Delhi District Court
Sc No. 59010/16 State vs . Santosh Etc on 26 October, 2017
SC No. 59010/16 State Vs. Santosh etc
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL JUDGE : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 59010/16)
Unique Identification No. DLNT010030332016
FIR No. 1036/15
Police Station Shahbad Dairy
Under Section 354/354B/323/376/34 IPC
& 4/12 POCSO Act
State V/s 1. Santosh.
S/o Vrindavan
R/o A169, PhaseII, Metro Vihar
Holambi Kalan, Delhi.
2. Anil
S/o Vrindavan
R/o A169, PhaseII, Metro Vihar
Holambi Kalan, Delhi.
3. Monu
S/o Hari
R/o A511, PhaseII, Metro Vihar
Holambi Kalan, Delhi.
......Accused
Date of institution 13.05.2016
Date of arguments 26.10.2017
Judgment Pronounced on 26.10.2017
Decision Acquitted
Judgment : FIR No. 1036/15 page 1 of 14
SC No. 59010/16 State Vs. Santosh etc
J U D G M E N T
1.The accused Santosh and Anil are facing trial in the present case on allegations of having outraged the modesty and committed gang penetrative sexual assault upon the prosecutrix L (identity withheld), aged about 17 years, and having beaten her, whereas accused Monu is facing trial in the present case on allegations of having wrongfully restrained and outraged the modesty of prosecutrix L (identity withheld), aged about 17 years.
2. The facts in brief, which are borne out from the record are that the prosecutrix L D/o Mr. GS, was residing in Metro Vihar, Holambi Kalan, alongwith her parents, and was studying in 12 th class in Sarvodya Kanya Vidhalya, Metro Vihar. On 30.08.2015 at about 9.30 PM, prosecutrix had a quarrel with one Ranjeeta, as her brothers i.e. accused Anil and Monu used to pass vulgar comments and make vulgar gestures towards the prosecutrix. On the said date, the prosecutrix had gone to the house of accused Anil to complain against him, and after a quarrel took place there, she slapped the accused Anil. Thereafter, accused Anil hit her on her breast and tore her wearing clothes. Ranjeeta hit the prosecutrix on her head. In the meantime, mother and sister of the prosecutrix also reached there to rescue her, but they were also beaten up by the accused Santosh, who is the elder brother of accused Anil. Thereafter, when one day the prosecutrix was returning from her school, on the way, the accused Monu caught hold of her hand and threatened to beat her.
Judgment : FIR No. 1036/15 page 2 of 14 SC No. 59010/16 State Vs. Santosh etc
3. On the other hand, a complaint was lodged with the police by the said Ranjeeta D/o Vrindavan, which was reduced into writing by the police vide DD No. 36 PP. On receipt of the DD No. 36 PP, IO alongwith Ct. Anand reached at M.V. Hospital, where said Ranjeeta and her mother were got medically examined. After recording of the statement of said Ranjeeta, a separate FIR bearing no. 1018/15 was registered, and after registration of the said FIR bearing no. 1018/15, when the IO of the said case went to arrest the accused, then prosecutrix L and her mother JD told the IO that on 30.08.2015 in the quarrel, they have also sustained injuries. IO of the said case, called the W/HC Sunita at the spot and got the prosecutrix and her mother medically examined vide MLC No. 3682/15 and MLC No. 3681/15 respectively, wherein the prosecutrix herein alleged about a sexual assault upon her. NGO official was called and after the counselling of the prosecutrix, her statement / complaint was recorded. Age proof of the prosecutrix, which showed her date of birth being 10.12.1997, was obtained, and on the basis of the statement of the prosecutrix, the instant case FIR bearing no. 1036/15 was registered u/s 354/354B/323/34 IPC & 12 POCSO Act and further investigation of the case was assigned to ASI Ranbir Singh.
