Delhi District Court
State vs Mr.Lalu Kumar. -:: Page 12 Of 12 ::- on 15 February, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE POCSO ACT,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
State
versus
Mr.Lalu Kumar
Son of Mr.Ramji Yadav
Resident of 10/65 Industrial Area,
Kirti Nagar, New Delhi.
(Permanent Address:- Village Nisihara
P.O Tendriya, P.S Kharagpur, District Munger, Bihar.)
First Information Report Number : 227/2017.
Police Station Kirti Nagar.
Under sections 363/366/376 of the Indian Penal Code
and under section 6 of the POCSO Act.
Date of filing of the charge sheet : 10.08.2017.
Arguments concluded on : 15.02.2018.
Date of judgment : 15.02.2018.
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.
Mr. Pradeep Kumar, counsel for the accused.
Prosecutrix is present along with her parents.
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017.
Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code
and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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Investigation Officer/SI Anupama Rathi.
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JUDGMENT
1. Mr. Lalu Kumar, the accused, has been charge sheeted by Police Station Kirti Nagar for the offences under sections 363/366/376 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. Accused Mr.Lalu Kumar has been prosecuted on the allegations that on 17.07.2017, he kidnapped the prosecutrix Ms.X (aged about 14 years) 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 several times and he committed rape upon the prosecutrix repeatedly.
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 New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: identity of Mr.Z is given to the father of the prosecutrix and Ms.Y is given to the mother of the prosecutrix in order to protect the identity of the prosecutrix.
4. After completion of the investigation, the charge sheet was filed in the Court on 10.08.2017.
5. After hearing arguments, charge for offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC was framed against accused Mr.Lalu Kumar vide order dated 10.01.2018 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 (03) witnesses i.e. the prosecutrix Ms.X, as PW1; Mr.Z, father of the prosecutrix, as PW2; and Ms.Y, mother of the prosecutrix, as PW3.
7. The evidence of the prosecutrix Ms.X as PW1 has been recorded in camera. Her father Mr.Z as PW2 and mother Ms.Y as PW3 have also been examined in camera.
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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8. The prosecutrix Ms.X as PW1 has seen accused Mr.Lalu Kumar from behind the screen and she has identified the accused, as Lalu Kumar. She has deposed that "The incident took place on 17.07.2017. On that day at about 7.00 am I left my house for going to school. Instead of going to my school, I went to a park situated in Kirti Nagar. I made a call on the mobile phone of accused Lalu. I know accused Lalu as at that time he was working in a company located in front of my house. I took the phone from an uncle in the park and then made call to accused Lalu. After sometime accused Lalu came in the park and then we boarded a tempo and went to Anand Vihar railway station. Then we boarded a train for Bhagalpur, Bihar. Accused Lalu took me in a hotel at Bhagalpur. It took us 3 days in train for reaching to Bhagalpur. After about 10 minutes of our reaching in the hotel, police officials from Delhi came there. Police took me and accused Lalu to local PS at Bhagalpur. We were kept for one night in the PS at Bhagalpur then we were taken to the Court. Police produced the accused and myself in the court at Bhagalpur. We stayed for one night in a hotel at Bhagalpur and then alongwith police boarded a train for Delhi. We were brought to PS Kirti Nagar. I was taken to a hospital for my medical examination".
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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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 but nothing material for the prosecution has come forth. She has deposed in her cross examination that "I had stated falsely before the lady Judge regarding my marriage and establishing physical relations with me as I wanted the release of accused. Today I am deposing with my free consent and there is no force or pressure upon me to give statement in the Court". She has further deposed in her cross examination that "My statement was recorded by the police during investigation and I have stated the same facts to the police also regarding my marriage and established physical relations with me. However said statement is my incorrect statement".
10.She has denied the suggestion that "It is wrong to suggest that the statement mark X is my correct statement. It is wrong to suggest that I stated before the doctor, lady Judge and before the police that accused married with me and established physical relations with me because he married with me in a temple and established physical relations with me. It is wrong to suggest I want to save the accused from this case and for this reason I had deposed falsely before the Court today".
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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11.In her cross examination on behalf of the accused, the prosecutrix Ms.X (PW1) has deposed that "It is correct that the accused is innocent and has not committed any offence against me. It is correct that the accused had neither kidnapped me nor got married with me nor had physical relations with me. It is correct that I do not have any grievance against the accused".
12.The father of the prosecutrix Mr.Z (PW2) has also not deposed anything incriminating against the accused. In his cross examination on behalf of the accused, he has deposed that "The prosecutrix informed me later on that accused did nothing wrong with her. She also informed that she herself went along with accused. Accused is innocent and I do not want any action against him"
13. The mother of the prosecutrix Ms.Y (PW3) 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. In her cross examination on behalf of the accused, she has admitted that "It is correct that I do not have any grievance against the accused. It is correct that the prosecutrix had not told me anything New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: incriminating against the accused."
14.The prosecution witnesses i.e. the prosecutrix Ms.X as PW1, Mr.Z, father of the prosecutrix (PW2) and Ms. Y, mother of the prosecutrix (PW3) have not deposed an iota of evidence of accused Mr. Lalu Kumar that he committed the offences of kidnapping the prosecutrix, compelling her to marry against her will, forcing or seducing to illicit intercourse, committing penetrative sexual assault and rape upon the prosecutrix.
15.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 parents of the prosecutrix (PW2 and PW3) 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 prosecutrix Ms.X (PW1), father, Ms.Z (PW2) and mother Ms.Y (PW3) who are the star witnesses and the most material New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: witnesses of the prosecution, have not supported the prosecution case.
16. The statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) of the accused Mr.Lalu Kumar 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 parents (PW2 and PW3) have also not deposed anything incriminating against the accused.
17.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.
18.In the light of the aforesaid nature of deposition of the prosecutrix Ms.X (PW1), her father (PW2) and her mother (PW3), 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 New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: 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."
19.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
20.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 : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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21.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).
22.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.Lalu Kumar. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
23.Consequently, no inference can be drawn that the accused Mr.Lalu Kumar is guilty of the charged offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
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24.There is no material on record to show that on 17.07.2017, the accused kidnapped the prosecutrix Ms.X (aged about 14 years) 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 several times and he committed rape upon the prosecutrix repeatedly.
25.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.Lalu Kumar for the offences of kidnapping the minor prosecutrix, compelled her to marry against her will, forcing or seducing to illicit intercourse, committing penetrative sexual assault and rape upon the prosecutrix. The witnesses have not deposed an iota of evidence that accused Mr.Lalu Kumar has committed any of the charged offences.
26.Therefore, in view of above discussion, the conscience of this Court New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: is completely satisfied that the prosecution has failed to bring home the charge against accused Mr. Lalu Kumar for the offences under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
27.Consequently, accused Mr.Lalu Kumar is hereby acquitted of the charges for the offences of kidnapping the minor prosecutrix, compelling her to marry against her will, forcing or seducing to illicit intercourse, committing penetrative sexual assault and rape upon the prosecutrix punishable under sections 363/366 of the IPC, under section 6 of the POCSO Act and under section 376 (2) (n) of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
28.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
29.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
30.One copy of the judgment be given to the Additional Public New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-
::12:: Prosecutor, as requested.
31.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 15th day of February, 2018.
Additional Sessions Judge-01, West, Special Court under the POCSO Act, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 475/2017.
Old Sessions Case Number : 175/2017.
First Information Report Number : 227/2017. Police Station : Kirti Nagar.
Under sections 363/366 /376 of the Indian Penal Code and under section 6 of the POCSO Act.
State versus Mr.Lalu Kumar. -:: Page 12 of 12 ::-