Delhi District Court
Cis Sessions Case No. 7740/16 " State vs . Nagender Mehta" Page 1 Of 15 on 18 December, 2017
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SESSIONS JUDGE01, SPECIAL COURT
(POCSO), SOUTH, NEW DELHI
CIS Sessions Case No. 7740/16
FIR No. 2186/15
Police Station: Malviya Nagar
In the matter of:
State
VERSUS
Nagender Mehta
S/o Sh. Bal Krishan Mehta
R/o House No. 39, kailash Colony,
New Delhi
Permanent Address:
Newari, PO Panch Menda,
PS Tavaiya District, Chappra Bihar.
............ Accused
Date of Institution : 12.05.2016
Date of Reserving judgment : Not reserved
Date of pronouncement : 18.12.2017
CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 1 of 15
JUDGMENT
1. In the present case, accused Nagender Mehta S/o Sh. Bal Krishan Mehta has been charged and is facing trial for the commission of offences punishable under sections 376 (2) of Indian Penal Code (in short "IPC") and section 6 of Protection of Children from Sexual Offences Act (in short "POCSO Act"), 2012 on the allegations that he committed rape and aggravated penetrative sexual assault upon a minor girl, namely, 'M' (real name withheld in order to conceal her identity), aged about 13 years (hereinafter referred to as 'victim/prosecutrix') repeatedly on several occasions.
2. Brief facts of the case as mentioned in the chargesheet are that on 03.12.2015, the complainant 'UD' (name withheld in order to conceal her identity) came to the police station and gave his complaint wherein he has stated that his daughter namely, M, (the victim) has gone missing since 01.12.2015 at 3.30 PM and some unknown person has taken away his daughter after enticing her and legal action may be taken against him.
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3. On the aforesaid complaint of the father of the victim, the FIR in question was registered on 03.12.2015 u/s 363 of IPC and the investigation in the case was commenced.
4. During investigation, efforts were made to trace out the victim and on 08.01.2016, at the instance of the mother of the victim, the victim was recovered from the Servant Quarter of House No. 39, Kailash Colony, GKI, New Delhi from the possession of the accused Nagender Mehta. Statement of the victim u/s 161 Cr.P.C. was recorded and her medical examination was got conducted, though she refused for her gynae medical examination. Accused was arrested in the present case and section 366/376 IPC and section 6 of POCSO Act were added to the present case FIR. Statement of the victim u/s 164 Cr.P.C. was also got recorded and her counselling was got conducted through NGO. Medical examination of the accused was got conducted and his exhibits were taken, seized and deposited in the Maalkhana. Age documents of the victim were collected from the school and verified according to which victim is 14 years of age.
5. After completion of investigation, on the basis of the CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 3 of 15 statement of the witnesses and documents collected, challan was prepared under section 363/366/376 of IPC and section 6 of POCSO Act and put up before the court on 12.05.2016 for trial.
6. Charge for the commission of offences punishable under section 376 (2) of IPC and section 6 of POCSO Act, 2012, was framed against the accused vide order dated 10.11.2016, to which, the accused pleaded not guilty and claimed trial, and the case was proceeded for prosecution evidence.
7. The Prosecution, out of 15 witnesses cited in the list of witnesses, has examined 3 witnesses so far in order to prove its case including the victim/prosecutrix as PW1 and her father 'UD' who is complainant in the presnet case as PW3.
8. Ld. Defence Counsel has submitted that PW1 the prosecutrix/victim 'M' and her father who is complainant in the present case are the main and star witnesses of the prosecution and both of them have already been examined as PW1 and PW3. He has further submitted that from the testimonies of both the witnesses, no incriminating evidence as charged against the accused has come on CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 4 of 15 record and therefore, to save the precious time and resources of the court, the further proceedings in the present case may be stopped, and the accused may be acquitted of the offences charged against him.
9. On the other hand, Ld. Special Public Prosecutor has opposed the submissions made by the Ld. Defence Counsel.
10. I have considered the submissions made on behalf of the parties and have gone through the record of the case.
11. The case of the prosecution is that the accused committed rape and aggravated penetrative sexual assault upon the victim repeatedly on several occasions between 03.12.2015 to 08.12.2015. In order to prove its case, the prosecution has examined three witnesses so far including the victim as PW1, out of 15 witnesses cited in the list of witnesses. However, the victim when appeared in the witness box has not supported the case of the prosecution. It is therefore pertinent to evaluate the testimony of PW1 (the victim/ prosecutrix) who is the main and crucial witness of the prosecution, to decide the fate of the case.
