Delhi District Court
State vs . Lalmani on 12 May, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 05/14)
Unique ID case No. 02404R0006312014
State Vs. Lalmani
FIR No. : 684/13
U/s : 354/354A/506 IPC
r/w u/s. 10(9n) / 12 of POCSO Act
P.S. : Mangolpuri
State Vs. Lalmani
S/o Sh. Lahri,
R/o N262, Mangolpuri,
Delhi.
And Permanent r/o :
Village Gajaipur,
P.O. Barsaia, District Aazamgarh,
P.S. Attarwalia, UP.
Date of institution of case - 04.01.2014
Date on which, judgment has been reserved 12.05.2014
Date of pronouncement of judgment - 12.05.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that victim P is the real daughter of accused Lalmani. The accused is alleged to have subjected SC No. 05/14 State Vs. Lalmani Page No. 1 of 18 2 victim P to repeated sexual assault which brought about noticeable change in the behaviour of victim P at home and in school. On one occasion PW5 Ms. Chanchal, Program Coordinator, Dr. A.V. Balda Memorial Trust visited the school of the prosecutrix to educate the children about various issues. She noticed the strange behaviour of victim P and when she spoke to victim P at length and gained her confidence, victim P told her about the acts of her father due to which she had been suffering. The PW5 is stated to have inquired about the matter from the friends and the teacher of victim P and having been satisfied with whatever was told to her by victim P, took her to PS Mangolpuri where victim P filed her complaint Ex. PW2/C. During the course of investigations victim P was got medically examined at SGM hospital. The accused was also arrested at the pointing out of victim P and was got medically examined at Bhagwan Mahaveer hospital. The statement of victim was got recorded under Section 164 Cr.P.C. After completing investigations, the charge sheet was prepared and filed in this court. 2 After hearing arguments, charge for the offence under Section 9
(n) punishable u/s.10 of POCSO Act was framed against the accused and an alternative charge u/s 354 IPC was also framed against the accused. Charge for the offence u/s. 11 (i) punishable u/s.12 of POCSO Act and an alternative charge u/s.354 A IPC and charge u/s.506 IPC was further framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 In order to prove its case, prosecution has examined 11 SC No. 05/14 State Vs. Lalmani Page No. 2 of 18 3 witnesses.
4 The PW1, Ms. Pratibha, produced record from Primary Vidyalaya, Kamhariya Ghat, Jahangir Ganj, Ambedkar Nagar, U.P. wherein victim P was admitted in first class and as per record produced by PW1, the date of birth of victim P, is 08.12.1999. The PW1 further deposed that they generally admitted children in their school by making direct entry in admission register without having any admission form, etc. filled in by the parents or the guardian of the child and that no documentary proof of date of birth of the child was taken at the time of its admission in the school. She produced the original admission register and proved the relevant entry pertaining to victim P as Ex. PW1/A. The photocopy of the SLC issued by the school of PW1, when victim P passed out after completing fifth class, was proved as Ex. PW1/B. 5 The PW2, HC Narender, was posted as Duty Officer at PS Mangolpuri at relevant time. He had recorded DD No. 32 A on arrival of NGO Chanchal along with victim P at PS when the victim P made complaint of wrong acts against her father. He proved the copy of DD No. 32 A as Ex. PW2/A by producing the original DD register. The PW2 had further recorded the case FIR in the present case. He proved the computerized copy of FIR as Ex. PW2/C, endorsement made by him on rukka as Ex. PW2/B and certificate under Section 65 B of Indian Evidence Act as Ex. PW2/D. 6 The PW9, Ct. Rajesh, was posted as CIPA operator at PS SC No. 05/14 State Vs. Lalmani Page No. 3 of 18 4 Mangolpuri on 06.11.2013 and had typed the FIR in the present case on computer. He deposed regarding the same and further stated that while typing the FIR he had committed a typographical error in the name of the victim P as stated in his statement.
