Delhi District Court
State vs Naresh Singh on 13 December, 2017
IN THE COURT OF
SHRI BALWANT RAI BANSAL, ADDITIONAL SESSIONS
JUDGE01, SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CISSC No.7946/16
FIR No.504/16
Police Station: Ambedkar Nagar
In the matter of:
State
versus
Naresh Singh
S/o: Sh. Jagbir Singh
R/o: House No. D5/242A,
Sangam Vihar, Deoli,
New Delhi.
Permanent R/o: Village Jyoti,
PO & PS Sheoli, Tehsil Akbarpur,
District Kanpur Dehat,
Uttar Pradesh.
............ Accused
Date of Institution : 23.11.2016.
Date of Reserving Judgment : Not reserved.
Date of Pronouncement : 13.12.2017.
JUDGMENT
(1). Accused Naresh Singh S/o Jagbir Singh, has been CISSC No.7946/16 State vs. Naresh Singh Page 1 of 24 charged and facing trial for the commission of offences punishable under sections 363, 366 and 376 of IPC and section 4 of POCSO Act 2012, on the allegations that, he kidnapped the victim/prosecutrix, namely, 'S' (real name withheld in order to conceal her identity), with intent that she may be compelled to marry with him against her will or that she may be forced or seduced to illicit intercourse, and subsequently, he committed rape and penetrative sexual assault upon the said victim girl.
(2). The present case FIR was registered on 26.08.2016 on the basis of the complaint made by the victim/prosecutrix, namely, 'S' that "she has been residing on rent alongwith her parents for the last five years and studying in class 8th. They are three brothers & sisters and her father works in a security agency at Saket. Her maternal grand parents resides at Kanpur, U.P. She had talks with Naresh at Kanpur relating to the studies and they had exchanged their mobile numbers to each other for talking to each other. The said Naresh came Delhi and he told her to meet him and on 25.08.2016 at about 03:00pm, Naresh CISSC No.7946/16 State vs. Naresh Singh Page 2 of 24 met her in DDA Flats, Madangir, outside the gali. At that time, he was in a vehicle and he asked her to go for a walk with him. He made her to sit in the vehicle and after about half an hour, he took her to a room and he bolted the room from inside. He forced her for sexual intercourse with him, but she refused, however, Naresh made physical relationship with her in that room and in the evening, he dropped her at BRT, Madangir. She went home and narrated about the incident to her mother and her mother made phone call to her father, who reached home and made a call at number 100".
(3). The prosecutrix was got medically examined by the police and the exhibits collected by the doctor, were handed over to the IO. During the further investigation, the prosecutrix had pointed out the place of incident, that is, the room, at A1, Pumpose Enclave, Greater Kailash, New Delhi where she was allegedly raped by the accused. The prosecutrix was sent to NGO Prayas for her care and protection and thereafter, her statement under section 164 of Cr.P.C. was recorded by the Magistrate, in which also she reiterated her CISSC No.7946/16 State vs. Naresh Singh Page 3 of 24 version given in the complaint and also stated that the accused made physical relations with her forcibly on the pretext that he will marry her. Thereafter, during the investigation, the accused was apprehended by the police near Batra Hospital, M.B. Road, New Delhi, on the pointing out of the victim and he was subsequently arrested. The accused was got medically examined at AIIMS hospital. The date of birth certificate of the prosecutrix was obtained from her firstattended school at Tigri, New Delhi, as per which, her date of birth is 24.08.2002.
(4). After concluding the investigation, the IO prepared the chargesheet against the accused for his having committed the offences punishable under sections 363, 366 and 376 of IPC and section 4 of POCSO Act 2012, and put up before the court concerned. (5). Charge for the offences punishable under sections 363, 366 and 376 of IPC and section 4 of POCSO Act 2012, was framed against the accused, to which, the accused pleaded notguilty and claimed trial, and the case was proceeded for prosecution evidence. CISSC No.7946/16 State vs. Naresh Singh Page 4 of 24 (6). In the list of witnesses, the prosecution cited 23 witnesses, out of which, three witnesses, including the prosecutrix as PW1, have been examined.
(7). It is submitted by counsel for the accused that the prosecutrix who is the main the star witness of the prosecution to prove its case and is the complainant of the case, has already been examined as PW1 alongwith her father as PW2 and her mother as PW3, and there is no other public witness remained to be examined. He submitted that the PW1 (the prosecutrix), who is the main and crucial witness, has not supported the case of the prosecution. The counsel has submitted that since nothing incriminating evidence has come against the accused, therefore, to save the precious time and manpower 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.
