Delhi District Court
Fir No. 366/14 State vs . Lalit Kumar Page 1 Of 13 on 1 February, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No.02403R022072014
SC No. 140/14
FIR No. 366/14
PS : Naraina
U/sec. 354A/354D/506 IPC & Sec.12 POCSO Act
In re :
STATE
Vs.
Lalit Kumar
S/o Sh. Ramphal Bharia
R/o H. No. 110/28, Jawahar Nagar, Sonipat, Haryana.
....Accused
Date of filing of charge sheet : 28.10.2014
Date of framing of charge : 26.11.2014
Date of judgment : 01.02.2016
J U D G M E N T
1 By this judgment I will dispose of case of prosecution based on FIR no. 366/14 PS Naraina.
2 The brief facts of the case as per prosecution are that there is prosecutrix X minor (name mentioned in charge sheet). A complaint dated 09.08.2014 was handed over to SHO PS Naraina. The gist of facts, as per the complaint are that about 2 years back the accused who is the brotherinlaw of the younger brother of complainant (mother of FIR No. 366/14 State Vs. Lalit Kumar page 1 of 13 2 prosecutrix), started giving tuition to the prosecutrix who was then the student of 10th class. However, instead of giving tuitions he used to harass the prosecutrix by saying obscene words and sexually assaulting her. He also used to make her bunk her classes and harass her on mobile. Since 01.08.2014, the prosecutrix started living in the hostel. Again the accused started harassing her by talking on her mobile and by sending messages on her mobile. Due to that reason the prosecutrix is suffering mentally. On the basis of these facts, present FIR was registered u/sec.354/354A/354D/506/509 IPC read with Sec.12 POCSO Act.
3 After the investigation charge sheet was filed and cognizance of the offence were taken under abovesaid sections.
4 Accused was summoned and after providing him the copies of the documents, charges were framed u/sec.354A/354D/506 IPC r/w Sec.8/12 POCSO Act. Accused pleaded not guilty and claim trial.
5 To prove its case prosecution examined eight witnesses.
6 PW1, Prosecutrix X deposed that her father had expired and she is living with her mother and one elder sister at the house of her maternal uncle (Mama) at Naraina. He is having four maternal uncles who were also residing in the same house. Accused is the brotherinlaw (sala) of her mama Dushyant. Accused started living with her mama at the same house. He started giving tuitions to her. However instead of giving tuitions he used to sexually harass her by touching her body with sexual intent. In the year 2010 or 2011 he tried to touch her body and kissed her. Accused also made her ID on "facebook" social site and used to send her SMS saying "tu vo Mini nahi hai jo pahle thi". Accused FIR No. 366/14 State Vs. Lalit Kumar page 2 of 13 3 used to compel her to talk with him on mobile phone. He further used to threatened her not to disclose his relationship with her otherwise her family members will discontinue her studies and will make her marry to someone. She disclosed these facts to her cousin namely Lakhan. His brother Lakhan stated these facts to the mother of the victim. She further deposed that she got recorded her statement u/sec.164 Cr.P.C. Ex.PW1/A. As per the victim, her date of birth is 18.05.1997.
7 PW2 Sh. Sandeep Kumar deposed that prosecutrix X is his sisterinlaw (sali). On 25.09.2014 nothing happened and IO on his own written the date. On 28.09.2014 or 29.09.2014 he went to the Police Station with the mother of the victim and gave a CD containing messages from the phone of the prosecutrix but sent by accused. The same were handed over to the police. IO seized the said CD vide seizure memo Ex.PW2/A. He also handed over a SIM card of the mobile phone of the prosecutrix which was seized by IO vide seizure memo Ex.PW2/B. The copy of the birth certificate was also handed over which was seized vide seizure memo Ex.PW2/C. When the sealed pullanda containing the seal of BM was opened, witness stated that it is not the same CD which was handed over by the witness to the IO. Police did not retrieved/collected the call detail of number 9716928590 for the period January, 2012 to December, 2012. Instead of collecting the call details for the said relevant period, police collected the call details of the accused for the period 2014. The brotherinlaw of the accused i.e. mama of victim (jija of accused) was informed about the messages sent by the accused to the prosecutrix, but he paid no heed.