7 The PW3, Smt. Sheetal, is the mother of victim P and wife of the accused. She merely stated that in the month of November, 2013 her husband i.e. the accused gave scolding to victim P as she used to come back late from the school and was in the habit of roaming around with her friends and that angered by this, victim P, falsely implicated the accused in the present case on advise of her friends. The PW3 further deposed that the victim P had given a correct version before the Ld. MM but false version before the police and that nothing had happened in the present case and that her husband had not done anything. She further deposed that accused had been arrested from his place of work and not from home. 8 Since PW3 failed to depose as per case put forth by the prosecution, she was crossexamined at length by Ld. Addl. PP during which her statement under Section 161 Cr.P.C, mark X, dated 06.11.2013 was put to her at length, however, the PW3 denied having been informed by the IO on 06.11.2013 that victim P had filed a complaint regarding wrong acts committed with her by the accused. She also denied that site plan had been prepared by the IO, in her presence, at pointing out of victim P. She further denied that accused had been arrested from the residence. She denied that she was deposing falsely to secure release of the accused. SC No. 05/14 State Vs. Lalmani Page No. 4 of 18 5 9 The PW4, is victim P. She too failed to support the prosecution case and stated that she had filed a false case against her father i.e. the accused under the influence of her friends. She denied having lodged any complaint before the police and stated that she had made only one statement before the Ld. Judge (the witness was referring to her statement under Section 164 Cr.P.C) wherein she had told the truth. 10 This witness was also crossexamined at length by Ld. Addl. PP. Her complaint Ex. PW4/A was shown to her. The witness identified her handwriting and signatures on the complaint but denied contents thereof. She further denied that she had stated in her complaint Ex. PW4/A that her father i.e. the accused used to misbehave with her or that he used to give her beatings or that he had threatened her not to disclose about his misbehaviour with anyone. She further denied that her father used to touch her in objectionable manner, as detailed in complaint Ex. PW4/A or that he used to talk to her indecently whenever he went to drop her to school. The witness admitted that she had been medically examined, however, she denied having given any alleged history to the concerned doctor. The witness could not tell name of the friend on whose advise she had falsely implicated her father. The PW4 denied that she was deposing in favour of accused under compelling circumstances as her whole family was disturbed after the arrest of the accused in the present case.
11 The PW5, Ms. Chanchal, is the Program Coordinator from Dr. SC No. 05/14 State Vs. Lalmani Page No. 5 of 18 6 A.V Balika Memorial trust. This NGO Member is stated to be instrumental in filing of the complaint Ex. PW4/A by the victim P wherein she had made specific allegations of sexual assault against her father. The PW5 stated that on 06.11.2013 she (PW5) had gone with her associate Kiran to the school of victim P in connection with Bal Suraksha Program and that during the course of interaction with the children in the school, they found behaviour of victim P little strange and that whey they probed, they found that father of victim P had been indulging in improper behaviour with her and had been abusing her. PW5 further deposed that victim P told them that whenever she went to toilet her father accompanied her and whenever she slept at night he fiddled with her clothes and touched her private parts and that he used to accompany her to school also and at that time he threatened her that if she told about this to anyone he would kill her. The PW5 stated that on hearing this they took victim P to PS where she filed her complaint. 12 A court question was put to the PW5 as to whether she had interviewed the child at length to ascertain whether she was telling truth or was making a story. In response to this question, the PW5 stated that they had taken sufficient time to talk to the child as well as her class teacher who also told them about complaint of misbehaviour by the child P against her father. Another question was asked from PW5 regarding the mother of victim P being informed and in response to the same the witness stated that they had spoken to the mother of victim P and she also told them that on one occasion she had also seen her husband misbehaving with victim P and had asked him not to do so but he did not pay any heed.
