Delhi District Court
In Re vs . on 23 October, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI.
ID No. 02403R0054572013
Date of filing of charge sheet : 10.05.2013
Date of framing of charge : 14.05.2013
Date of final arguments : 19.10.2013
Date of judgment : 23.10.2013
SC No. 63/13
FIR NO. 73/13
PS Sagarpur
U/s 354A IPC & 8 & 10 of POCSO Act
In re:
STATE
Vs.
KRISHAN KUMAR
S/O SH. SARDARE
R/O B129, GALI NO. 12
HARIJAN BASTI
NASIRPUR COLONY
DELHI
APPEARANCES
Present : Mr. Mukul Kumar, Ld. APP for the State
Mr. R. D. Rana, Ld. counsel for the accused.
23.10.2013
JUDGMENT
1. Accused Krishan Kumar son of Sardare has been arraigned for trial on the allegations that he molested and sexually harassed the girl child / prosecutrix aged about 12 years. State v. Krishan Kumar Page 1 of 18 2 FACTS
2. The case of the prosecution is that on 07.04.2013 DD No. 26A was lodged at about 7:45 PM Ex. PW 9/A with Police Station Sagarpur in regard to some quarrel involving a lady and the investigation was marked to ASI Yad Ram (PW9) who alongwith Ct. Som Dutt reached at A63, Harijan Basti, Nasipur Colony, Delhi where he met one girl child aged about 12 years (PW2) and her mother (PW3) and father (PW4) and statement of the girl child Ex. PW2/A was recorded to the effect that "on that day at about 11:30 AM when she was alone in her house, as her parents were away in connection with a work, accused Krishan Kumar who was the landlord of rented accommodation instructed her to go to the fourth floor of the building and close the valve of the water tank; that when she went to the fourth floor to do as instructed, accused Krishan Kumar followed her and kissed her on his mouth and caught hold of her from behind and pressed her breast; that on that she raised alarm and her younger sister also came to the spot and on that accused Krishan Kumar ran away from the spot."
3. On the complaint rukka Ex. PW 9/B was written and sent for registration of FIR which is Ex. PW 9/D recorded at 21:15 hours.
4. It is the case of the prosecution that at the instance of the girl child (PW2) the site plan Ex. PW9/C was prepared and State v. Krishan Kumar Page 2 of 18 3 statements of parents of the girl child were also recorded and the accused who was present there at was arrested at 11:30 PM vide memo Ex. PW 2/D and personal search memo Ex. PW 2/E.
5. It is the case of the prosecution that the girl child was sent for medical examination and on 08.04.2012 statement of the girl child (PW2) was recorded by Ms. Navita Kumari Bagga, Ld. MM, Patiala House Courts, New Delhi u/s 164 Cr.P.C. which is Ex. PW 2/B; that after obtaining a copy of the statement, the girl child was produced before the Child Welfare Committee, Hari Nagar, New Delhi that decided to send the girl for counseling to children home and during the investigation on the request of CWC the statement of the girl child (PW2) was again recorded on 11.04.2013 by Ms. Navita Kumari Bagga, Ld. MM, Patiala House Courts, New Delhi u/s 164 Cr.P.C. which is Ex. PW 2/C; that after obtaining a copy of the statement as per directions of CWC the girl child was restored to the custody of her parents. It is further the case of the prosecution that investigation revealed that date of birth of the girl child (PW2) was 10.10.2001. On completion of investigation the present charge sheet was filed.
CHARGE
6. Suffice to state that accused has been charged for forcibly kissing the girl child besides holding her from behind and pressing her breast in terms of section 354A IPC and under section 8 State v. Krishan Kumar Page 3 of 18 4 and 10 of POCSO Act. Accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
7. Prosecution in order to prove its case examined 9 witnesses. PW2 was the girl child and PW3 and PW4 were her mother and father while PW6 was younger sister of the prosecutrix / girl child. They were the main witnesses of the prosecution and I shall dwell upon their evidence in detail in this judgment.
