Delhi District Court
State vs Dr.Pawan Kumar. -:: Page 11 Of 11 ::- on 23 August, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL JUDGE (POCSO ACT),
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 58130/2016
Old Sessions Case Number : 243/2016.
State
versus
Dr.Pawan Kumar,
Son of Mr.Ram Prashad
Resident of Flat no.423 B, Phase I, Pocket 2,
Mayur Vihar, Delhi.
First Information Report Number : 431/2016.
Police Station : Moti Nagar
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code
and section 6 / 10 of the POCSO Act.
Date of filing of the charge sheet : 08.10.2016.
Arguments concluded on : 23.08.2017.
Date of judgment : 23.08.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State
Accused has been produced from judicial custody.
Mr.Narveer Dabas, counsel for the accused.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Investigation Officer SI Sushma is also present.
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JUDGMENT
New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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1. Dr.Pawan Kumar the accused, has been charge sheeted by Police Station Moti Nagar for the offences under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 / 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Dr.Pawan Kumar, has been prosecuted on the allegations that on 07.09.2016, when the prosecutrix (who is a minor girl & who was born on dated 04.05.2003) came to accused for her treatment in Acharya Bhikshu hospital, he with sexual intention, had repeatedly lifted the T-shirt of the prosecutrix and also put down her legging and underwear up to her thighs and knees; he had molested her breast repeatedly, also touched her stomach and vagina repeatedly and kissed her lips; and he had repeatedly inserted his finger in the vagina of the prosecutrix. The name, age and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
3. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 08.10.2016.
4. After hearing arguments, charge for offences under sections 354 B New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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of the IPC, under section 10 of the POCSO Act, under section 354 of the IPC, under section 6 of the POCSO Act and under section 376 of the IPC was framed against accused Dr.Pawan Kumar vide order dated 20.12.2016 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined as many as two (03) witnesses i.e. the prosecutrix Ms.X as PW1, her mother Ms.Y as PW2 and Mr.Lal Ji Pandey (Phoofa / husband of paternal aunt-bua) as PW-3. Fictitious identities of Ms.X and Ms.Y are given to the prosecutrix and the mother of the prosecutrix respectively, in order to protect the identity of the prosecutrix.
6. The evidence of the prosecutrix Ms.X as PW1 has been recorded in the Vulnerable Witness Room in camera. Her mother Ms.Y as PW2 has also been examined in camera.
7. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the prosecutrix. Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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pertaining to sexual offences and child witnesses" have been followed.
8. Preliminary inquiries were made from the prosecutrix and it appears that she is well oriented and is capable of giving rational answers to questions. She understands the sanctity of oath. The prosecutrix appears to be giving her evidence voluntarily and without any threat, pressure, fear, influence or coercion.
9. The prosecutrix Ms.X as PW1 has seen accused Dr.Pawan Kumar, who is sitting in a separate enclosure through the one way visibility window on her screen. She has identified the accused Dr.Pawan Kumar who was treating her. She has deposed that "He has not done anything wrong with me." She has also deposed that "I pray that Dr. Pawan Kumar may be acquitted as he has not done anything wrong with me. The culprit was a tall man who had come inside the room of Dr. Pawan Kumar and his face was covered with a cloth."
10.As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- examined her. She has been cross examined at length but nothing material for the prosecution has come forth.
New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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11.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that Dr. Pawan Kumar has not committed anything wrong against me. It is correct that he is innocent."
12.The mother of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused and had turned hostile and retracted from her earlier statement. She has deposed that "The prosecutrix did not allege anything against the accused Pawan Kumar to me. Vol. She informed that one tall person came in the room of Dr. Pawan and he had molested her. She further informed that she could not see the face of that tall person as the same was covered with the cloth piece."
