Delhi District Court
State vs . Santosh on 25 January, 2014
State Vs. Santosh
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 79 of 2013
ID No. 02401R0181902013
FIR No. : 25/13
Police Station : Gulabi Bagh
Under Section : 506/509 IPC
& 12 of POCSO Act
State
Versus
SANTOSH KUMAR
S/o Bansi Lal
R/o 59/2, Railway Colony
Subzi Mandi, Delhi.
.............Accused
Date of Institution : 12.04.2013
Date of Judgment reserved on : 17.01.2014
Date of judgment : 25.01.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State
Sh. Dinesh Sharma, Advocate, counsel for accused
SC No. 79/13 Page 1 of 15
State Vs. Santosh
J U D G M E N T :-
1. Briefly stated facts of prosecution case are that on February 18, 2013 at about 6:12 P.M., an intimation was received from police control room through wireless operator that someone had misbehaved with a girl at Barat Ghar located near DDA flats, Pratap Nagar, Subzi Mandi. Said information was conveyed to the police control room from mobile phone bearing No. 9250523200. Accordingly, said information was reduced into writing at police station Gulabi Bagh vide DD No 25/A (Ex. PW5/A) and same was assigned to SI Vijay Kumar who along with constable Damodar left for the place of occurrence.
(i) It was alleged that father of victim (in order to withhold the identity of victim, his identity is also withheld and hereinafter he is referred to as complainant or father of victim) met there and got recorded his statement (Ex. PW1/A) to the police alleging that at about 6:45 PM, someone informed him at his shop located on pavement near Sabzi Mandi, Railway Station that his daughter was weeping near gate of Railway colony and public persons were beating one boy. On hearing this, complainant rushed towards the railway colony and when he entered the gate of railway colony, he saw that his daughter aged about 11 years was crying loudly.
(since she is the victim of sexual assault, her identify is withheld and hereinafter she is referred to as victim). It was alleged that she was scared and pointed out towards the accused Santosh Kumar who was there and told that when she reached near the gate, accused came to her and opened the zip of his pant and showed his penis to her asking her to catch hold the same and when she refused, he threatened her that if she disclosed the incident to anyone, he would kill her. Upon this, she raised alarm, consequently public persons gathered SC No. 79/13 Page 2 of 15 State Vs. Santosh there and they started beating to him. It was alleged that in the mean time, someone made a call to the police at 100 number. On his statement, an FIR for the offence punishable under Section 506 IPC read with Section 12 of POCSO Act was got registered.
(ii) Accused was arrested. Accused and victim were medically examined. Blood sample of accused was also taken. During investigation, statement of victim under Section 164 Cr.P.C was got recorded. Documents from her school regarding her date of birth were seized. Her date of birth certificate was also seized.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 506/509 IPC read with Section 12 of POCSO Act. Accordingly, cognizance was taken.
3. After complying with the provisions of Section 207 Code of Criminal Procedure, vide order dated April 16, 2013, a charge for the offence punishable under Section 509/506 IPC read with Section 12 of POCSO Act was framed to which accused pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 8 witnesses:-
PW1 Complainant, father of victim
PW2 Smt. 'X' (since she is the mother of victim and in order
to withhold the identity of victim, her identity is also withheld and hereinafter she is referred to as mother of the victim) SC No. 79/13 Page 3 of 15 State Vs. Santosh PW3 Victim herself PW4 Sh. Dinesh Kumar, medical record clerk, proved the date of birth of victim PW5 HC Ghanender Prasad, duty officer PW6 Const. Damodar, joined the investigation with investigating officer PW7 Const. Raj Kumar, informed the control room PW8 SI Vijay Kumar, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr.P.C wherein he took the plea that he was attending the call of nature near the thaiya of PW1 and when he raised objection, hot words were exchanged between him and PW1 which converted into a scuffle. Thereafter, public persons gathered there and separated them. It was submitted that when he was going, PW2 called him and caught hold him and thereafter beaten him mercilessly and snatched his mobile phone and cash amounting ` 5500/- which he was having at that time and falsely implicated him in this case. In order to show his innocence, he examined Rohit as DW1.