8. Prosecution examined Dr. Swati Shree (PW1) from EMO, DDU. She testified that she medically examined the patient/girl child and deposed about the MLC which is Ex. PW1/A: PW5 was HC Sarla. She testified that on 11.04.2013 she accompanied the IO ASI Yad Ram to CWC, Nirmal Chhaya where the IO took the custody of the girl child and brought her to Patiala House Courts, New Delhi for recording of her statement u/s 164 Cr.P.C.: PW7 was Ct. Veerwati. She testified that on 07.04.2013 the statement of the girl child was recorded by ASI Yad Ram in her presence. She also testified that she took the girl child to DDU hospital for her medical examination who was accompanied with her parents. She also testified that accused was arrested in her presence: PW8 was W/Ct. Seema. She denied that she accompanied with the girl child/prosecutrix from Police Station to Patiala House Courts, New Delhi for recording of her statement u/s 164 Cr.P.C. on 08.04.2013: Lastly the Investigating Officer ASI Yad Ram was examined as PW9.
State v. Krishan Kumar Page 4 of 18 5
9. It is pertinent to mention here that as there was no dispute regarding the recording of two statements u/s 164 Cr.P.C. Ex. PW 2/B and Ex. PW 2/C, in terms of order dated 29.8.2013, the formal examination of Ms. Navita Kumari Bagga, Ld. MM, Patiala House Courts, New Delhi was dispensed with.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE
10. On the close of the prosecution evidence accused was examined as per section 313 Cr.P.C. on putting the incriminating facts and circumstances appearing against him, accused denied the prosecution case and stated that he had merely reprimanded the girl child for wasting the precious water resources by opening the valve of water tank since several complaints had been received from other tenants; that he scolded the girl child in the presence of Sadhana and Sunil and told such facts to her father in the evening but the father of the girl child was in a drunken state and took offence to scolding of his daughter and falsely implicate in this case to take revenge.
11. In his defence accused examined DW1 Sunil and DW2 Sadhana, tenants in the same building who supported his defence. LEGAL SUBMISSIONS
12. Mr. R. D. Rana, Ld. counsel for the accused has urged that investigation in this case was bad in law as mandatory provision of section 24 of POCSO Act was not complied with and State v. Krishan Kumar Page 5 of 18 6 investigation was made by a male officer of the rank of ASI instead of a lady officer of the rank of SI. He urged that the girl child had correctly stated the facts in her first statement u/s 164 Cr.P.C. Ex. PW 2/B on 08.4.2013 and she had thereafter been tutored by her parents to make a false accusation and falsely implicate the accused and that is how the statement u/s 164 Cr.P.C. recorded on 11.04.2013 Ex. PW2/C can be explained. In this regard, Ld. counsel urged that there was no necessity for the CWC to send the girl child to Nirmal Chhaya. Mr. Rana, Ld. counsel for the accused vehemently urged that father of the prosecutrix was an alcoholic who used to make quarrel all the time with the tenants of the premises which acts had been objected to by other tenants and for that reason he has been falsely implicated in this case. It was urged that testimony of PW2 girl child and her sister PW6 are result of tutoring and coaching by her parents.
ARGUMENTS
13. I have heard Ld. Addl. PP for the State and Ld. counsel for the accused. I have also perused the relevant record/ documentary evidence on the record.
APPRECIATION OF EVIDENCE
14. The prosecution primarily banks upon the testimony of PW2 girl child finding corroboration from the evidence of PW6 her younger sister. Preliminary examination of PW2 girl child by the State v. Krishan Kumar Page 6 of 18 7 court revealed that she was about 12 years of age, studied up to 5th standard and she was able to give rational and intelligible answers. The testimony of PW2 was recorded on 01.6.2013 and she testified that the incident occurred on 7th day of the month. Although she could not tell the month(which ofcourse is inconsequential), she deposed that it happened about one and a half month back at about 11:30 AM; that she was present in the house along with her brothers and sisters and her parents had gone for work as per daily routine. She testified that the accused came to her and instructed her to go to the roof of the house and close the valve of the water tank as the water tap on the third floor had broken down.