SC No. 05/14 State Vs. Lalmani Page No. 6 of 18 7 13 This witness was crossexamined at length by Ld. Defence Counsel and several improvements were brought out in the testimony given by PW5, before the court, over and above her statement under Section 161 Cr.P.C i.e. mark PW5/DA. It was brought out that nothing had been mentioned in mark PW5/DA about victim having told PW5 that whenever she went to toilet her father used to accompany her and that her father also accompanied her to school and threatened her. During her further cross examination PW5 stated that she had counseled victim P and ascertained from her whether she wanted to file complaint against her father or not before taking her to PS. The PW5 termed it correct that victim P had been taken directly to PS from school and that they had not gone to the house of the victim prior to that. The PW5 volunteered to state that the mother of the victim was called on the way to PS, telephonically, and that they had gone to PS with the victim and her mother. She termed in correct that they had not spoken to the mother of victim P before going to PS. The PW5 further stated that police did not make any inquiry from the teacher of victim P in her presence. She also stated about having talking to one child J, friend of victim P, who confirmed whatever was told to PW5 by victim P. 14 The PW6, child J, is a friend and a classmate of victim P. She deposed that victim P was her good friend and that she used to cry daily when she came to class and that when she asked victim P about it victim P told her that her father used to do wrong acts with her "uske papa uske saath galat galat harkat karte the aur maarte peette the" and that on advise of SC No. 05/14 State Vs. Lalmani Page No. 7 of 18 8 PW6, victim P told about these facts to their teacher. A court question was asked from the witness to elaborate if victim P had told her what "galat harkat" her father used to do with her by explaining to the witness whether he used to scold her or did not permit her to do what she liked, etc. The witness stated that she had not asked victim P as to what she meant by "galat harkat".
15 The PW8, Dr. Beena, had conducted the general medical examination of victim P and referred her to gyne department for further examination and management and proved her MLC as Ex. PW7/A. The victim P was examined by Dr. Monica Behl at Gynecology department and the observations made by her after examination of victim P were proved on the MLC Ex. PW7/A by PW7 Dr. Monica Chopra who identified handwriting and signature of Dr. Monica Behl thereupon.
16 The PW11, W/SI Khushboo, is the investigating officer in the present case and she deposed regarding the investigations carried out by her and the documents prepared by her during the course of investigations. She deposed that on 06.11.2013, Ms. Chanchal, Project Coordinator from Dr. AV Ballika Trust, had come to PS along with victim P and that PW11 made inquiries from victim and she (victim) gave her complaint Ex.PW4/A wherein she made allegations of sexual assault against her father. The PW11 then deposed that thereafter the victim was taken for medical examination to SGM Hospital where she was examined vide MLC Ex.PW7/A and that no exhibits were taken by the concerned doctor at the SC No. 05/14 State Vs. Lalmani Page No. 8 of 18 9 time of examination of the victim and that the victim was got counseled through NGO Nazma Khan from Navshristi at PS. She further deposed that she had made endorsement Ex.PW11/A, on the complaint made by the victim, in the hospital, and sent the rukka through Ct. Nagesh to PS Mangolpuri for registration of the FIR and that she (PW11) proceeded to the house of the victim along with the victim and that the mother of victim was not with them when complaint Ex.PW4/A was recorded and that she was also not present at the time of medical examination of the victim and that she (mother of victim) met them when they went to the house of the victim. 17 The PW11 further deposed that at the house of the victim, she had prepared site plan Ex.PW4/B at the pointing out of the victim and in the meantime, HC Chaman Lal also reached there with the copy of FIR and original rukka and that in the meantime, father of the victim also came there and that he was apprehended and interrogated and thereafter he was arrested vide his arrest memo already Ex.PW3/A and was personally searched vide memo Ex.PW11/B and that PW11 also recorded the disclosure statement of accused vide Ex.PW11/C. The PW11 then deposed that thereafter the accused was brought to PS and from there he was sent for medical examination in custody of HC Chaman Lal and was examined vide MLC Ex.PX and that after medical examination the accused was brought back to PS and was put in the lockup.
18 The PW11 further deposed that on the next day, accused was produced before the learned MM from where he was sent to JC. She further SC No. 05/14 State Vs. Lalmani Page No. 9 of 18 10 deposed that on 07.11.2013, the victim was produced before learned MM for her statement u/s.164 CrPC, pursuant to which her statement Ex.PW4/C was recorded vide Ex.PY and that on the same day, the victim was produced before the CWC where, after counseling, the victim was handed over in custody of her mother.