(8). On the other hand, the Ld. Special Public Prosecutor has opposed the contentions made by the counsel for the accused. CISSC No.7946/16 State vs. Naresh Singh Page 5 of 24 (9). I have considered the submissions made on behalf of both the parties and have gone through the record of the case. (10). There are 23 witnesses cited by the prosecution in the list of witnesses, to prove its case. Out of the said 23 prosecution witnesses, three witnesses have already been examined, including the victim as PW1. It is pertinent to evaluate herein the testimony of PW1 (the prosecutrix), who is the main and crucial witness of the prosecution, to decide the fate of the case.
(11). PW1, the victim / prosecutrix, in her examinationin chief before the court, has deposed that on 25.08.2016 at 4.00pm, she had gone with her Jiju Uday Pratap to Select City Walk Mall for outing. She knows Naresh who is her cousin brother. She deposed that Naresh had not taken her anywhere. When she had returned from Mall and her mother asked that where she had gone, she told her mother that Naresh had taken her in a room falsely. She stated falsely so to her mother due to fear that she will scold her as to why she had gone with her Jiju. Then her mother told the same to her father who called CISSC No.7946/16 State vs. Naresh Singh Page 6 of 24 the police. She deposed that the police came and got dictated to her the complaint as told by her mother and she wrote the same accordingly. While in fact, Naresh had not done anything wrong with her as mentioned in the complaint Ex.PW1/A. After that, police took her and her mother to AIIMS hospital where she was got medically examined and on the next day, she was produced before a lady judge in this court complex for recording of her statement u/s 164 of Cr.P.C. (Ex.PW1/B). She deposed that her clothes were also taken by the police vide seizure memo Ex.PW1/C which bears her signatures at point A. She also deposed that she had signed arrest memo of Naresh, and the police had obtained her signatures on some plain papers and she can identify her signatures if same are shown to her. (12). During her examinationinchief, the prosecutrix PW1 was shown the seizure memo of mobile phone of Naresh Ex.PW1/E; seizure memo of her mobile phone Ex.PW1/F; seizure memo of car make Maruti Swift No. DL 1YE 2738 Ex. PW1/G; seizure memo of bed sheet Ex.PW1/H; seizure memo of blanket Ex.PW/I; seizure CISSC No.7946/16 State vs. Naresh Singh Page 7 of 24 memo of used condom unused condom with packet Ex.PW1/J; and seizure memo of clothes of Naresh Ex.PW1/K. On seeing the same, the prosecutrix identified her signatures at point A and stated that said documents were blank when she signed the same at point A. (13). During the examinationinchief of the prosecutrix, permission was sought by the Ld. SPP to crossexamine the witness on the ground that she has not supported the prosecution case and has resiled from her previous statement made by her.
(14). Permission was granted to the Ld. SPP and during her crossexamination by the Ld. SPP, the prosecutrix has denied the correctness of the statements made by her during the course of the investigation. She stated that "It is correct that my mother's native place (nanihal) is at Kanpur. It is incorrect that I had met with accused in my nanihal or that at that time I had talks with accused on the issue of studies or that at that time accused had given me his mobile number for talking and he had also taken my mobile number from me. It is further incorrect that at that time accused had asked me CISSC No.7946/16 State vs. Naresh Singh Page 8 of 24 to meet me after coming to Delhi. It is further incorrect that on 25.08.2016 at about 3.00 PM, Naresh met me at DDA Flat, Madangir outside of lane of my house. It is further incorrect that at that time accused was in his vehicle or that at that time accused had asked me for outing and he made me sit in his vehicle. It is further incorrect that after traveling for about half an hour, accused took me in a room and bolted the room from inside and thereafter he insisted me to have physical relations with him. It is further incorrect that at that time I had refused to do so but accused made physical relations with me in that room. It is further incorrect that after that in the evening accused had left me at BRT Madangir.