15. She then testified that while she was putting a plastic cover on the pipe to stop wastage of water, accused Uncle came from behind kissed her on her mouth, embraced her from behind and also caressed her breast; that she raised alarm and her younger sister immediately came on the roof and on that accused Krishan Kumar went away. Although the testimony of PW2 in the court substantiate the allegations which were revealed in the complaint Ex. PW 2/A, there appears to be more to the story than to meet the eyes.
16. In order to appreciate whether the testimony of PW2 is truthful and thus can be relied upon, it may be seen that the complaint Ex. PW2/A was lodged at about 9 PM and the present FIR came to be recorded on the same day at about 2115 hours Ex. PW State v. Krishan Kumar Page 7 of 18 8 9/D. We may concede the point that delay is explainable as the girl child PW2 was expected to await for her parents to tell them what transpired.
17. Anyhow, PW 2 was produced before Ms. Navita Kumari Bagga, Ld. MM, New Delhi on 08.04.2013 and in her statement Ex. PW 2/B she did not attribute any wrongful act or misconduct on the part of the accused. Her statement u/s 164 Cr.P.C. recorded in vernacular Hindi translated into English reads that valve of the water tank had broken down on 07.4.2013 and she was on the roof at the instance of another tenant in the house when the landlord Krishan Kumar arrived and scolded her and told her to go away from there at once and she followed his instructions.
18. It is pertinent to mention that when the aspect of such statement was put to PW2, she responded that she didn't correctly stated the facts to the Judge on 08.4.2013 since the brothers and relatives of accused Krishan Kumar had called upon her to do so as they wanted to settle the dispute and threatening her parents. In other words PW 2 stated that she was under fear and that is why she did not tell the correct and true facts to the Judge concerned.
19. First thing first, perusal of statement u/s 164 Cr.P.C. demonstrates that Ld. Judge had asked several introductory and preliminary questions to the girl child and it was after assuring herself that the child witness was not under any kind of fear, State v. Krishan Kumar Page 8 of 18 9 coercion and undue influence that the Ld. Judge proceeded to record the statement of the girl child. The girl child was specifically asked whether she wanted to say anything that happened to her on which she replied that nothing was done to her and she did not want to tell anything more.
20. It is further borne out from judicial record that prosecutrix after recording of her statement was sent to Nirmal Chhaya and she was again produced before the Ld. Judge on 11.4.2013 and her statement u/s 164 Cr.P.C. Ex. PW 2/C was recorded de novo in which she stated as under:
Jahan par yeh mujhe le gaya hai waha par ek madam thi jis ne kaha ki court me sach batana, is leye me sach batana chahati hu. Me teesri manzil pe tuti me panni laga hari thi kunki tuti tut gaye thi. Tab waha par makan malik aa gaya. Weh mujh se bola ki uppar tanki ka ball (valve) bandh kar ke aa. Phir me uppar gaye aur makan malik eet (brick) le ke peeche se aa gaya. Me tanki se neche utree.
Makan malik ne mujhe pakad leya and mere yeh dono (pointing towards her breasts) daba deye. Phir bola ke ek pappi de de. Phir me chilai to mere behan aa gaye aur me iske sath neche bhag aaye. Us din mene sach nahi bataya tha kyunki makan malik ke bhaeyo ne kaha tha ke aesa bol dena ke usne kuch nahi kiya mujhe dant ke neche bhaga deya to ladaye jaladi khatam ho jayege.
21. The facts disclosed above begs the question as to:
whether the statement of the girl child recorded on 08.4.2013 was correct or was it the statement that was recorded on 11.4.2013? At the cost of repetition, the girl child had studied up to 5th standard coming from poor and ignorant strata of the society and although a child witness is competent to depose and his / her evidence is State v. Krishan Kumar Page 9 of 18 10 relevant and admissible in terms of section 118 of Indian Evidence Act. I may hasten to point out that a child many times suffers from several disabilities concerning his power of observation, retention and reproduction and therefore the testimony of the child witness should be accepted after very careful consideration. In the case of Golla Yelugu Govindu v. State of A. P, 2008 CRI. L. J. 2607, their lordships of the Apex Court summorized the proposition of law in regard to evidence of a child witness and observed as under:
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. (Para 9)
22. Thus, the mandate of law is that the testimony of a child witness should be carefully scrutinized and examined so far as to rule out any possibility of tutoring. No doubt that if a child is capable of rational understanding and gives truthful version, conviction could be based on the evidence of such child witness. At the cost of repetition, the child witness is also susceptible to being State v. Krishan Kumar Page 10 of 18 11 tutored since tutoring by someone in position of guardianship or authority makes the child believe in something which may not be existing. Reference in this connection can be had to decision in State of UP v. Ashok, AIR 2000 SC 1 066; Rattan Singh Dal Sukh Bhai v. State of Gujarat, 2004 SSC (3) Crl. 7.