8 PW3 Smt. Raj Bala, mother of the victim, deposed that after the expiry of her husband she started living with her brother. Accused is brotherinlaw (sala) of one FIR No. 366/14 State Vs. Lalit Kumar page 3 of 13 4 of his brothers namely Dushyant. Accused stayed with Dushyant for some time. She came to know about the incidents when her daughter got admitted in a GNM Course and started living in hostel. The accused started harassing victim when she was studying in class 10th. At that point of time she had gone her native village for repairing of ancestral house for two months. In that period accused started teaching the victim. Instead of teaching he used to touch her, kiss her and also used to caught hold of her. On one day she has seen that accused held the hand of her daughter in the staircase. The matter was told to brother Dushyant who slapped the accused but accused had not mended his ways. On some occasions, accused made the victim bunk her school. When victim took admission in GNM Course and started residing in the hostel, accused started harassing her on telephone. This fact was told by victim to one Lakhan (son of the mausi of victim) by accused. This Lakhan further told these facts of harassment of victim in hostel to her. Thereafter accused started threatening the witness of dire consequences. A complaint to this effect was lodged which is Ex.PW3/A. The messages are already Ex.PW2/P2. She gave the birth certificate of her daughter to the police/IO which was seized vide Ex.PW3/B. She had also given the certificate of 10th class which was seized by police vide Ex.PW3/C. She had given the mobile phone of her daughter on which the accused used to send messages which was seized vide memo Ex.PW2/B. She had given one CD to the police which was seized vide memo Ex.PW2/A. She had also given the photocopy of messages to the police which were seized vide memo Ex.PW3/D. Witness had correctly identified the CD as Ex.P2.
9 PW4 Lakhan deposed that on 31.07.2014 prosecutrix had gone to hostel as she was admitted to GNM Course. On 01.08.2014 he received a telephonic call from victim in which she told that accused had again started harassing her. He was told by her FIR No. 366/14 State Vs. Lalit Kumar page 4 of 13 5 that accused is forcing her to talk with him. Witness told this fact to his mother and the mother of the victim. The entire family put this matter to uncle Dushyant. No action was taken by uncle Dushyant. FIR was lodged. He copied the messages from facebook account of prosecutrix.
10 PW5 Sh. Ranbeer Singh, Principal of the School of the prosecutrix. He proved the copy of admission and withdrawal register as Ex.PW5/A. As per the said record, the date of birth of victim is recorded as 18.05.1997.
11 PW6 WSI Birmati deposed that on 11.08.2014 she was working as SI at PS Naraina. She was handed over the investigation. She met with prosecutrix and her mother in the PS. She tried to record the statement of the prosecutrix. But the mother of the victim had not cooperated. Along with the complaint given by the mother of victim, she also attached messages delivered by the accused. Complainant also produced CBSE certificate of prosecutrix Ex.PW3/C which was taken into possession vide memo Ex.PW6/A1. On 18.08.2014 the statement of prosecutrix was recorded. On 19.08.2014 an application was made for recording the statement of prosecutrix u/sec.164 Cr.P.C. The statement of prosecutrix was recorded vide Ex.PW1/A. She moved an application Ex.PW6/C to obtain the copy of statement. On 25.09.2014 complainant produced one mobile phone make Micromax, having SIM of Reliance and told her that accused had delivered the messages on the aforesaid mobile phone of the prosecutrix. The same was taken into possession vide memo Ex.PW2/B. Complainant also produced one CD Ex.PW2/P1 containing the messages delivered by the accused. The same was taken into possession vide seizure memo Ex.PW2/A. Complainant also provided photostate copy of messages Ex.PW2/P2 (colly) delivered by accused to the prosecutrix. Same was taken into possession vide seizure memo Ex.PW3/D. On 27.09.2014 she moved an application to FIR No. 366/14 State Vs. Lalit Kumar page 5 of 13 6 DCP Office for getting mobile phone call details of accused. She had obtained CDR (call details record) of mobile phone no. 9255909009 Mark PW6/X. 12 PW7 Lady Ct. Madhu Kumari deposed that on 14.08.2014 she was posted as Constable in PS Naraina. Complainant Raj Bala produced the certificate of CBSE of victim Ex.PW3/C which was seized by IO vide seizure memo Ex.PW6/A1.