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12. PW1 the victim has deposed in her examinationinchief that accused Nagender met her where he was working in the neighbourhood as a cook and in the same building she was also working as maid. They fell in love with each other. She disclosed the fact to her parents and showed the willingness to the parents but they refused because the accused hailed from Bihar. She has further deposed that her father called the accused at their house for discussing the things and when the accused came to their house, her father started calling him thief and gave beatings to him. Thereafter, she asked the accused to run away. She has further deposed that her parents took her to her native place at Kolkata where they were pressuring her to marry with some other person to which she was not willing to and she refused many of them. Thereafter, her parents brought her back to Delhi and she called the accused and told him to come to her but he did not come. She herself went to the accused and told him that she did not want to stay with her parents and she left the home along with the accused on her own without any information to her parents. She has further deposed that she did not remember the date, but in the CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 6 of 15 month of December 2015, she left the home with the accused. The victim has further deposed that they went to the house of relative of accused where they stayed for 810 days and thereafter they went to the servant quarter of the place of the accused where he was earlier working. She further deposed that when they were living together, the accused did not do any wrongful act with her and they got married on 03.01.2016 with her own free will and volition. They were apprehended by the police there. PW1 the victim has admitted that she made the statement u/s 164 Cr.P.C. Ex. PW1/A to the Magistrate.
13. PW1 the victim was also put some leading questions by Ld. Special Prosecutor wherein she though denied having made any statement dated 08.01.2016 Mark C to the police but she admitted that she had told the police that she knew the accused for the last one and half years and she had accompanied him earlier also and stayed with him. She further admitted that in her statement Mark C, she told to the police that on 03.12.2015, they solemnized the marriage in the Mandir without the assistance of priest and the accused applied sindoor on her forehead and accepted her as wife and she also accepted him as her CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 7 of 15 husband. She also admitted that in her statement Mark C she stated to the police that the accused made physical relationship with her consent many times. She denied the suggestion that at the time of the incident, she was 13 years old. She further denied the suggestion that her parents know her real date of birth and she is deliberately enhancing her age as 19 years. Voluntarily, she stated that her parents deliberately gave her age as 13 years to falsely implicate her and the accused. She denied the suggestion that she is making incorrect statement regarding her age at the instance of the accused to save him.
14. In her crossexamination by Ld. Defence Counsel, PW1 the victim stated that her date of birth is 03.01.1997 and when she was admitted in first class, she was 10 years old. She further stated that she had not given any statement to the police and the police had got signed fivesix documents in blank from her. She further stated that she was not called by the police in the police station nor the police had taken her to any temple or any room. She further stated that she had not stated anything to the police about the temple or room. She admitted that no physical relation has been established between her CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 8 of 15 and the accused. She further admitted that accused had not taken her anywhere. She further admitted that due to beatings given by her parents, she had left the house on her own. She also admitted that due to love affair between her and the accused, her parents have falsely implicated him in the present case.
15. PW2 is Ct. Naresh who took the accused to AIIMS Hospital for his medical examination on 09.01.2016. He deposed that after medical examination, doctor handed over to him MLC and exhibits of the accused which he handed over to IO after coming back at the PS and IO took the same into possession vide seizure memo Ex. PW2/A.
16. PW3 is complainant 'UD' (the father of the victim) who deposed in his examinationinchief that his victim daughter was missing from their house on 1.12.15 at about 3.30PM. At that time, he did not know anything about the missing of his daughter. He had made a complaint to the police in this regard which is Ex PW3/A and on that basis,the FIR was registered. He further deposed that on 8.1.2016 his daughter was recovered from Greater Kailash, servant quarters, with CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 9 of 15 the accused Nagender. He reached at the house of Nagender along with police officials and at that time, his wife was also along with them. He further deposed that after recovery of his daughter, the recovery memo in this regard was prepared which is Ex PW3/B. Thereafter, his daughter was handed over to his wife by the police.