(15). The prosecutrix further stated during her cross examination by the Ld. SPP that: "It is further incorrect that after reaching home, I told the aforesaid facts to my mother. It is further incorrect that I had voluntarily stated these facts in my complaint Ex. PW1/A against accused as he had done so with me. (Confronted with Ex. PW1/A where it is so recorded but the witness denied having stated so voluntarily). It is incorrect that when I was taken to hospital, CISSC No.7946/16 State vs. Naresh Singh Page 9 of 24 I had also stated to the doctor about the said facts at the time of my medical examination. It is wrong to suggest that when I was produced before the Magistrate I had voluntarily got recorded my statement against accused because he had forcefully committed rape with me. it is wrong to suggest that I did not make the statement against the accused at the instance of the IO. It is wrong to suggest that on 25.08.2016, I along with my father had joined the police to search out the accused or that thereafter accused was apprehended by the police in front of Batra Hospital when he came there in a car at my pointing out. It is wrong to suggest that at that time on seeing the car of accused Naresh, I had told the police that it was the same car in which accused had taken me from outside of my house on 25.08.2016 or that he had left me in the same car outside my house after making physical relations with me. It is wrong to suggest that at that time after interrogation, accused was arrested in my presence or that only after that I had signed his arrest memo Ex.PW1/D. It is further incorrect to suggest that after that accused had got recovered his T Shirt and jeans from his house which he was wearing at the time of CISSC No.7946/16 State vs. Naresh Singh Page 10 of 24 establishing physical relation with me. It is further incorrect to suggest that at that time police had prepared seizure memo Ex. PW1/K of clothes of accused or that I had signed the same only after being prepared by the police in my presence. It is further incorrect to suggest that police had also recorded my supplementary statement to whom I stated the aforesaid facts. Witness is confronted with her supplementary statement Mark P1 where it was so recorded. It is further incorrect to suggest that on 26.08.2016, after my medical examination, I along with my parents had taken the police to A1 Pumpos Enclave, GKI, New Delhi where accused made physical relation with me on a double bed on which a bed sheet of white colour was lying along with a blanket which was used in covering me. It is further incorrect to suggest that at the time of commission of offence, accused was having one condom packet or that out of the said packet, he had used one condom at the time of making physical relation with me or that after establishing physical relation with me with the help of condom, accused had thrown the said used condom and the remaining condom and the packet beneath the double bed. It is further incorrect CISSC No.7946/16 State vs. Naresh Singh Page 11 of 24 to suggest that at that time, when we reached in that room, the said bed sheet was found spread on the double bed and the said blanket was also available there and same were taken into possession by the police or that I had signed the seizure memos of the same i.e. Ex. PW1/H and Ex. PW1/I. (16). The prosecutrix further stated that; "It is further incorrect to suggest that police had also taken into possession used condom and unused condom with packet vide seizure memo Ex. PW1/J. It is further incorrect to suggest that at that time, I had also told the police that the clothes which I was wearing at the time of commission of offence were changed by me after reaching the house. It is further incorrect to suggest that at that time, police had also recorded my other supplementary statement to whom I stated the aforesaid facts. (Confronted with supplementary statement Mark P2 where it was so record)". She further stated that "It is further incorrect to suggest that when I reached the said room with the police, at that time police had also prepared the site plan of the place of occurrence on my pointing out. It is wrong to suggest that I am not identifying the T CISSC No.7946/16 State vs. Naresh Singh Page 12 of 24 Shirt which was shown to me today deliberately and it was the same which was handed over to the police. It is further incorrect to suggest that accused had established physical relation with me in the manner as stated in my complaint Ex.PW1/A but I am not disclosing the true facts and I have falsely deposed today to save the accused". The prosecutrix was discharged with 'nil' crossexamination on behalf of the accused.
(17). PW2, namely, 'AK' is the father of the prosecutrix, who deposed that at the time of the incident, he was in his office at Anupam Enclave, PhaseI, Saket. He received a telephonic call from his house that his victim daughter had not returned back from tuition. He came back at his house on 25.08.2016 and met his daughter. She was under shock and did not speak anything to him. His wife called the police. Police came and took his victim daughter to the police station. His victim daughter did not tell anything to him and she told the incident only to the police. He came to know from police official that his daughter had gone with one Naresh who is his relative being CISSC No.7946/16 State vs. Naresh Singh Page 13 of 24 son of his brotherinlaw. He did not come to know anything else from the police. Police got his victim daughter medically examined. Naresh was searched by police and he was arrested and sent to jail by police. His victim daughter was also taken to some NGO office in Kalkaji by the police after her medical examination.
(18). PW2, the father of the prosecutrix further stated that till date, he does not know as to why his victim daughter had gone with Naresh and what was done by Naresh to his victim daughter. He did not remember if police had recorded his statement or not, however he did not give anything in writing. Police, however, had obtained his signatures on whatever was given in writing by his victim daughter. (19). During the examinationinchief of the father of the prosecutrix, permission was sought by the Ld. SPP to crossexamine the witness on the ground that the witness is resiling from his previous statement and is withholding truth.
