Delhi District Court
State vs Mr.V. -:: Page 1 Of 10 ::- on 6 April, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 39/2017.
Old Sessions Case Number : 11/2017.
State
versus
Mr.V
(Name, parentage and address of the accused are withheld as the accused
is the father of the victim boy and his identity is to be protected)
First Information Report Number : 341/2016.
Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code
and under section 10 of the POCSO Act.
Date of filing of the charge sheet : 13.01.2017.
Arguments concluded on : 06.04.2018.
Date of judgment : 06.04.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms.Shradha Vaid, counsel for Delhi Commission for
Women.
Accused Mr.V on bail with counsel Mr.Rahul Kumar
Teotia.
Mother of the victim boy is present.
Investigation Officer SI Amit Tyagi.
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JUDGMENT
1. At the outset, it is pertinent to mention that the name, parentage and address of the accused are withheld as the accused is the father New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 1 of 10 ::-
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of the victim boy and the identity of the child is to be protected. The accused is hereinafter addressed as Mr.V to protect the identity of the victim boy.
2. The name, parentage, address and particulars of the victim boy, who is the son of the accused, are mentioned in the file and are withheld to protect his identity and he is hereinafter addressed as Master X, a fictitious identity given to him.
3. Mr.V, the accused, has been charge sheeted by Police Station Ranjit Nagar for the offences under section 506 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
4. Accused Mr.V, has been prosecuted on the allegations that during the period from February, 2016 till 03.08.2016, he repeatedly applied his mouth for sucking the private part of his son Master X (aged around three and half years) and he criminally intimidated the victim boy Master X by extending threats to him for not disclosing about the offence to anyone otherwise he would kill him.
5. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 13.01.2017.
New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 2 of 10 ::-
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6. After hearing arguments, charge for offences under section 6 of the POCSO Act and under section 506 of the IPC was framed against accused Mr.V vide order dated 02.06.2017 by this Court to which the accused had pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution has examined as many as two (02) witnesses i.e. Master X, victim boy, as PW1 and Ms. Y, mother of the prosecutrix, as PW2. Fictitious identity of Ms.Y is given to the mother of the victim boy who is the wife of the accused, in order to protect the identity of the victim boy.
8. The evidence of the victim boy Master X as PW1 has been recorded in the camera. His mother Ms.Y as PW2 has also been examined in camera.
9. All the precautions and safe guards as per the directions of Hon'ble Delhi High Court and the Supreme Court have been taken which are required while recording the evidence of the victim boy. Guidelines for recording evidence of vulnerable witnesses in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.
10.Preliminary inquiries were made from the victim boy and it appears that he is well oriented and is capable of giving rational answers to New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 3 of 10 ::-
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questions. He understands the sanctity of oath. The victim boy appears to be giving his evidence voluntarily and without any threat, pressure, fear, influence or coercion.
11.During examination in chief of the victim boy Master.X as PW1 , he has deposed that "Mere Papa achche hain. Mujhe nahi marte hain. Shetani karne par muijhe mere mummy, papa daant te hain. Papa ne meri nikhar nahi utari thi. Papa ne mere susu ko kabhi nahi pakra. Papa ne mure susu apne muh me nahi dala tha. Papa ne mujhse gussha nahi kiya tha." He has deposed that his father is good and does not beat him. His parents scold him when he is naughty. His father did not hold his private part nor put it in his mouth. His father does not get angry with him.
12. During his examination in chief, the Additional Public Prosecutor for State has requested to drop Master X from the list of prosecution witnesses as due to lapse of time, as the victim boy was only three and a half years old when the offence was committed, he may have forgotten the facts.
13.On the request and statement of the Additional Public Prosecutor for the State, evidence of Master X i.e. victim boy was stopped and his name was dropped from the list of prosecution witnesses.
14.The mother of the prosecutrix Ms.Y (PW1) has also not deposed anything incriminating against the accused. The mother of the New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 4 of 10 ::-
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victim boy has been cross examined by the Additional Public Prosecutor at length but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that under the pressure of accused and his family members, I had made a false statement before the learned Judge under section 164 Cr. P.C. It is wrong to suggest that I am deposing falsely under the pressure of my husband and his family members. It is wrong to suggest that I am giving a statement in favour of accused in order to save him from this case."
15. In her cross examination on behalf of the accused, the mother of the victim boy Ms.Y (PW2) has admitted that "It is correct that I had matrimonial disputes with my husband and the present case was registered only regarding the same. It is correct that accused is innocent and has not committed any wrong act upon the victim boy."
16.Both the witnesses PWs 1 and 2 have not deposed an iota of evidence of accused Mr.V that he committed the offences of penetrative sexual assault and of extending threats to the victim boy. The evidence of PW2 clearly absolves the accused. Even the victim boy has not stated anything incriminating against the accused.
New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 5 of 10 ::-
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17.In the circumstances, as the complainant, who is the mother of the victim boy, has turned hostile and has 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 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 complainant/ mother Ms.Y (PW2) the most material witness, has not supported the prosecution case and has not deposed anything incriminating against the accused.
18.Even Master X the minor victim boy (PW1) has also not deposed anything incriminating against the accused who is his father.
19.The statement under section 313 of the Cr.P.C of the accused Mr.V is dispensed with as there is nothing incriminating against him as the complainant / mother Ms.Y (PW2), who is the wife of the accused, is hostile and nothing material has come forth for the prosecution in the evidence of PWs 1 and 2.
20.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.
New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 6 of 10 ::-
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21.In the light of the aforesaid nature of deposition of the victim boy Master X (PW1) and her mother Ms.Y (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 their earlier statements and turned hostile. Nothing material for the prosecution has come forth in their cross examination on behalf of the State. They have, in fact, deposed that the accused has not committed any offence against the victim boy. 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."
22.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
23.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 New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 7 of 10 ::-
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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.
24.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).
25.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.V. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
26.Consequently, no inference can be drawn that the accused Mr.V is guilty of the charged offences under section 6 of POCSO Act and under section 506 of the IPC.
New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 8 of 10 ::-
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27.There is no material on record to show that during the period from during the period from February, 2016 till 03.08.2016, accused repeatedly applied his mouth for sucking the private part of his son Master X (aged around three and half years) and he criminally intimidated the victim Master X by extending threats to him for not disclosing about the offence to anyone otherwise he would kill him.
28.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.V for the offences of committing penetrative sexual assault and of threatening the minor victim boy. 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.V has committed any of the charged offences.
29.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.V for the offences under section 6 of the POCSO Act and under section 506 of the IPC.
30.Consequently, accused Mr.V is hereby acquitted of the charges for the offences of committing penetrative sexual assault and of threatening the minor victim boy, his son, punishable under section 6 of the POCSO Act and under section 506 of the IPC.
New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 9 of 10 ::-
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COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
31.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
32.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
33.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
34.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record room.
Digitally signed by NIVEDITA NIVEDITA ANIL SHARMA
ANIL SHARMA Date: 2018.04.09 11:08:39
+0530
Announced in the open Court on (NIVEDITA ANIL SHARMA)
this 06th day of April, 2018. Additional Sessions Judge-01, Special Court Under The POCSO Act, West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 39/2017 Old Sessions Case Number : 11/2017.
First Information Report Number : 341/2016. Police Station : Ranjit Nagar.
Under section 506 of the Indian Penal Code and under section 10 of the POCSO Act.
State versus Mr.V. -:: Page 10 of 10 ::-