13 PW8 Puneet Arora, AAO, SKR Public School, Inderpuri (school of victim) proved the photostate copy of birth certificate of victim as Ex.PW3/B. School leaving certificate Ex.PW8/A, copy of admission form Ex.PW8/B. Copy of admission register showing the admission of prosecutrix at serial no. 1179 through Ex.PW8/C. Certificate issued by Principal of the school Ex.PW6/F. 14 Following documents were admitted by accused/counsel for accused u/sec.294 Cr. P.C. and were read as evidence: Serial Description of Number of Admitted/denied Remarks by Exhibit/s No. document/s pages court, if any
1. Proceedings u/s 164 5 Admitted To be read in Already Cr.P.C conducted by evidence exhibited Sh. Dheeraj Mittal Ld. as MM of victim X Ex.PW1/A
2. FIR along with Admitted To be read in Ex.P2 certificate u/sec.65B of evidence (colly) IEA 15 On account of the admission/denial of documents, following witnesses were dropped by the prosecution: Serial No. Document/s Exhibit/s
1. Sh. Dheeraj Mittal Ld. MM As proceedings conducted by him is already FIR No. 366/14 State Vs. Lalit Kumar page 6 of 13 7 inhibited as Ex.PW1/A.
2. ASI Omvir Singh As the FIR along with certificate already exhibited as Ex.P2 (colly).
16 After the closure of PE, statement of accused was recorded u/sec.313 Cr.P.C. In this statement all incriminating evidence was put to the accused. He stated that he was falsely implicated as there was some property dispute going on between Sh. Dushyant (jija) of accused, mother of victim and other family members of that family. No such act took place. He was a fine student and at moment employed with Government of India.
17 Accused led DE in which he examined DW1 Sh. Dushyant Kumar, brother inlaw (jija) of accused. He deposed that he is employed with Delhi Police as Constable and posted at PS Palam Airport. Complainant was residing with with her daughters with him i.e. at the same house since the year 2006. Accused is his brotherinlaw (sala) permanent resident of Sonipat, Haryana. Accused had never taken any house on rent in Sonipat and only visited him on account of festivals. Accused never lived in their house permanently. The complaints made by the victim or her mother are false complainants as there is property dispute and complainant wants to grab his property. It is stated that he had made various complaint against complainant with PS Naraina which are exhibited as Ex.DW1/A to DW1/D. He further stated that date of birth of victim is 18.04.1995.
18 After closure of DE, final arguments were heard.
19 I have gone through the record, evidence and submissions forwarded by L.d APP PP for State and Ld. Counsel for the accused. My observations are as under: FIR No. 366/14 State Vs. Lalit Kumar page 7 of 13 8 20 As far as the present case is concerned, the accused is charged under POCSO Act. The main ingredient to bring the case under POCSO Act is that the victim should be minor i.e. less than 18 years of age. In this case the prosecution examined eight witnesses. The official from the school of prosecutrix proved document Ex.PW3/B i.e. the birth certificate of the victim. He has also further proved document Ex.PW8/A to Ex.PW8/C and Ex.PW6/F. Ex.PW8/A to Ex.PW8/C and Ex.PW6/F are the documents which are maintained in the normal course of business of school, hence can be presumed as correct. The copy of the birth certificate is proved as Ex.PW3/B. As per the said certificate the date of birth of victim is given as 18.05.1997. However, DW1 had stated that the date of birth of victim is 18.04.1995. No document is placed on record to substantiate his claim. In these circumstances, in the absence of any documentary evidence produced on behalf of accused, it can be concluded that the date of birth of victim is 18.05.1997.
21 It is argued by Ld. counsel for accused that the victim had narrated two incidents i.e. some incidents which occurred in the year 201011 and later on the incident of harassment through electronic messages in the year 2014. It is stated that in the year 201011 the POCSO Act was not enforce, hence the allegations of the victim does not attract POCSO Act. It is further stated that even otherwise there is contradictory statements of witnesses which belies that any act of such sexual harassment had taken place in the year 201011. It is further stated that the complainant, victim as well as IO had stated that the first complaint which was written on the facts narrated by the complainant, was torn by the mother of the victim and thus Ex.PW1/A cannot be relied upon, since the same is manipulated complaint. It is further argued that victim failed to specify the reasons for not reporting the matter to the police. On the other hand, it is argued by Ld. APP for State that as far as the acts of sexual harassment in the year 201011 are concerned, they FIR No. 366/14 State Vs. Lalit Kumar page 8 of 13 9 are fully supported by all public witnesses and though even if POCSO Act is not attracted the offence u/sec.354 IPC (as existed on that date) is made out against accused.
22 As far as the offence/s in the year 2014 i.e. the offence of harassing the victim through electronic media is concerned, it is argued by Ld. counsel for accused that no proper investigation is done in this regard. It is stated that Ex.PW2/P2 is not a proved document since it is not supported with certificate u/sec.65B of Indian Evidence Act. It is further stated that CDR with respect to mobile no. 9255909009 Mark PW6/X does not relate to the accused.