6. Learned counsel appearing for the accused sagaciously contended that though accused is also prosecuted for the offence punishable under Section 12 of POCSO Act, yet prosecution cannot claim any presumption under Section 29 of the Act in this matter as the same is not applicable for the offence punishable under Section 12 of the POCSO Act. It was thus contended that prosecution has to establish its case beyond the shadow of all reasonable doubts. It was submitted that prosecution case is based on the testimony of PW1, PW2 and PW3 but they made an attempt to set up a new case during trial by making SC No. 79/13 Page 4 of 15 State Vs. Santosh improvements in their testimony, thus, it was argued that no reliance can be placed on their testimony. It was further submitted that there are material contradictions between the deposition of PW1, PW2 and PW3. It was further submitted that PW3 was a child of 11 years at the time of incident, thus her testimony is to be appreciated cautiously to ensure that she has not been tutored. It was argued that PW3 has also set up a new case in her deposition and her testimony is not corroborated by any independent corner, thus, no reliance can be placed on her testimony. It was contended that infact accused was urinating near the thaiya of complainant and upon this hot words were exchanged between accused and PW1 which led to scuffle. Though they were separated by public persons but PW1 called him and beaten him. He had also snatched his mobile phone and cash amounting ` 5500/-. When public person (PW7) saw him in injured condition, he made a call to the police and police took him to the hospital. It was submitted that to save himself, PW1 used his daughter to falsely implicate him in this case.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that presumption is to be drawn in favour of prosecution as accused is also charge-sheeted for the offence punishable under Section 12 of POCSO Act. It was further submitted that there is no material contradiction between the testimony of PW1, PW2 and PW3 and whatever contradictions are pointed out by learned counsel are not fatal to the prosecution case. It was further submitted that mere fact that investigating officer failed to find any independent witness is not sufficient to discard the testimony of victim which is otherwise trustworthy. It was submitted that accused has concocted a false story to save himself from conviction.
SC No. 79/13 Page 5 of 158. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
9. First pivotal question emerges as to whether prosecution is entitled for presumption as provided under Section 29 of POCSO Act or not?
10. Section 29 of the Act reads as under:
29. Presumption as to certain offences -
Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
(emphasis supplied)
11. Bare perusal of Section 29 reveals that presumption in favour of prosecution is available only for committing or abetting or attempting to commit any offence punishable under Sections 3, 5, 7 & 9 of the Act. Admittedly, accused is charged for sexual harassment, which is defined under Section 11 of POCSO Act. Since accused has not been charged for any of the offences as mentioned in Section 29 of the Act, prosecution cannot claim any presumption under Section 29 of the Act. It means that prosecution has to prove its case beyond reasonable doubt.
12. Sexual harassment is defined under Section 11 of the Act. Certain acts as recited in clause-(i) to (vi) therein amounts to sexual harassment upon a child if any of such act is committed by any person with SC No. 79/13 Page 6 of 15 State Vs. Santosh sexual intent. Thus, to prove the guilt of accused for the sexual harassment, prosecution has to establish that the said person had committed the act as recited in clause no. (i) to (vi) with a sexual intent. Sexual intent is defined under Explanation to Section 11 and same reads as under:-
Explanation: "Any question which involves 'sexual intent' shall be question of the fact."
(emphasis supplied)
13. Now it becomes clear that question which involves 'sexual intent' shall be question of fact. Thus, to prove whether any person had any sexual intent at the time of committing an act as recited in clause (i) to (vi)), prosecution has to establish that the said person had sexual intent and prosecution has to prove the same like any other fact.
14. Next question emerges as to whether PW1, PW2 and PW3 made any attempt to set up a new case during trial by making improvements in their deposition or not?
15. Admittedly prosecution case is based on the sole testimony of PW3 i.e victim who was about 11 years of age at the time of incident. Now question arises as to whether conviction can be recorded on the sole testimony of a child witness or not? This issue was dealt by the Apex Court in "Virendra versus State of UP (2008) 16 SCC 582. Relevant paras are 18 to 21 and same are reproduced as under:
18. The Evidence Act, 1872 does not prescribed any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, section 118 of the Evidence Act envisages that:
"118. Who may testify - All persons shall be competent to testify unless the Court consider that SC No. 79/13 Page 7 of 15 State Vs. Santosh they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
20. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341: 1997 SCC (Cri) 685] it was held as follows: (SCC p. 343 para 5) "5. .....A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answer thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
19. "A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
21. Subsequently, in Ratansinh Dalsukhbahai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that:
"the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possessions or lack of intelligence, and the 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"
(emphasis supplied) SC No. 79/13 Page 8 of 15 State Vs. Santosh
16. From the above, it becomes clear that before recording conviction on the sole testimony of a child witness i.e PW3, Court has to ensures whether the victim PW3 is a reliable witness or not. If the testimony of PW3 is found trustworthy and reliable, conviction can be recorded on her sole testimony otherwise accused will be entitled for benefit of doubt.
