 15 years & 9 months on the date of the offence i.w. just about three months short of the age of 16. Being in the age of discretion; this Court is of the view that she was conscious of her act in accompanying the accused and it cannot be said to be an act of force. The accused is entitled to an acquittal for the offence under Section 376 of the IPC. He is accordingly acquitted of the said charge.
FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 9 of 1214 Since, in case in hand, the FIR was registered on the statement of the father of the prosecutrix i.e. PW2, wherein, he has suspected that accused Sushil has induced & kidnapped away to the prosecutrix, who is about 15years & 9months of age, but, at the time of his examination in this Court, he has deposed that he had not suspected on any person in the complaint and also deposed that he does not know any Sushil. He has refused to identify to accused Sushil. Whereas, the prosecutrix 'K' (presumed name) has been examined a PW1, and she has also refused to identify to the accused and deposed that police had not inquired from her about the present case. She has denied that she had identified to the accused or that on her identification, the accused was arrested. Thus, the testimonies of the prosecutrix and the complainant are found to be inconsistent to their previous statements on the material points, as the complainant & the prosecutrix have refused to identify to the accused, so their testimonies are suspicious.
15 Their lordship of Supreme Court in case State of Rajasthan V. Raja Ram, V (2003) SLT 45III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 10 of 12 arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. IF the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484.
16 So, taking into consideration the material inconsistencies & contradictions in the contents of the FIR & the testimonies of PW1 & PW3, this court is inclined to hold that the testimonies of PW1 & PW3 are inconsistent, suspicious, unreliable & untrustworthy, as PW1 & PW3 have refused to identify to this accused, so, the same do not inspire any confidence, and the benefits of doubt is liable to be given to the accused. Since, the charges against this accused were framed u/s 363/366/328/376 of IPC & Sec.6 of POCSO Act, and the prosecutrix & the complainant refused to identify to this accused. Therefore, I am inclined to hold that the prosecution has failed to prove that accused has committed the offences punishable u/s 363/366/328/376 of IPC & Sec.6 of POCSO Act beyond reasonable doubt. Accordingly, accused Sushil Gond is acquitted of the charges FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 11 of 12 framed against him. The accused Sushil Gond is ordered to furnish the bail bond in the sum of Rs.50,000/ with one surety of like amount, as per the provision of Section 437(A) of Cr.P.C, for next six months to ensure his presence in the Hon'ble appellate court and on filing of bail bond and surety bond, the file be consigned to the Record Room.
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 24.01.2017 Additional Sessions Judge01(West)
Special Court Under POCSO Act / THC
24.01.2017
FIR No.648/2015 PS Rajouri Garden State Vs. Sushil Gond Page 12 of 12