23 It is argued by Ld. APP for State that the said document Ex.PW2/P2 stands proved in the testimony of PW2. Hence it is a proved document. It is stated that on the basis of these documents, it is clearly reflected that accused was harassing the prosecutrix.
24 As far as the acts of sexual harassment/outraging the modesty of a woman in the year 201011 is concerned, the relevant provision of POCSO Act is not attracted since POCSO Act was enforce on 14.11.2012. All these acts are prior to it. Moreover, POCSO Act has no retrospective effect, hence for acts in the year 201011 POCSO Act is not attracted. As far as the offence u/sec.354 IPC (as existed on that day) is concerned, the victim/complainant have stated following acts of accused i.e. touching the body of the victim with sexual intent, kissing the victim and holding the hand of victim in stairs (deposed only by the mother of the victim).
25 As far as the act of holding of hand of victim in the staircase is concerned, no such act has been mentioned by the complainant in Ex.PW3/A. Similarly, no such fact is stated by PW1 in her statement u/sec.164 Cr.P.C. Ex.PW1/A. This particular fact is FIR No. 366/14 State Vs. Lalit Kumar page 9 of 13 10 deposed by PW3 (mother of the victim) for the first time in her statement in the court. So, this appears to be an improvement from the earlier statement. Moreover, when this fact was not endorsed/deposed by victim herself, it is hard to believe that such act had taken place. So, the prosecution failed to establish this fact of outraging the modesty of the woman.
26 As far as the other two facts i.e. touching the body of the victim with sexual intent and kissing her (period 201011) is concerned, these facts are not expressively mentioned in statement Ex.PW3/A. However, victim PW1 had specifically mentioned these facts in her statement u/sec.164 Cr.P.C. i.e. Ex.PW1/A as well as her statement dated 19.02.2015 before the court. It is stated by Ld. counsel for accused that both these facts cannot be relied and in the totality of the circumstances the alleged acts are not proved by the prosecution. As far as these acts are concerned, prosecutrix has stated that accused used to touch her body and kissed her. She has narrated these facts before the Judge in her statement u/sec.164 Cr.P.C. and also in statement before the court. As far as the present case is concerned, it is an admitted fact by the prosecution that the complaint which was first narration of the victim, was torn out by her mother and thereafter Ex.PW3/A was written by the mother of the victim. Now a doubt has been created as to what were the facts which were written in the complaint which was torn out. Further since these specific facts were not in Ex.PW3/A, whether these facts were actually took place prior to the date of reporting or not. In these circumstances, a doubt is created regarding the fact as to whether the facts of alleged sexual harassment in the year 201011 had ever taken place or not. Moreover, no complaint was made for 23 years of the said alleged acts. Hence a doubt is created which goes to the benefit of accused. Moreover no charge u/sec.354 IPC is framed against accused. The other charges i.e. u/sec.354A/354D IPC FIR No. 366/14 State Vs. Lalit Kumar page 10 of 13 11 are not attracted since these offences were incorporated in IPC w.e.f. 03.02.2013 by the amendment Act of 13 of 13.
27 As far as the incidents of the year 2014 is concerned i.e. sending text through SMS on social networking site (facebook) by the accused to the victim and thereby causing harassment is concerned, it appears that the same is not properly investigated by investigating agency. Ex.PW2/P2 i.e. the alleged out put of the messages obtained by PW3 and tendered to investigating agency is not supported with certificate u/sec.65B of IEA. Moreover, CDR (call detail record) of mobile no. 9255909009 is also not a proved document as it lacks certificate u/sec.65B of IEA. Moreover, prosecution has not stated as to how this mobile number 9255909009 is connected either with accused or with the victim. So, in these circumstances, Ex.PW2/P2 and MarkPW6/X are not proved documents. So prosecution failed to establish on record that these are the messages/contents of messages sent by accused to the victim and thereby harassing her by electronic media or through talking on her mobile phone.
28 Hence, in these circumstances prosecution failed to establish any acts of outraging the modesty of the victim in the year 201011 or sexual harassment of the victim by sending messages by accused or talking with her on her mobile phone.
