Delhi District Court
State vs . Sonu Kumar Yadav on 26 October, 2013
State Vs. Sonu Kumar Yadav
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 151 of 2013
ID No. 02401R0373842013
FIR No. : 243/13
Police Station : Sarai Rohilla
Under Section : 354A/363 IPC &
8 of POCSO Act
State
Versus
SONU KUMAR YADAV
S/o Sh. Nanhe Ram Yadav,
R/o Gulabi Bagh Patri,
Delhi
.............Accused
Date of Institution : 29.07.2013
Date of Judgment reserved on : 21.10.2013
Date of judgment : 26.10.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Rajesh Kumar, Advocate, Amicus Curiae for the
accused
SC No. 151/13 Page 1 of 7
State Vs. Sonu Kumar Yadav
J U D G M E N T:-
1. Briefly stated facts of prosecution case are that on June 14, 2013 at about 8.43 PM, an intimation was received at police station Sarai Rohilla that one boy was attempted to take a minor girl forcibly and he had been apprehended by public. Said information was recorded vide DD No. 36A (Ex.PW2/A). On receipt of this information, SI Gopeshwar Nath Tiwari along with constable Shambhu Kumar reached the place of occurrence i.e. shop of Gupta Masala, Sarai Basti, Sarai Rohilla, Delhi where complainant (since she is the mother of victim, in order to conceal the identity of victim, her identity is also withheld and hereinafter she is referred to as complainant or mother of victim) Yashoda met them and got recorded her statement Ex. PW1/A.
(i) In her statement, complainant alleged that on June 14, 2013 she along with her daughter aged about 6 years went to the shop of Gupta Masala for shopping. At about 8.30 PM when she was busy in shopping, one boy came there and he gagged the mouth of her daughter (victim) and tried to take her away. But she had seen him, consequently, she raised alarm. Accordingly, public persons present there apprehended that boy. It was alleged that the said boy had taken the victim 12 metres away when he was apprehended by public persons. On enquiry that boy disclosed his name as Sonu Kumar Yadav. Public persons had given beating to him. In the mean time, someone informed the police at 100 number, consequently, police also reached there. Police apprehended the accused. During investigation, statement of victim was got recorded under Section 164 Cr.P.C.
SC No. 151/13 Page 2 of 72. After completing investigation, challan was filed against the accused for the offence punishable under Section 354A/363 IPC read with Section 8 of Protection of Children from Sexual Offences, Act.
3. Vide order dated August 17, 2013, a charge for the offence punishable under Section 354A/363 IPC read with Section 8 of POCSO Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution has examined as many as following 6 witnesses:-
PW1 Complainant (mother of victim)
PW2 HC Naresh Pal, duty officer, proved the FIR
PW3 Cheten, owner of Ganesh Bhandar but turned hostile
PW4 victim
PW5 Const. Shambu Kumar, formal witness
PW6 SI Gopeshwar Nath Tiwari, investigating officer
5. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all incriminating evidence led by the prosecution and took the plea that he is a kabari by profession and on that day, he was picking up waste material from the road. All of sudden, public persons apprehended him stating that the kidnapper was like him. Thereafter, he was beaten by public at the instance of complainant. It was submitted that he was not involved in the incident in any manner and he has been falsely implicated in this case. However, he refused to lead evidence in his defence.
SC No. 151/13 Page 3 of 76. Learned counsel appearing for accused vehemently contended that PW3 Chetan was the sole independent witness but he did not support the prosecution case in any manner by deposing that he did not know any thing about the incident. It was submitted that PW4 also did not support the prosecution case as she failed to identify the accused. It was submitted that only remaining material witness is PW1 i.e. complainant who supported the prosecution case. However, it was submitted that no reliance can be placed on her testimony because there are material contradictions between her testimony and the testimony of victim. It was submitted that accused has been apprehended by public persons under confusion and thereafter, he has been falsely implicated in this case.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no inconsistency between the testimony of PW1 & PW4. It was submitted that mere fact that PW4 failed to identify the accused is not fatal to the prosecution case in any manner as PW1 identified the accused correctly and PW4 in her deposition testified that kidnapper was apprehended at the spot. It was argued that from the testimony of PW1 and PW4, it is proved beyond doubt that accused is the person who had kidnapped the victim and he was apprehended by public persons.