17. In his crossexamination by Ld. Defence Counsel, PW3 (the father of the victim) stated that on his dictation, police had written his complaint. He further stated that he is illiterate and can only sign. Police had read over his complaint to him. He further stated that on the day of missing of his daughter, he had not made a call at 100 number. He stated that he made a complaint in writing on 3.12.15 to police. He denied the suggestion that at the time of incident, his victim daughter was major. He further denied the suggestion that at that time on 08.01.2016, his victim daughter was not recovered in his presence from Greater Kailash. He further denied the suggestion that police had obtained his signatures on some blank documents.
18. As stated above, PW1 the victim 'M', is the star and crucial witness of the prosecution, but from her testimony as discussed CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 10 of 15 hereinabove, it is apparent that she has not supported the case of the prosecution and no such incriminating evidence as charged against the accused has come on record against him. The another material witness examined by the prosecution as PW3 is father of the victim on whose complaint the present FIR was registered. However, from his testimony also, it is not proved that his victim daughter was subjected to rape or aggravated penetrative sexual assault by the accused as charged against him. The other witness examined by the prosecution PW2 Ct. Naresh is only a formal witness.
19. In the facts and circumstances of the case, since no incriminating evidence has come on record against the accused of rape or aggravated penetrative sexual assault from the testimonies of the victim and the complainant who are the material witnesses of the prosecution, it will be a futile exercise to examine remaining witnesses. Though mother of the victim is yet to be examined who accompanied her husband i.e. the complainant to the place from where the victim was recovered, but since the victim while appearing in the court as PW1 has not deposed anything against the accused, CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 11 of 15 examination of the mother of the victim, who was not a witness to the offences allegedly committed by the accused, will be of no help to the prosecution. Similarly, other witnesses to be examined are formal witnesses in nature with regard to medical examination of the victim and of the accused, age proof of the victim, recording of statement of the victim u/s 164 Cr.P.C. etc and no fruitful purpose would be served by examining them as none of them is an eyewitness to the alleged incident. I find substance in the argument of Ld. Defence Counsel that continuing with the trial any further, will only result in wastage of time and resources, and there will be no impact on the result of the trial. Hence, the prosecution evidence is closed and the statement of the accused u/s 313 Cr.P.C is dispensed with.
20. From the aforesaid testimony of PW1 the victim, it is apparent that she was not subjected to rape or aggravated penetrative sexual assault by the accused. She categorically stated in her evidence that she herself had accompanied the accused out of her own free will and consent and when she was living with the accused, he did not do any wrongful act with her. She also stated that her parents were not CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 12 of 15 happy with her relationship with the accused and therefore, they have falsely implicated the accused in the present case. In her cross examination also, she has affirmed her aforesaid statement and categorically stated that no physical relation has been established between her and the accused and further that due to love affair between her and the accused, her parents have falsely implicated the accused in the present case.
21. It is also to be noted that before appearing as a witness in the court as PW1, the victim in her statement recorded u/s 164 Cr.P.C had also absolved the accused from the offence of rape. In her statement u/s 164 Cr.P.C., she stated that, "she loves accused Nagender and wants to marry him. Her parents were against her marriage with the accused. No one has committed any wrongful act with her. She does not want to say anything else."
22. Similarly, PW3 (the father of the victim) though deposed in his testimony that his victim daughter was recovered from the possession of the accused but he did not state that his victim daughter told him that she was raped by the accused. CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 13 of 15
23. There is also no medical evidence to support the case of the prosecution that victim was subjected to rape as during investigation, the victim had refused for her gynae medical examination and it also suggests that there was no sexual intercourse between the victim and the accused.
24. In the overall facts and circumstances of the case and keeping in view the testimony of PW1 the victim and PW3 the complainant (the father of the victim), there being no incriminating evidence against the accused Nagender Mehta, he is not found guilty of committing the offences punishable under sections 376 (2) of IPC and section 6 of POCSO Act as charged against him and he is entitled to be acquitted. Accordingly, accused Nagender Mehta is acquitted of the said offences. However, he is required to furnish bail bond under section 437A of Cr.P.C in the sum of Rs.25,000/ with one surety of like amount. Bail bond u/s 437A Cr.P.C. furnished by him. Same is accepted and shall remain in force for a period of six months. CIS Sessions Case No. 7740/16 " State Vs. Nagender Mehta" Page 14 of 15
25. File be consigned to Record Room, after necessary compliance.
Pronounced in the open Court (Balwant Rai Bansal) on 18th December, 2017. ASJ01/Special Court (POCSO) South District:Saket Courts:
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