13.The mother of the prosecutrix has been cross examined by the Additional Public Prosecutor for the State and nothing material for the prosecution came forth. She has deposed that "It is wrong to suggest that I told the police the manner in which the accused had misbehaved with the prosecutrix as same was informed to me by the prosecutrix. It is wrong to suggest that this statement (Mark X3) was made by me before the police. It is wrong to suggest that accused Pawan Kumar present in the Court today is the same person who molested the prosecutrix. It is wrong to suggest that I have deposed falsely as I have been won over by New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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accused."
14.PW-3, Mr. Lal Ji Pandey who is (Phoofa/husband of paternal aunt-
bua) has also not deposed anything incriminating against the accused.
15.All the witnesses PWs 1, 2 and 3 have not deposed an iota of evidence of accused Dr.Pawan Kumar that he committed the offences of sexual harassment, committing penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix.
16.In the circumstances, as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2) as well as her Phoofa/husband of paternal aunt-bua (PW3), who are the star witnesses, have turned hostile and have not supported the prosecution case and more importantly have not assigned any criminal role to the accused and have not deposed anything incriminating against him, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are formal or official in nature. The precious Court time should not be wasted in recording the evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses and the most material witnesses, have not supported New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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the prosecution case and are hostile.
17.The statement under section 313 of the Cr.P.C of the accused Dr.Pawan Kumar is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2), who are the star witnesses, are hostile and nothing material has come forth for the prosecution in their cross examination by the Additional Public Prosecutor for the State. Even PW3 has not deposed anything incriminating against the accused.
18.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
19.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her mother Ms.Y (PW2) as well as her Phoofa/husband of paternal aunt-bua (PW3), who are the star witnesses and the material witnesses of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witnesses have retracted from their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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committed any offence against the prosecutrix. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
20.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
21.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
22.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
23.Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against accused Dr.Pawan Kumar. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
24.Consequently, no inference can be drawn that the accused Dr.Pawan Kumar is guilty of the charged offences under section 354 B of the IPC, under section 10 of the POCSO Act, under section 354 of the IPC, under section 6 of the POCSO Act and under section 376 of the IPC.
25.There is no material on record to show that on unknown dates and time but for the last few days prior to the registration of the FIR on 07.09.2016, when the prosecutrix (who is a minor girl and who New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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was born on dated 04.05.2003) came to accused for her treatment in Acharya Bhikshu hospital, he with sexual intention, had repeatedly lifted the T-shirt of the prosecutrix and also put down her legging and underwear up to her thighs and knees; he had molested her breast repeatedly, also touched her stomach and vagina repeatedly and kissed her lips; he had molested her breast repeatedly; and he had repeatedly inserted his finger in the vagina of the prosecutrix.
26.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Dr.Pawan Kumar for the offences of sexual harassment, committing penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix. The evidence of the witnesses makes it highly improbable that such incidents ever took place. The witnesses have not deposed an iota of evidence that accused Dr.Pawan Kumar has committed any of the charged offences.
27.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Dr.Pawan Kumar for the offences under section 354 B of the IPC, under section 10 of the POCSO Act, under section 354 of the IPC, under section 6 of the POCSO New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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Act and under section 376 of the IPC.
28.Consequently, accused Dr.Pawan Kumar is hereby acquitted of the charges for the offences of offences of sexual harassment, committing penetrative sexual assault, assaulting, outraging the modesty and raping the prosecutrix punishable under section 354 B of the IPC, under section 10 of the POCSO Act, under section 354 of the IPC, under section 6 of the POCSO Act and under section 376 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
29.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
30.Accused Dr.Pawan Kumar is in judicial custody. He be released forthwith, if not required in any other case.
31.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
32.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-
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33.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 23rd day of August, 2017. Additional Sessions Judge-01, Special Judge (POCSO Act), West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 58130/2016 Old Sessions Case Number : 243/2016.
First Information Report Number : 431/16. Police Station : Moti Nagar.
Under sections 354A / 354B / 354 / 376 2 (F) of the Indian Penal Code. and section 6 / 10 of the POCSO Act.
State versus Dr.Pawan Kumar. -:: Page 11 of 11 ::-