4. On 09.09.2015, prosecutrix Laxmi was produced before the Ld. MM for getting her statement u/s 164 CrPC recorded. Ld. MM recorded the statement of the prosecutrix 164 CrPC, wherein she deposed that on 30.08.2015 at 9.00 PM, when she was going to bring some household articles, accused Anil and Monu, who are residing in the same gali, came to her and abused her. Accused Anil firstly put his hand on the shoulder Judgment : FIR No. 1036/15 page 3 of 14 SC No. 59010/16 State Vs. Santosh etc of the prosecutrix and later inserted his finger in her private part. Prosecutrix pushed the accused Anil and in the meantime, accused Santosh, who is also the brother of the accused Anil, also came there and gave a Danda blow on the head of the prosecutrix. Accused Santosh opened the zip of his pant and started inserting his private part in the mouth of the prosecutrix. On hearing the noise, the mother of the prosecutrix also reached there, but the accused Santosh gave her a kick blow on her stomach. The sisters of the prosecutrix were also given kick blows by accused Anil. In the night time, accused Anil and his family members, having knife and other weapons in their hands, came to the house of the prosecutrix but she and her family did not open the door. On the basis of the statement of the prosecutrix u/s 164 CrPC, section 376 IPC and section 4 POCSO Act were added and further investigation of the case was assigned to WSI Darshna, who tried to trace out the accused persons, but in vain. On 05.02.2016, all the three accused persons were admitted to bail and as per directions of the Hon'ble High Court, accused Santosh and Anil reported in the PS for investigation. On the pointing out of the victim, accused Santosh and Anil were formally arrested and later released on bail. During the course of investigation, the date of birth of third associate Monu was found to be 01.04.1997 and he being a JCL, was apprehended and produced before JJB, but JJB declared Monu to be an adult offender. Accordingly, after completion of the investigation, the challan was filed against all the three accused in the court u/s 354/354B/323/376/34 IPC & 12/4 POCSO Act.
5. On appearance, the accused persons were supplied with the Judgment : FIR No. 1036/15 page 4 of 14 SC No. 59010/16 State Vs. Santosh etc copies of the chargesheet and other documents. After perusal of the chargesheet, the documents, and hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused persons, since primafacie case against the accused persons was made out, accused Santosh and Anil were charged for the offences punishable 354/354B/376D/323/34 IPC and u/s 6 POCSO (Protection of Children from Sexual Offences) Act, 2012, and accused Monu was charged for the offences punishable u/s 341/354A/34 IPC and u/s 8 POCSO (Protection of Children from Sexual Offences) Act, 2012, on 01.09.2016, to which all the three accused persons pleaded not guilty and claimed trial.
6. To substantiate its case, the prosecution examined the prosecutrix L, who disclosed her age at the time of her examination in the court i.e. on 09.12.2016, to be 18 years, as PW 1. She deposed that on 30.08.2015 at about 99.30 PM, a quarrel took place between them and their neighbour Ranjeeta, and in the said quarrel, brothers of Ranjeeta namely Santosh, Monu and Anil, who are accused herein, came there and she had a hot exchange of words with them. She further deposed that due to said altercation and on the instigation of some persons present there, she filed the present complaint against the accused person. She admitted her signature on her statement Ex. PW1/A, and her statement u/s 164 CrPC recorded before the Ld. MM Ex. PW1/B. She further deposed that during investigation, police obtained her signature on some papers.
7. Since the witness / PW 1 had resiled from her earlier statement, Judgment : FIR No. 1036/15 page 5 of 14 SC No. 59010/16 State Vs. Santosh etc on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 1 denied that she had levelled specific allegations against the accused Anil, Santosh and Monu in her complaint Ex. PW1/A, to the effect that accused Monu and Anil used to pass filthy comments and make gestures towards her or that accused Anil slapped her and put his hand on her breast and tore her wearing clothes. PW 1 further denied that in her complaint Ex. PW1/A, she has stated that the accused Anil and Santosh had kicked at the stomach of her sister and mother or that the accused persons had earlier also caught hold of her hand and threatened her. Though she admitted that the complaint Ex. PW1/A is in her handwriting, but volunteered that she had written the same on the instigation of persons of their locality, without applying her mind properly. She further volunteered that she was instigated by the police officials to depose as per her previous statement, which was recorded by the police. She further deposed that whatever she had deposed in her examination in chief, are the true facts. She denied that she had deposed true facts in her statement Ex. PW1/B, which was recorded by the Ld. MM. She further denied that she again joined the investigation on 05.09.2015 or that at his instance police inspected the spot and prepared the site plan. She further denied that her statement Ex. PW1/C was recorded by the police. She further denied that accused Santosh was arrested on her instance, though she admitted her signature on the arrest memo of accused Anil and Santosh, which are Ex. PW 1/D and PW1/E respectively. She denied the suggestion that she had colluded with the accused persons and in order to save them in this case, she had Judgment : FIR No. 1036/15 page 6 of 14 SC No. 59010/16 State Vs. Santosh etc intentionally changed her version and was deposing falsely.
8. Ms. P, sister of the victim L entered the witness box as PW 2 and deposed that they are six sisters and one brother. She further deposed that she had gone to her parental home to celebrate the festival of Raksha Bandhan and on 30.08.2015 at about 9.30 PM, on hearing noise, she alongwith her sister P and mother came outside and saw that a number of public persons were gathered near their house, as some quarrel had taken place. She further deposed that her sister victim L and her mother received injuries in the said quarrel but did not know as to who had caused injuries to them.