23. In the light of the said observation, the evidence of PW4 father of the prosecutrix revealed that he had taken the girl child to the Police Station alongwith his wife and that time he was accompanied with some relatives as well as social worker of NGO. Although the allegations in the complaint Ex. PW 2/A were quite clear, the version of the child witness PW2 that she was under fear cannot be believed in as much as from the time the alleged incident occurred till the matter was reported to the police, the child girl was with her parents and PW2 testified that she was with the social worker from NGO from 10 PM to 10:30 PM in the night and thereafter she left and resided overnight with her maternal uncle and came to the Police Station the very next day.
24. Bare perusal of the testimony of PW2 and her mother PW3 as well as PW7 Ct. Veerwati would show that the girl child was taken to the hospital for medical examination in the evening on 07.04.2013 and at that time she was accompanied with her parents. There is nothing in the testimony of PW3 mother of the prosecutrix and PW7 that would show that anyone from the side of the accused State v. Krishan Kumar Page 11 of 18 12 had tried to approach or intimidate her. It is in evidence that on the next day the prosecutrix was brought to the Police Station from where she was taken to the Court where her statement was recorded before the court of Ms. Navita Kumari Bagga, Ld. MM, New Delhi.
25. There is again nothing in the testimony of any of the witnesses that the child girl had been approached or coached or any undue influence was exercised upon her before her statement was recorded u/s 164 Cr.P.C nor there is anything in the testimony of her parents that any one from the side of the accused approached them for compromise or threatened them with dire consequences if the matter is not resolved..
26. What I find most intriguing is that after recording of statement of the prosecutrix on 08.4.2013, she instead of being released to the custody of her parents was sent to Nirmal Chhaya. There is no apparent reason why such course was adopted. PW2 girl child admitted the fact that while she was in Nirmal Chhaya for two days, her parents came to see her on both days. There is no explanation as to why the IO thought it expedient to record the statement of the prosecutrix second time on 11.04.2013. There is strong possibility that the parents of the child had met her while she was confined in Nirmal Chhaya and she had been tutored or coached and persuaded to depose falsely against the accused. The choice of words in her statement second time before the ld Judge State v. Krishan Kumar Page 12 of 18 13 indicates that she had come prepared to wriggle out of her first statement. In the said scenario, it was incumbent that the prosecution should have examined the social counselor who examined and counselled the child.
27. There was no apparent reason to send / retain the girl child at Nirmal Chhaya as neither she was juvenile delinquent nor a destitute in need of care or protection. If there was any threat from the side of accused, nothing was spelled out by PW 3 and PW4, parents of the girl child and admittedly they had the assistance of some one from an NGO.
28. Thus, the version of the incident given by PW2 does not appears to be trustworthy and cannot be relied upon. Any how even if the presumption u/s 29 of the POCSO Act is taken that such offence was committed, as a rule of caution it is necessary to look for corroboration. PW6 the younger sister of the prosecutrix who was about 8 years of age in her preliminary examination by the court exhibited that she was capable of giving rational and intelligible answers. However, she probably in a well rehearsed manner deposed that the incident occurred on 07.04.2013 at about 11:30 PM and she witnessed what accused had done to her sister.