(20). Permission was granted to the Ld. SPP and during his crossexamination by the Ld. SPP, PW2 (the father of the prosecutrix) CISSC No.7946/16 State vs. Naresh Singh Page 14 of 24 has denied the correctness of the statement made by him during the course of the investigation. He stated that: "My daughter did not inform me that accused had sexual intercourse with her. It was also told by her to the police during investigation of this case. It is wrong to suggest that my victim daughter had told me about the incident and thereafter I had told the police that accused had sexual intercourse with her without her consent. It is wrong to suggest that I was taken by my victim daughter to A1, Pamposh Enclave, Greater Kailash at First Floor where my daughter pointed out towards the bed on which accused had made physical relationship with her and police had seized the bedsheet from the said room or that I had signed the memo in this regard. Witness was shown the documents Ex. PW1/H and he admitted his signature at point B on the same. He further deposed that "I have studied upto graduation. Before starting my business, I was working as a Manager in a security agency at Rewari. At present, in my business there are 800900 employees. In my business, I do study the papers submitted to me during course of business and then I sign them. However, I had signed all the documents in this case without CISSC No.7946/16 State vs. Naresh Singh Page 15 of 24 reading them". He further deposed that "I did not lodge any complaint or application with the police regarding my relative Naresh facing the trial in this case. I was satisfied with the investigation conducted by the police and I have no grievance with the police even today". He stated that "It is wrong to suggest that on account of I being relative of accused and having undergone a compromise with the accused have deposed falsely to save the accused. It is wrong to suggest that I have withheld material facts of the case and did not depose against accused on account of compromise with him". The father of the prosecutrix further stated that "I do not know to whom Maruti Swift Car DL 1YE 2738 belongs. It is correct that police had seized the clothes of my victim daughter during investigation of the case. It is wrong to suggest that from House No. A1, Pamposh Enclave, Greater Kailsh, police had seized one used condom and unused packet of condom in my presence. It is correct that accused Naresh was arrested by police at my instance. Police did not seize clothes of accused Naresh, however I had signed the document Ex. PW1/C. It is wrong to suggest that one blanket was also seized in my CISSC No.7946/16 State vs. Naresh Singh Page 16 of 24 presence by police. It is correct that my victim daughter at that time was using a black colour mobile phone make Samsung Model GT 19001. I do not know what mobile number was being used by my victim daughter. It is wrong to suggest that accused Naresh had produced one mobile phone MI (Micromax) E311 which was seized by police in my presence. I did not tell the police the facts that the accused Naresh had physical relationship with my daughter on 25.08.2016 and from House No. A1, Pamposh Enclave, Greater Kailash, New Delhi, condoms, bedsheet, blanket etc were recovered. The witness was read over the statement dated 26.08.2016 Mark PW2/A and the witness denied contents of the statement and stated that he did not make any such statement to the police. The witness was read over another statement dated 26.08.2016 Mark PW2/B and the witness denied contents of the statement and stated that he did not make any such statement to the police".
(21). PW2, the father of the prosecutrix admitted that at that time his daughter was studying in 8th Standard in GLT School, Nehru Nagar, Delhi, however, he denied the suggestions put by the Ld. SPP CISSC No.7946/16 State vs. Naresh Singh Page 17 of 24 that he has deposed falsely in the court to help the accused in the case, or that he had given the statement to police on 26.08.2016 and he had also read all the documents prepared by the police and then signed the same. The witness was discharged with 'nil' crossexamination on behalf of the accused.
(22). PW3, namely, Smt. 'SS' is the mother of the prosecutrix. She deposed in her examinationinchief that her daughter 'S' was studying in school in 8th class at the time of incident. When she did not come at house upto 07:00pm, thereafter she made a call to her husband. It was month of August 2016. She further stated that thereafter she does not know what was happened. She stated that her daughter made a complaint. Thereafter, she was medically examined and she was also counseled by an NGO. She further stated that she does not know anything about the case.