9. Since the witness / PW 2 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her cross examination by the Ld. Addl. P.P. for the State, PW 2 denied that after coming out of their house, she saw that their neighbours namely Bhawani alongwith her daughter Ranjeeta, her sons Santosh and Anil and one Monu were beating her sister L or that when they tried to intervene to save victim L, all the said persons also gave beatings to them. She denied the suggestion that the accused persons and their associates caused injuries on the head of her mother. She even denied having given any statement to the police. She denied that later her sister victim L told them that accused Monu had caught hold of her hand, made filthy gestures towards her, had pressed her breast and tore her wearing shirt. She further denied that her sister L told her that accused Anil had inserted his finger in her private part.
Judgment : FIR No. 1036/15 page 7 of 14 SC No. 59010/16 State Vs. Santosh etc
10. Ms. P another sister of the victim, entered the witness box as PW3 and deposed on the same lines as PW 2 had deposed. Her testimony was verbatim to the testimony of PW 3.
11. PW 4, Mrs. J mother of the victim L (inadvertently mentioned as sister of victim L while recording her testimony), also deposed on the same lines as her daughters i.e. PW 1 to PW 3 have deposed, in her deposition i.e. in her examination in chief as well as her cross examination by the Ld. Addl. P.P. for the State.
12. IO ASI Kusum Lata entered the witness box as PW 5 and deposed that on 17.02.2016, accused Anil came to the PS, and on the identification of the victim L, she arrested the accused Anil vide arrest memo Ex. PW1/D and he was released on bail in view of the order of the Hon'ble High Court. She further deposed that on 18.02.2016, accused Santosh came to the PS and on the identification of victim L, she arrested the accused Santosh vide arrest memo already Ex. PW1/E and later released him on bail. She further deposed that on 30.04.2016, accused Monu was arrested from PP Metro Vihar vide arrest memo Ex. PW5/A, and later released him on bail. During the course of investigation, she collected the age proof of the victim as well as accused Monu, recorded the statements of the witnesses and filed the challan of the present case in the court.
13. The victim as well as her sisters and mother, who were cited as Judgment : FIR No. 1036/15 page 8 of 14 SC No. 59010/16 State Vs. Santosh etc the material witnesses of the occurrence, by the prosecution, did not support the prosecution case and resiled from their previous alleged statements and complaint. Even on being cross examined by the Ld. Addl. P.P. for the State, their stand remained consistent that the accused persons have neither sexually assaulted the victim L nor have the accused persons beaten them. Ld. Addl. PP for the State stated that there is no other incriminating evidence, which would connect the accused persons with the offences, they have been charged with and therefore recording of further prosecution evidence was not necessitated and accordingly PE was closed.
14. Since there was no incriminating evidence against the accused, the recording of statement of accused u/s 313 CrPC was dispensed with.
15. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Sh. Vikesh Rathi, Ld. Counsel all the three accused persons, scrutinized the evidence adduced by the prosecution and have gone through the record.
16. Age of the Victim: In order to ascertain the age of the victim L, the prosecution collected and relied upon the school record of the victim L. The prosecution has placed on record the Certificate issued by the Principal, M.C. Primary, School, Metro Vihar, Pocket 8, Holambi Kalan, Delhi82, where the victim L was studying, and as per the said certificate, the date of birth of the victim L is 10.12.1997. The attested copy of the admission / withdrawal register maintained in the said school, and the attested copy of the affidavit submitted by the mother of the victim L, at Judgment : FIR No. 1036/15 page 9 of 14 SC No. 59010/16 State Vs. Santosh etc the time of admission of victim in the said school, have also been placed on record, which also reveal the date of birth of the victim L being 10.12.1997. The defence has not disputed the age of the victim in any manner. Therefore, relying upon the school record place on record by the prosecution, it is accepted that the date of birth of victim L is 10.12.1997. Accordingly, it is held that on the date of alleged incident i.e. 30.08.2015, the victim was aged about 17 ½ years, and hence she is a "Child" within the meaning given under the POCSO Act.
17. Medical and forensic Evidence : The victim L as well as her mother were got medically examined at Maharishi Valmiki Hospital on 04.09.2015. As regards the MLC of victim L is concerned, there is no mention about any injury having been sustained by the said victim L, and therefore no opinion as regards the nature of injury is present on the MLC. However, there is an observation about the said victim L having stated that she was having pain in her head. As regards the second alleged injured Mrs. JD is concerned, her MLC also finds mentioning by the doctor concerned that no fresh external injury is seen. But as there was a complaint about physical assault upon the said patient, in the Column of Nature of Injury, the word Simple has been mentioned by the doctor concerned. It is, therefore, clear that there is no medical evidence on record as regards either of the said two alleged injured persons having sustained any injury or beatings.