29. I may hasten to add that the recitation was in a breathless manner with out any pause or blink of eyes during which time she constantly stared at her mother. The cross examination of State v. Krishan Kumar Page 13 of 18 14 PW6 clearly demonstrates that she had been tutored to depose in the manner that she did since her version that incident occurred on 07.04.2013 was followed by a response that she did not know how many months were there in a year nor she was able to tell whether it was month of January, February, March or April. She could not spell out what she meant by four in 07.04.2013 or what is 2013. or what she means by seventh in such figures. Anyhow, the version of PW2 that her sister had later came on the roof is contrary to the version of PW6 that she had followed her sister on the roof and had seen the incident happening.
30. That is not all. Both PW2 and PW6 admitted that their father used to consume alcohol or opium and both witnesses also admitted that their Aunt Sadhana was residing on the 3rd Floor of the house whom they used to call Chachi who was present in her accommodation. The said fact was also admitted by PW3, mother as well as PW4 father. The accused is able to discharge reverse burden placed on him from the evidence of DW2 Sadhana corroborated by DW 1 Sunil who testified that at the time of incident she was present at the spot and since PW2 used to waste the water by opening the valve of the water tank and she was not listening to them or heeding to their advice, accused being the landlord of the house was called who scolded PW2 for wasting the precious water on which PW2 started crying and went down stairs.
State v. Krishan Kumar Page 14 of 18 15
31. It is further in the testimony of DW1 and DW2 that accused never went to the fourth floor. While PW2, her mother PW3 and PW6 admitted that accused used to take liquor. PW4 father unabashedly denied that he was an alcoholic. The sum result of the evidence of the witnesses vis a vis the testimony of DW1 Sunil and DW2 Sadhana would raise an inference that entire incident was concocted by PW4 in collusion with his wife who tutored their children to teach a lesson to the accused who was the landlord of the house. It appears that the parents of the child were annoyed as the accused had called upon them to vacate their tenancy portion for constant nuisance on the part of PW4 and the act of scolding by the accused aggravated their annoyance and gave them room to concoct a different version of the incident.
FINAL DECISION
32. To sum up, it is probable that the girl child hardly had any say while recording the complaint Ex. PW2/A in the company of her parents, relatives and assistance from the NGO. PW2 and/or PW6 did not complain to DW1 or DW2 or for that matter any body else about the incident immediately after it happened. Version of the incident in her first statement recorded on 08.4.2013 cannot be discarded as there is no iota of evidence that she was at any point of time put under any kind of fear for herself or her parents. It comes in the evidence that parents of the girl child met her at Nirmal State v. Krishan Kumar Page 15 of 18 16 Chhaya on 9th as well as 10th April, 2013 and it is probably at their instance in collusion with the IO that the second statement was made on 11.4.2013. The parents of the child were holding grudges against the accused. The testimony of PW2 while itself under cloud does not find corroboration from the testimony of PW6 who was probably coached or tutored to depose on dictated lines. The testimony of DW2 Sadhana and DW1 Sunil, their own relative, who were present in the house at the time of incident puts a serious crack in the prosecution case and at the same time discharging the reverse onus placed on the accused u/s 30 of the POCSO Act. It appears that the I.O deliberately did not record the statements of such two witnesses despite their availability all the time. I.O failed to conduct a fair and impartial investigation as he on his own took the child to Nirmal Chhaya. There is no explanation why he chose to do so as it is no where in his testimony that any threat was extended by anyone from the side of the accused to the complainant party. DECISION
33. In the said view of the discussion, accused Krishan Kumar is accorded the benefit of doubt and acquitted of all the charges. He is on court bail. His personal bond is cancelled surety is discharged.
State v. Krishan Kumar Page 16 of 18 17
34. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 23.10.2013 ASJ01/PHC/NEW DELHI
23.10.2013
State v. Krishan Kumar Page 17 of 18
18
SC No. 63/13
STATE Vs. KRISHAN KUMAR
23.10.2013
Present : Mr. Mukul Kumar, Ld. APP for the State
Mr. R. D. Rana, Ld. counsel for the accused.
Vide separate judgment of even date, accused Krishan Kumar is accorded the benefit of doubt and acquitted of all the charges. He is on court bail. His personal bond is cancelled surety is discharged.
File be consigned to Record Room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI 23.10.2013 State v. Krishan Kumar Page 18 of 18