(23). Ld. SPP sought permission to cross examine the witness as she was resiling from her previous statement, and the permission was granted to the Ld. SPP to crossexamine the witness. CISSC No.7946/16 State vs. Naresh Singh Page 18 of 24 (24). During her crossexamination by the Ld. SPP, PW3 (the mother of the prosecutrix), she was read over her previous statement MarkPW3/A and the same was explained to her, however, she denied to have made any such statement to the police. She denied the suggestion that the statement of her daughter was recorded at Saket Court by the lady Judge. She further stated that her victim daughter was produced before Bal Kalyan Samiti, Kalka Ji, where she was counseled, and the IO made inquiry from her and her husband. (25). PW3 (the mother of the prosecutrix) stated that "It is wrong to suggest that I along with my husband, my daughter S and IO were trying to search out the accused Naresh Singh who had committed physical relation with my daughter S on 25.08.2016. Confronted with the statement Mark PW3/A from point A to point A, where it is so recorded. It is wrong to suggest that when we reached in front of the Batra Hospital, accused was coming from one car and identified by my daughter as the same person who had made physical relation with her on 25.8.2015. Confronted with the statement Mark PW3/A from point B to B, where it is so recorded. It is wrong to CISSC No.7946/16 State vs. Naresh Singh Page 19 of 24 suggest that the accused was apprehended and on inquiry accused had accepted his guilt and he was arrested in our presence. It is wrong to suggest that accused was arrested or that the car was identified by my victim/daughter S and stated that it was the same car through which my victim daughter was dropped after the physical relation. It is wrong to suggest that on the identification of my victim daughter, the clothes of accused that is tshirt and jean were seized by the IO as the said clothes were the same clothes which were worn by the accused at the time of committing of physical relation. It is correct that IO had seized the clothes of accused Naresh Singh which is already Ex PW1/K which bears my signature at point A". (26). She denied the suggestions that the statements of her victim daughter and her husband were recorded by the IO, or that they had compromised the matter with the accused, or that she was not telling the complete facts before the court. She also deposed that she cannot identify the clothes of accused which were seized by the IO in her presence, and on showing the same, she denied to identify the clothes and also denied the suggestions that these are the same clothes CISSC No.7946/16 State vs. Naresh Singh Page 20 of 24 which were seized by the IO in her presence. She further denied the suggestion put by the Ld. SPP that she is deposing falsely to save the accused as the matter has been compromised with the accused. The witness was discharged with 'nil' crossexamination on behalf of the accused.
(27). As already mentioned, the accused has been facing trial for the commission of offences punishable under sections 363, 366 and 376 of IPC and section 4 of POCSO Act. In her examinationin chief before the court, the victim stated that Naresh had not taken her anywhere, and when she had returned from Mall and her mother asked that where she had gone, she falsely told to her mother that Naresh had taken her in a room. She stated falsely so to her mother due to fear that she will scold her as to why she had gone with her Jiju. She also stated that the police came and got dictated to her the complaint as told by her mother and she wrote the same accordingly. She categorically stated that Naresh had not done anything wrong with her as mentioned in the complaint Ex.PW1/A. PW2 and PW3, the parents CISSC No.7946/16 State vs. Naresh Singh Page 21 of 24 of the prosecutrix have also categorically stated in their examination in the court that they do not know as to what had happened with their victim daughter.
(28) The medical evidence also does not support the case of prosecution that victim was subjected to rape by the accused. The FSL report which is on record does not implicate the accused that he committed the offence as charged.
(29). Keeping in view the testimony of PW1 (the prosecutrix) and her parents, in my considered opinion, no useful purpose will be served by examining the remaining prosecution witnesses, as it will not affect the fate of the case. The remaining prosecution witnesses are the police witnesses; the doctors who medically examined the victim and the accused; duty officer who recorded the FIR; the Metropolitan Magistrate who recorded the statement of the prosecutrix u/s 164 of Cr.P.C.; and other witnesses, who all are formal in nature. (30). I have gone through and critically evaluated the testimony of PW1 (the victim) and her parent, namely, PW2 and PW3, and CISSC No.7946/16 State vs. Naresh Singh Page 22 of 24 found that they have not supported the case of the prosecution that the accused induced the victim and thereafter committed sexual intercourse upon her and no incriminating evidence has come on record against the accused. In the facts and the circumstances of the case, it will be a futile exercise to examine rest of the witnesses in this case, as none of them is an eyewitness to the incident. Continuing with this trial any further, will only result in wastage of time and resources, and there will be no impact on the result of this trial. Hence, the prosecution evidence has been closed and the SA of the accused has been dispensed with.
(30). In the entirety of the facts and circumstances of the case and the aforesaid discussions, particularly keeping in view the testimony of PW1 (the victim), since there being no evidence against the accused, therefore, accused Naresh Singh is entitled to be acquitted, and accordingly, the accused is not found guilty of committing the offences punishable under sections 363, 366 and 376 of IPC and section 4 of POCSO Act 2012, and consequently, he is CISSC No.7946/16 State vs. Naresh Singh Page 23 of 24 acquitted of the said offences.
(31). However, Naresh Singh is required to furnish bail bond in the sum of Rs.15,000/ with one surety of like amount, under section 437A of Cr.P.C, which shall remain in force for a period of six months. The bail bonds are furnished and the same are accepted. (32). File be consigned to Record Room, after necessary compliance.
Pronounced in the open Court (Balwant Rai Bansal)
th
on 13 of December, 2017. Additional Sessions Judge01, Special Court (POCSO), South:Saket Courts: New Delhi.
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