18. As far as the sexual assault is concerned, the victim as well as her mother refused for the internal medical examination of the victim L, Judgment : FIR No. 1036/15 page 10 of 14 SC No. 59010/16 State Vs. Santosh etc and to this effect an endorsement is made on the MLC of the victim L dated 21.09.2015. Since the victim refused for her internal medical examination, neither the exhibits / samples of the victim were collected nor were the same sent to FSL for expert opinion. Thus, there is no sufficient medical evidence on record, to corroborate and establish that the alleged sexual assault, if any, committed upon her.
19. Testimony of the victim and other material witnesses: The victim who entered the witness box as PW 1, though correctly identified all the three accused persons, as their neighbour and with whom a quarrel took place with the family of the victim, but stated that due to the said altercation and hot exchange of words between them, she had filed the present complaint against the accused persons, though she was not sexually assaulted by any of the accused persons. Though the victim narrated about a quarrel having taken place between her family and the accused persons, but she kept mum regarding any sexual assault having been committed upon her by the accused persons, nor has she disclosed about any beatings having been given to her or her mother or her sisters by accused Santosh and Anil. She further went ahead to explain that on the instigation of some persons present there at the time of quarrel, she filed the present complaint against the accused persons. Despite being cross examined by the Ld. Addl. P.P. for the State she denied having made specific allegations against the accused persons of having been molested and given beatings to her and her family members, in her statement Ex. PW 1/A. Though she admitted that the complaint Ex. PW1/A was in her handwriting but volunteered that she had written the Judgment : FIR No. 1036/15 page 11 of 14 SC No. 59010/16 State Vs. Santosh etc same on the instigation of the persons of their locality, without applying her mind properly. She even deposed that whatever was deposed by her before the Ld MM in her statement u/s 164 CrPC, was on the instigation of the police officials, who stated her to depose as per her previous version. She specifically denied that the accused persons had misbehaved with her, beaten her and had torn her clothes. She even denied that since the matter has been compromised between them, in order to save the accused persons, she was deposing falsely.
20. Similar was the tenor of the testimony of sisters and mother of the victim, who were examined as PW2, PW 3 and PW 4 respectively. All the said three witnesses though deposed that they came to know about a quarrel of the victim L having taken place and she having received injuries, but all of them showed their ignorance as to who had caused injuries to her. To a specific suggestion put to all the said three witnesses, that the said injuries were caused to victim L and her mother by the accused persons, they all denied the involvement of accused persons in the said beatings having been given to the victim L and her mother. All the said witnesses also denied that the victim L had told them that accused Monu had caught hold her hand or that accused Anil had inserted his finger in her private part. All the said witnesses also denied the suggestion put to them by the Ld. Addl. P.P. for the State that the victim L told them that accused Santosh tried to insert his private part in her mouth.
21. As such, the victim herself as well as her sisters and mother, who Judgment : FIR No. 1036/15 page 12 of 14 SC No. 59010/16 State Vs. Santosh etc were the only material witnesses, on whose testimony, the case of the prosecution was hinging, though supported the case of the prosecution that a quarrel took place wherein victim L and her mother received injuries but all of them did not ascribe any role to the accused persons in the said quarrel or they having given beatings to them or having misbehaved with the victim L, and all of them have specifically denied that the accused persons had done any wrong act with the victim L, and have given a clean chit to all the accused persons. PW 1 further went ahead to depose that the instant complaint was lodged by her on the instigation of some persons present there.
22. All the star witnesses examined by the prosecution, on which the case of the prosecution was based, have denied the happening of the alleged incident, in totality. The victim, her sisters and her mother were the material witnesses of the incident and they not having supported the prosecution case and having given a clean chit to the accused, there is nothing that survives in the prosecution case, which falls flat on its face, failing to bring home the guilt of accused.
23. Conclusion : From the aforesaid discussions, allegations against both the accused persons are not proved. Accordingly, all the three accused Santosh, Anil and Monu stand acquitted for the offences, they have been charged with. Bail bonds of all the three accused persons stand cancelled and their sureties are discharged. Documents of the sureties, if any retained on record, be released to them on appropriate application being moved by them.
Judgment : FIR No. 1036/15 page 13 of 14 SC No. 59010/16 State Vs. Santosh etc
All the accused persons are directed to furnish personal bonds in the sum of Rs.10000/ each under provisions of Section 437A CrPC, with one surety in the like amount each.
Since victim has not suffered any injury or loss, either physical, mental or psychological, she has not been granted any compensation as per provisions of section 33 (8) POCSO Act.
File be consigned to record room.
Announced in the open court
today i.e. on 26.10.2017 (SEEMA MAINI)
ASJ01/SPECIAL JUDGE : POCSO Act :
North : Rohini/Delhi : 26.10.2017
Judgment : FIR No. 1036/15 page 14 of 14