17. Prosecution has set up a case against the accused that PW1 father of the victim had made a complaint Ex.PW1/A alleging that at about 5.45 PM, some person came to his thaiya (temporary shop) and informed him that his daughter was crying near railway colony gate and some persons were beating a boy, consequently, he rushed there and saw that his daughter PW3 was crying there and she was scared but when PW1 graced the witness box, he set up a new case by deposing that at about between 5:30 PM to 5:45 PM, PW3 came to his shop to take money for vegetables from market and after taking money she left from his shop. He further deposed that after 10-15 minutes, his wife came to his shop and told him that one boy had misbehaved with their daughter and asked him to call police. Accordingly, he along with the police reached the place of occurrence. He further deposed that police took him, his daughter, his wife and the accused to the police station. He further deposed that when he reached the spot along with the police, his daughter was inside the jhuggi. The said portions were duly confronted during cross-examination and he failed to give any reasonable explanation why he has set up a new case during his deposition.
18. Now coming to the testimony of PW2 i.e. mother of victim and wife of PW1. From her testimony, it also becomes clear that she had also set up a new case in her deposition. In her testimony, she deposed SC No. 79/13 Page 9 of 15 State Vs. Santosh that at about 5:30 P.M., her daughter came to house while she was weeping. Though she tried to ask about the cause of weeping but she was unable to explain, however she was saying that she would not go outside and further deposed that she noticed that her daughter was scared and when she persuaded her and took her daughter outside the jhuggi and asked repeatedly what had happened. After seeing the accused, her daughter became scared and tried to ran away and when she asked why she so scared after seeing the accused, she narrated the incident. But these facts are missing in her statement given to the police. At the time of lodging FIR, she set up a case that a boy informed her at her house that someone had teased the victim in the park, consequently, she reached there and found that persons were gathered there. Her husband was also present there and when they made inquiry from their daughter, she narrated the incident. Thus, it becomes clear that PW2 also set up a new case during her deposition but she failed to give any reasonable explanation why she had set up a new version in her testimony and why she had not stated so before the police and why she had disclosed different facts before the police during investigation.
19. Now coming to the testimony of PW3.
20. PW3 in her statement recorded under Section 164 Cr. P.C. alleged that she knew the accused previously as he used to buy articles on credit basis from the shop of her father. She deposed that while she was coming back from the shop of her father, accused was present near the park and after seeing her, he called her and thereafter, he opened the zip of his pant and asked her to hold his penis but she refused. Thereafter, accused threatened the victim if she disclosed the incident to anyone, he would kill her, consequently, she started weeping and public persons SC No. 79/13 Page 10 of 15 State Vs. Santosh gathered there. Thus, in her statement she no where alleged that after the incident, she rushed to her house and she narrated the incident to her mother. Rather she deposed that when she was crying, her parents also reached there and public persons had beaten the accused. Thus, there is a material contradiction between testimony of PW2 and PW3. However when she appeared in the witness box, she gave a different version. She deposed that after the incident she went to her house and told the incident to her mother and thereafter her mother caught hold the accused with the help of others. In her cross-examination, she deposed that when her mother apprehended the accused, she was not accompanied by any neighbour and they were alone. However, she deposed that at that time one or two persons were also standing near accused but PW2 deposed that when she apprehended the accused, he was alone. PW3 further deposed that her mother had slapped him 3-4 times but denied that any other person had beaten the accused. But her testimony is contrary to the MLC of the accused which shows that accused was beaten and when he was examined by the doctor, bleeding was going on from his nose. In this regard, the testimony of PW7 is also relevant. He deposed that on 18.02.2013 when he was coming back after playing cricket, he saw that accused was in injured condition and he was surrounded by public persons in the colony near temple. Accordingly, he informed the police from his mobile phone at 100 number. Since, he was not supporting the prosecution version, he was got declared hostile and during his cross-examination conducted by the learned Additional Public Prosecutor he denied the suggestion that he had seen crowd near the gate of railway colony. Thus from the testimony of PW7, the alleged incident had not taken place near the gate of railway colony as alleged by prosecution; rather it had taken place somewhere near temple in the colony.
SC No. 79/13 Page 11 of 1521. From the above testimony of PW1, PW2 and PW3, it becomes clear that there is a material contradictions between their testimony and they all tried to set up a new case and they failed to furnish any reasonable explanation for the same.