8. 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. In order to prove the guilt of accused, prosecution has relied upon the testimony of three witnesses namely PW1, PW3 and PW4. PW3 is the shopkeeper of Ganesh Bhander where PW1 along with her daughter SC No. 151/13 Page 4 of 7 State Vs. Sonu Kumar Yadav (PW4) went for shopping. But PW3 did not support the prosecution case in any manner by deposing that he did not know anything about the incident nor he heard any hue and cry on June 14, 2013. Though PW3 was cross- examined in depth by learned Additional Public Prosecutor but nothing could be extracted during his cross-examination which may help the prosecution in any manner to prove the culpability of accused, thus, his testimony is not helpful to the prosecution case in any manner.
10. PW4 is victim and she was about 6 years old at the time of incident. In her examination-in-chief she has supported the prosecution case by deposing that while she was eating ice-cream behind her mother, one boy came there and he had closed her mouth and eyes and took her. But she failed to identify that boy. Thus, the testimony of PW3 is not sufficient to prove the culpability of the offender. PW4 deposed that the said boy was apprehended at the spot. But this does not prove that the apprehended boy was accused.
11. The next material witness is PW1 who is the mother of victim and complainant in this case. She had supported the prosecution case in her examination-in-chief. However, perusal of testimony of PW1 and PW4 reveals that there are contradictions between their testimony. PW1 attempted to set up a case that she had seen the accused when he was dragging her daughter after gagging her mouth with his hand and after seeing the same she had raised alarm. Consequently, accused was apprehended with the help of public persons. She further deposed that accused had already taken her daughter up to 20-25 paces when he was apprehended. On the contrary, PW4 deposed that when the offender had closed her eyes and gagged her mouth, she had given tooth bite on his hand and she called her mother. Thereafter, she raised alarm and public SC No. 151/13 Page 5 of 7 State Vs. Sonu Kumar Yadav persons gathered there. In her cross-examination, she deposed that her mother was at the distance of about 5-6 ft. and after getting rid of herself she rushed towards her mother and told the incident to her mother., thereafter, her mother apprehended the offender. Thus, from the testimony of PW4, it appears that after giving tooth bite on the palm of offender, victim came to her mother and informed her mother about the incident, thereafter, she raised alarm, consequently, public persons apprehended that boy. Whereas PW1 deposed that she had herself seen the accused while he was taking away her daughter by gagging her mouth. PW4 admitted in her cross-examination that accused was having katta/bori in his one hand but he had kept the same on the road. Admittedly, no such bori/katta was recovered by the police. There is nothing on record which may suggest that when accused was apprehended, he had any sign of tooth biting. Thus, prosecution failed to establish that there was any sign of tooth biting.
12. From the testimony of PW1 & PW4, it becomes clear that there is contradiction between their testimony on material point as PW1 deposed that she had herself seen the accused while he was taking away her daughter after gagging her mouth whereas PW4 deposed that she informed her mother about the incident, thereafter her mother raised alarm and apprehended the offender with the help of public persons.
13. Admittedly, PW4 failed to identify the accused. Since, PW1 was busy in shopping, thus probably due to that reason she had not seen the offender while taking away the victim and the possibility that her attention was attracted when PW4 rushed to her cannot be ruled out.Thereafter, PW1 made hue and cry, consequently, accused was apprehended by public persons. In these circumstances, the possibility that accused had been apprehended by crowd under confusion can not be ruled SC No. 151/13 Page 6 of 7 State Vs. Sonu Kumar Yadav out.
14. Though, in order to show that accused is the culprit, prosecution has also examined Chetan (PW3), owner of the shop but unfortunately, he did not support the prosecution case by deposing that he did not know anything about the incident and he did not hear any hue and cry. Thus, the testimony of PW1 is not corroborated from any corner to establish the identity of accused.
15. In these circumstances, I am of the opinion that the testimony of PW1 is not sufficient to prove the identity of the accused.
16. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of the accused Sonu Kumar Yadav for the offence punishable under Section 354A/363 IPC read with Section 8 of POCSO Act beyond the shadow of all reasonable doubts, thus, I hereby acquit him thereunder.
Announced in the open Court on this 26th day of October, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI SC No. 151/13 Page 7 of 7