Delhi District Court
State vs Mr.Kaushal. -:: Page 12 Of 12 ::- on 26 March, 2018
-:: 12 ::-
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 : 419/2017.
Old Sessions Case Number : 147/2017.
State
versus
Mr.Kaushal
Son of Mr.Rajesh,
Resident of Jhuggi number C-207,
Rakhi Market, Zakhira, Delhi.
First Information Report Number : 169/2017.
Police Station Moti Nagar.
Under sections 376/354/342/506 of the Indian Penal Code
and under section 4 of the POCSO Act.
Date of filing of the charge sheet : 17.07.2017.
Arguments concluded on : 26.03.2018.
Date of judgment : 26.03.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused has been produced from judicial custody.
New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017.
Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code
and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
Mr.Vikram Singh Panwar, counsel for accused.
Prosecutrix is present along with her paternal aunt/bua.
Investigation Officer/SI Sushma.
**********************************************************
JUDGMENT
1. Mr. Kaushal, the accused, has been charge sheeted by Police Station Moti Nagar for the offences under sections 376/354/342/506 of the Indian Penal Code (hereinafter referred to as the IPC) and under section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Kaushal has been prosecuted on the allegations that on 02.05.2017, he kidnapped the prosecutrix Ms. X (who is minor) from her lawful guardianship; he kidnapped /abducted the prosecutrix with intention that she may be compelled or knowingly that it is likely that she will be compelled to marry him against her will or in order that she may be forced or seduced to illicit intercourse or knowingly it would be likely that she would be forced or induced to illicit intercourse; he committed penetrative sexual assault upon the prosecutrix; he forcefully established New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
physical relations with the prosecutrix on the pretext of marriage, committed rape upon the prosecutrix; and he criminally intimated the prosecutrix by extending threats to kill her and her brothers, if she would inform the incident to anyone.
3. 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. Fictitious identity of Ms.Y is given to the paternal aunt / bua of the prosecutrix in order to protect the identity of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed before the Court on 17.07.2017.
5. After hearing arguments, charge for offences under sections 363/366 IPC and under section 4 of the POCSO Act and under sections 376/506 IPC was framed against accused Mr.Kaushal vide order dated 23.12.2017 by 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 New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
(02) witnesses i.e. the prosecutrix Ms.X, as PW1 and Ms.Y, paternal aunt/ bua of the prosecutrix, as PW2.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her paternal aunt / bua Ms.Y as PW2 has also been examined in camera.
8. The prosecutrix Ms.X as PW1 has seen accused Mr. Kaushal through the screen and she has identified the accused as Kaushal. She has deposed that "A scuffle took place between me and accused Kaushal over some petty matter. My uncle/Chacha took me to police station for lodging the complaint. My uncle asked me to put thumb impression on a blank paper. I am illiterate. I do not know anything else about the present case." She has further deposed that "Accused has not committed any offence. He has not established physical relations with me. I pray that accused may be acquitted as he is innocent."
9. As the prosecutrix Ms.X (PW1) was hostile and had retracted from her earlier statement, the Additional Public Prosecutor has cross- New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
examined her but nothing material for the prosecution has come forth. She has denied the suggestion that "It is wrong to suggest that I am deposing falsely as I have been won over by the accused. It is wrong to suggest that I have deposed falsely in order to save the accused."
10.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that accused Kaushal has not committed any offence against me. It is correct that he is innocent. It is correct that the accused had neither kidnapped me nor threatened me nor raped me. I again pray that accused Kaushal may be acquitted."
11. The paternal aunt/ bua of the prosecutrix Ms.Y (PW2) has also not deposed anything incriminating against the accused. She was declared hostile by the prosecution but nothing material for the prosecution came forth in her lengthy cross examination.
12.In her cross examination on behalf of the accused, she has admitted that "It is correct that accused Kaushal has not committed any offence against my niece. It is correct that he is innocent. It is New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
correct that the prosecutrix did not tell me that the accused had kidnapped her, threatened her and raped her."
13.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1 and Ms. Y, paternal aunt/bua of the prosecutrix (PW2) have not deposed an iota of evidence of accused Mr.Kaushal that he committed the offences of kidnapping the minor prosecutrix, of compelling her to marry him, of forcing or seducing her to illicit intercourse, of penetrative sexual assault, of raping her and of threatening her.
14.In the circumstances, as the prosecutrix Ms.X (PW1), who is the star witness, has turned hostile and has not supported the prosecution case and more importantly has not assigned any criminal role to the accused as well as the fact that the paternal aunt/ bua of the prosecutrix (PW2) has 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 New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
evidence of formal or official witnesses when the prosecutrix Ms.X (PW1) and paternal aunt/ bua Ms.Y (PW2) who are the star witnesses and the most material witnesses of the prosecution, have not supported the prosecution case.
15. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr. Kaushal is dispensed with as there is nothing incriminating against him as the prosecutrix Ms.X (PW1) is hostile and nothing material has come forth for the prosecution in her cross examination by the Additional Public Prosecutor for the State and her paternal aunt/ bua (PW2) has also not deposed anything incriminating against the accused.
16.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.
17.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1) and paternal aunt/ bua Ms.Y (PW2), who are the star New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
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 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."
18.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
19.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
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.
20.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).
21.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 New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
anything incriminating against accused Mr.Kaushal. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
22.Consequently, no inference can be drawn that the accused Mr. Kaushal is guilty of the charged offences under sections 363/366 IPC, under section 4 of the POCSO Act and under sections 376/506 of the IPC.
23.There is no material on record to show that on 02.05.2017, accused kidnapped the prosecutrix Ms. X (who is minor) from her lawful guardianship; he kidnapped/abducted the prosecutrix with intention that she may be compelled or knowingly that it is likely that she will be compelled to marry him against her will or in order that she may be forced or seduced to illicit intercourse or knowingly it would be likely that she would be forced or induced to illicit intercourse; he committed penetrative sexual assault upon the prosecutrix; he forcefully established physical relations with the New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
prosecutrix on the pretext of marriage committed rape upon the prosecutrix; and he criminally intimated the prosecutrix by extending threats to kill her and her brothers, if she would inform the incident to anyone
24.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.Kaushal of kidnapping the minor prosecutrix, of compelling her to marry him, of forcing or seducing her to illicit intercourse, of penetrative sexual assault, of raping her and of threatening her. The witnesses have not deposed an iota of evidence that accused Mr.Kaushal has committed any of the charged offences.
25.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.Kaushal for the offences under sections 363/366 IPC, under section 4 of the POCSO Act and under sections 376/506 of the IPC.
New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
26.Consequently, accused Mr.Kaushal is hereby acquitted of the charges for the offences of kidnapping the minor prosecutrix, of compelling her to marry him, of forcing or seducing her to illicit intercourse, of penetrative sexual assault, of raping her and of threatening her punishable under sections 363/366 IPC, under section 4 of the POCSO Act and under sections 376/506 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
27.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
28.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
29.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-
-:: 12 ::-
30.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 ANIL SHARMA Date: 2018.04.02 SHARMA 14:28:30 +0530 Announced in the open Court on (NIVEDITA ANIL SHARMA) this 26th day of March, 2018. Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number :419/2017.
Old Sessions Case Number : 147/2017.
First Information Report Number : 169/2017. Police Station : Moti Nagar.
Under sections 376/354 /342/506 of the Indian Penal Code and under section 4 of the POCSO Act.
State versus Mr.Kaushal. -:: Page 12 of 12 ::-