29 Accused is also charged with Sec.506 IPC i.e. criminal intimidation with the allegations that accused threatened the victim not to disclose his relationship with her, otherwise he would tell her family and her family would discontinue her studies and will make her to marry to someone. No such threat is mentioned by the victim in her statement u/sec.161 Cr.P.C. dated 18.08.2014. Similarly, no such fact is mentioned by the victim in her statement u/sec.164 Cr.P.C. Ex.PW1/A. No such fact is deposed by any of the other FIR No. 366/14 State Vs. Lalit Kumar page 11 of 13 12 witnesses. In these circumstances, considering the inconsistencies in the statements of prosecutrix at different points of time, it creates doubt as to whether such threat was ever given or not. Benefit goes in favour of accused. Hence, prosecution failed to prove beyond reasonable doubt that accused had ever extended any criminal intimidation to the victim.
30 However, in this case there are some peculiar facts regarding the manner of the investigation of the fact which took place in 2014. Allegations of the victim was that accused used to harass her by calling her on her mobile phone and also used to send texts as SMSs through social networking site (facebook). To substantiate these allegations, victim and her family had provided the investigating agency/IO, the mobile number/SIM card of victim (on which she received the calls from the accused), as well as her mobile phone including IMEI number. The same was seized by IO vide Ex.PW2/B. However, IO/investigating agency had not taken any pain to get the CDRs of this number which could reflect as to whether accused has contacted the victim or not.
Secondly no effort is done to retrieve the messages Ex.PW2/P2 through FSL despite the photocopies of the same were provided to the IO.
Thirdly and most importantly an irrelevant document i.e. CDRs (Mark PW6/X) of mobile no. 9255909009 was placed on record which does not show as to how it is relevant or connected with complainant or accused. More so, CDRs of mobile no. 9716129991, 9891228272 and 9716928590 were also sought but there is not a wisper as to what happened to the CDRs. Most importantly, the CDR of mobile phone of victim i.e. 7827541121 was never sought by the IO from the concerned mobile operator as reflected from the request form placed on record.
31 As far as this electronic evidence is concerned, the same was at the "arm FIR No. 366/14 State Vs. Lalit Kumar page 12 of 13 13
length" of the IO/investigating agency and the same was not collected.
32 From the perusal of the record, it appears that DW1 i.e. jija of accused is a police constable and this also appears to be an angle regarding this showdy investigation with respect to the electronic evidence and the investigation agency had tried to give benefit to the accused. The same requires probe since the charge sheet/file is scrutinized by IO, SHO as well as ACP concerned before sending to court.
33 So, in view of the abovesaid discussion, following relief/action emerges:
(a) The accused is acquitted for the charges u/sec.354A/354D IPC as these are not attracted since these were not enforced in the year 201011.
(b) Accused is acquitted for the charges u/sec.506 IPC as prosecution failed to prove this said charge.
(c) The accused is acquitted for the charges u/sec.8/12 POCSO Act as it is not attracted since these were not enforced in the year 201011 and the same is not proved by the prosecution for the offences of the year 2014 (as not properly investigated).
(d) Let the copy of the judgment be sent to Commissioner of Police Delhi with directions to direct proper probe regarding the showdy investigation in the matter by the police officials regarding electronic evidence and send the copy of the report/action taken report.
34 Copy of order be given dasti to prosecution.
35 File be consigned to the record room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 01.02.2016 ASJ01/New Delhi District
Patiala House Courts/New Delhi
FIR No. 366/14 State Vs. Lalit Kumar page 13 of 13
14
SC No. 140/14
State Vs. Lalit Kumar
FIR No. 366/14
PS : Naraina
U/sec. 354A/354D/506 IPC & Sec.12 POCSO Act
01.02.2016
Present: Sh. Ravindra Kumar, Ld. APP for State.
Accused present on bail.
Vide separate judgment, announced and dictated in open court, following
relief/action emerges:
(a) The accused is acquitted for the charges u/sec.354A/354D IPC as these
are not attracted since these were not enforced in the year 201011.
(b) Accused is acquitted for the charges u/sec.506 IPC as prosecution failed to prove this said charge.
(c) The accused is acquitted for the charges u/sec.8/12 POCSO Act as it is not attracted since these were not enforced in the year 201011 and the same is not proved by the prosecution for the offences of the year 2014 (as not properly investigated).
(d) Let the copy of the judgment be sent to Commissioner of Police Delhi with directions to direct proper probe regarding the showdy investigation in the matter by the police officials regarding electronic evidence and send the copy of the report/action taken report.
Earlier bail bond cancelled. Surety is discharged.
Accused is directed to furnish personal bond and surety bond u/sec. 437A Cr.P.C.
Copy of order be given dasti to prosecution.
File be consigned to the record room.
(Rakesh Pandit)
ASJ01/PHC/New Delhi District
01.02.2016
FIR No. 366/14 State Vs. Lalit Kumar page 14 of 13