Delhi District Court
State vs Sovinder Singh on 1 June, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State
versus
Mr. Sovinder Singh
Son of Mr. Ganga Sharan
Resident of Village Jitaka, PS Aurangabad,
District Bulandshahar, U.P.
First Information Report Number : 492/2015.
Police Station : Nihal Vihar.
Under sections 363/342/366/376 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet :
23.04.2015.
Arguments concluded on : 01.06.2017.
Date of judgment : 01.06.2017.
Appearances:Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Accused Mr. Sovinder Singh has been produced from judicial
custody.
Ms. Vandana Singh, counsel for accused.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Prosecutrix in person with her father and Ms. Jaishree
Priya, support person from Delhi State Legal Services
Authority, West, Delhi.
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New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh
First Information Report Number : 492/2015.
Police Station : Nihal Vihar
Under section 363/342/366/376 of the Indian Penal Code
and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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JUDGMENT
1. Mr. Sovinder Singh, the accused, has been charge sheeted by Police Station Nihar Vihar for the offence under section 363/342/366/376 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Fictitious names of Ms.X and Mr.Z are given to the prosecutrix and her father, in the present case, to protect the identity of the prosecutrix, who is a minor, as under section 33 (7) of the POCSO Act, the identity of the child victim is not to be disclosed.
3. Accused Mr. Sovinder Singh has been prosecuted on the allegations that on 11.06.2015 at about 04:00 pm from the house of the prosecutrix, within the jurisdiction of Police Station Niharl Vihar, he had kidnapped the prosecutrix Ms.X, took her to Noida, wrongfully confined the prosecutrix there till 04.09.2015 and repeatedly committed aggravated penetrative sexual assault / rape on the prosecutrix, who is a minor. 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.
New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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4. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 19.10.2015.
5. After hearing arguments, charge for offences under section 6 of the POCSO Act in the alternative under section 376 of the IPC, section 363/366/368/376 of the IPC was framed against accused Mr.Sovinder Singh vide order dated 24.02.216 by the learned predecessor of this Court to which the accused had pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined as many as two (02) witnesses i.e. the prosecutrix Ms.X as PW1 and her father Mr.Z as PW2.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera in the vulnerable witness room in Room Number 19 at Tis Hazari Courts, Delhi in the presence of the Support Person and the counsel for Delhi Commission for Women. The evidence of her father Mr.Z, as PW2, has also been recorded.
8. The prosecutrix Ms.X as PW1 has deposed as follows:
"About one or two years ago, during the summer season, I had left my house out of anger as my mother had told me to do something which I did not want to do. I went to my friend's house but I donot remember the name today. The distance between my house and my friend's house was New Sessions Case Number : 56221/2016. Old Sessions Case Number : 194/2015. State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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about 10-15 minutes walk. I stayed in my friend's house for 2-4 days but I did not tell anything to her parents. Then One day I went out and asked one Bhaiya to take me to Nangloi. He instead took me to Police Station where I was threatened by Police to give the statement otherwise they would kill my parents. I do not remember what statement I was made to give by the Police. I was produced by the Police before a Lady Judge at Tis Hazari Courts and I had given the statement before her as per directions of the Police as I had been threatened that my parents would be killed. I do not remember the contents of my statement before the Lady Judge. I was taken by the Police to SGM Hospital where I was medically examined and my samples were taken. I do not remember what I have told the doctor. I do not remember any details as long time has since lapsed. I do not know any Dinesh or Sovinder."
9. 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. She has denied the contents of her statement under section 161 of the Cr.P.C. (Mark B) and the history written by the doctor in her MLC (Mark A). She did not remember the contents of her statement under section 164 of the Cr.P.C. (Ex.PW1/A). She has deposed that "I do not know any man by the name of Dinesh who stays near my residence. I do not know any man by the name of Sovinder who is the brother of one Dinesh" She failed to identify the accused. She has deposed that "I have never seen the Accused who has been shown to me on screen. I have met him earlier."
New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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10.In her cross examination on behalf of the accused, Ms.X has deposed that "It is correct that the Accused shown to me on screen has not committed any offence against me. It is correct that the Accused is innocent."
11.Similarly, the father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused and had turned hostile and retracted from his earlier statement. In his cross examination on behalf of the accused, the father of the prosecutrix Mr.Z (PW2) has admitted to be correct that the accused is innocent and has not committed any offence against his daughter/the prosecutrix.
12.Both the witnesses PWs 1 and 2 have not deposed an iota of evidence of accused Mr. Sovinder Singh that he committed the offences of kidnapping and rape of the prosecutrix, who is a minor.
13.In the circumstances, as the prosecutrix Ms.X (PW1) and her father Mr.Z (PW2), 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 New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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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 father Mr.Z (PW2), who are the star witnesses and the most material witnesses, have not supported the prosecution case and are hostile.
14.The statement under section 313 of the Cr.P.C of the accused Mr. Sovinder Singh is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) and her father Mr.Z (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.
15.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.
16.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and her father Mr.Z (PW2), 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 New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the accused. They have, in fact, deposed that the accused is innocent and has not 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."
17.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
18.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.
New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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19.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 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).
20.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 Mr. Sovinder Singh. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
21.Consequently, no inference can be drawn that the accused Mr.Sovinder Singh is guilty of the charged offences under section 6 of the POCSO Act in the alternative under section 376 of the IPC, sections 363/366/368 of the IPC.
22.There is no material on record to show that on 11.06.2015 at about 04:00 pm from the house of the prosecutrix, within the jurisdiction of Police Station Niharl Vihar, the accused had kidnapped the New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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prosecutrix, took her to Noida, wrongfully confined the prosecutrix there till 04.09.2015 and repeatedly committed aggravated penetrative sexual assault / rape on the prosecutrix, who is a minor. The prosecutrix has, in fact, failed to identify the accused deposing that she has never met him earlier nor knows him.
23.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 Mr. Sovinder Singh for the offences of kidnapping, wrongfully confinement and rape / aggravated penetrative sexual assault. 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 Mr. Sovinder Singh has committed any of the charged offences.
24.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 Mr. Sovinder Singh for the offence under section 6 of the POCSO Act in the alternative under section 376 of the IPC, sections 363/366/368 of the IPC.
25.Consequently, accused Mr. Sovinder Singh is hereby acquitted of the charges for the offences of kidnapping, wrongfully confinement and rape / aggravated penetrative sexual assault New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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on the prosecutrix, who is a minor, punishable under section 6 of the POCSO Act in the alternative under section 376 of the IPC, sections 363/366/368 of the IPC.
COMPLAINCE OF SECTION 437-A OF THE CR.P.C. AND OTHER FORMALITIES
26.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
27.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
28.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
29.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 01st day of June, 2017. Additional Sessions Judge-01, West, Tis Hazari Courts, Delhi New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-
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********************************************************** New Sessions Case Number : 56221/2016.
Old Sessions Case Number : 194/2015.
State versus Sovinder Singh First Information Report Number : 492/2015. Police Station : Nihal Vihar Under section 363/342/366/376 of the Indian Penal Code and under sections 6 of the POCSO Act. -:: Page 9 of 10 ::-