22. Accused has taken the defence since beginning that a quarrel had taken place between him and PW1 as he was attending the call of nature in front of the thaiya of PW1 in open space in the park and when PW1 raised objection, a quarrel had taken place between him and PW1. Though the nearby shopkeepers separated both of them but PW1 with the aid of his daughter falsely implicated him in this case. To prove his version, he examined one Rohit as DW1. DW1 in his deposition deposed that he knew the accused as well PW1. He deposed that in the mid of February, 2013, he was taking ice-cream at about 5 P.M. to 5:30 P.M., he saw that accused was attending the call of nature near the gate in the corner thereafter a quarrel had taken place between accused and PW1 and he separated both of them and asked why they were quarrelling. Accused told him that he was attending the call of nature. Thereafter, DW1 went away. In his cross-examination, he admitted that he knew the accused since long as he used to visit him frequently. However, he denied the suggestion categorically that no such incident of quarrel had taken place or that he had concocted a false story to save the accused. He also admitted that he did not call the police. He further deposed that the shop of PW1 is located near the gate of railway colony at Subzi Mandi Railway Station and also stated that there is a park in the railway colony. He further deposed that he had no knowledge if any such incident had taken place in the park. Though DW1 expressed his ignorance about any incident which might have taken place with the victim but he categorically stated that a quarrel had taken place between accused and PW1. It is admitted case of prosecution that SC No. 79/13 Page 12 of 15 State Vs. Santosh accused was found sustaining fresh injury when he was medically examined and as per testimony of prosecution witnesses, none of them deposed that they had beaten the accused. PW2 deposed that she had only slapped the accused. PW3 categorically deposed that no other person had beaten the accused. In these circumstances, the testimony of DW1 to the extent that a quarrel had taken place between accused and PW1 appears to be trustworthy.
23. It is admitted case of prosecution that after the incident numerous persons gathered there. Despite that investigating officer failed to examine any one of them. It also becomes clear that PW1, PW2 and PW3 not only made substantial improvements in their deposition but there are contradictions between their deposition. It is admitted fact that PW3 was residing with her parents from the date of incident till she graced the witness box, thus her parents had sufficient time to tutor her. In these circumstances and in the light of law laid down in Virendra versus State of UP (Supra), I am of the considered opinion that it will not be safe to rely upon the uncorroborated testimony of PW3.
24. Once, it becomes clear that it will not be safe to rely upon the uncorroborated testimony of PW3, question arises as to whether there is any independent witness to corroborate her deposition. During trial, prosecution failed to produce any independent witness. Though, PW1 is the father of the victim, yet in his deposition he no where deposed that victim told him about the allegations levelled against the accused. Rather he deposed that victim told him that accused was misbehaving with her. He failed to disclose what does he mean by misbehaving. He also failed to clarify what threat was given to the victim. No doubt, PW2 in her deposition, corroborated the testimony of PW3 that victim told her that accused had SC No. 79/13 Page 13 of 15 State Vs. Santosh taken out his penis after opening the zip of his pant and asked the victim to hold the same and also threatened the victim that he would kill her if she disclosed the incident to anyone. But as already discussed that PW2 has set up a new case during her deposition as in her statement recorded under Section 161 Cr. P.C., she set up a contrary case that someone informed about the incident to her at her house and consequently she reached the spot where she found her daughter was weeping whereas in her deposition, she deposed that when her daughter came to the house, she was weeping and scared, consequently she took her outside the jhuggi and asked her repeatedly and after seeing the accused, she became scared and trying to ran away and thereafter she narrated the incident. In these circumstances, I am of the view that no reliance can be placed on her deposition.
25. PW3 in her cross-examination admitted that the distance between her house and the place of occurrence can be covered on foot within five minutes. Assuming for the sake of argument that the alleged incident had taken place and the victim rushed to her house and narrated the incident to her mother as deposed by PW2 and PW3 in the Court. If we assume that the victim had taken at least three minutes to reach her house and her mother had also taken 3 to 5 minutes to make inquiry from her. It means that accused had more than sufficient time to flee from the spot but it was not so. Had accused been any guilty intention, he would not have been remained there to wait for the mother of victim; rather he would have fled away from the spot but it was not so. This further shows that the incident had not taken pace in the manner in which the same has been projected by the prosecution.
26. At last but not least, prosecution has set up a case that the SC No. 79/13 Page 14 of 15 State Vs. Santosh statement of complainant, statement of PW2 and PW3 were also recorded at the spot but PW1 to PW3 deposed contrary to it. They categorically deposed that when police reached the spot, police took all of them i.e. PW1, PW2, PW3 and accused to the police station and their statements were recorded in the police station. This further shows that complainant has sufficient time to make a story as per his convenience.
27. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused beyond the shadow of all reasonable doubts, thus I hereby acquit the accused from all the charges.
28. File be consigned to record room.
Announced in the open Court on this 25th day of January, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 79/13 Page 15 of 15