19 The PW11 further deposed that on 11.11.2013 at the time of hearing bail matter of accused, the victim again told PW11 that accused had committed sexual assault upon her but she also stated that she did not want her father to be confined in jail and that she had again taken the victim to CWC where the victim was again handed over to her mother by the CWC. 20 The PW11 then deposed that during the course of investigations, she also collected the age proof of the victim from her mother. She further deposed that after completing the investigations, she had prepared the charge sheet and filed the same in the Court through SHO concerned.
21 During the crossexamination by learned defence counsel, the PW11 deposed that the victim was produced before her on 06.11.2013 at about 5:30 PM and that at that time only Ms. Chanchal was accompanying the victim and that when she had taken the victim to SGM Hospital for her medical examination, Ms. Chanchal left the PS and that on that day she did not record the statement of Ms. Chanchal. She denied the suggestion that the victim child P had not stated to the concerned doctor, in her presence, SC No. 05/14 State Vs. Lalmani Page No. 10 of 18 11 about sexual assault upon her and that the victim child P had not stated to her (PW11) about any sexual assault upon her, as alleged and that no rukka was sent through Ct. Nagesh for getting the case FIR registered or that all the writing work was done while sitting at PS. The PW11 then deposed that she did not call the mother of the victim as the victim told PW11 not to call her.
22 Some Court questions were put to the witness regarding non calling the mother of the victim child and in response to the same witness deposed as under : "Court Ques. Was there any particular reason that the victim told you not to call her mother ?
Ans. Victim had told me that the acts of her father were already in knowledge of her mother but she had not done anything about it. Court Ques. : Have you recorded this fact in the statement of the victim ?
Ans. No." 23 During further crossexamination, the PW11 deposed that she
did not record statement of the teacher and / or Principal of the school where the victim was studying. She denied the suggestion that the site plan Ex.PW4/B was prepared while sitting at PS or that the place Mark "A" in the site plan was not stated to her by the victim P or that the accused Lal Mani was not arrested from the house or that he was arrested from his work place and that on 11.11.2013 victim P had not stated to her about sexual assault SC No. 05/14 State Vs. Lalmani Page No. 11 of 18 12 upon her.
24 The PW10, Ct. Nagesh deposed that on 06.11.2013 he had gone to SGM Hospital where IO W/SI Khushboo handed over a tehrir written in Hindi to him which he brought to PS and handed over the same to duty officer.
25 As far as the statement of victim u/s.164 CrPC and MLC of accused are concerned, no witness were summoned qua the same as accused admitted the proceeding u/s.164 CrPC (statement of victim u/s.164 CrPC was already exhibited as Ex.PW4/C during testimony of PW4, victim child) and his own MLC bearing No.5013 vide his statement dated 06.05.2014 after which the same were exhibited as Ex.PY and Ex.PX respectively.
26 After closing of prosecution evidence, statement of accused Lalmani was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the police and that no such alleged incident had ever taken place. The accused declined to lead any evidence in his defence.
27 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 28 Learned Additional PP has contended that even though SC No. 05/14 State Vs. Lalmani Page No. 12 of 18 13 prosecutrix has failed to support the prosecution case, no adverse inference can be drawn as she was under the influence of her family and hence, she changed her version in deposition before the Court. It is thus prayed that the statement of prosecutrix u/s.161 CrPC be relied upon and and accused be convicted for the charged offences.
29 On the other hand, learned counsel for accused has contended that accused is innocent and has been falsely implicated in the present case. It is further submitted that prosecution has miserably failed to prove its case against accused beyond reasonable doubt as all the material prosecution witnesses have failed to support the prosecution case. It is accordingly prayed that the accused be acquitted of the charged offence. 30 I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
31 In the present case, accused Lalmani, who is father of victim child P, aged about 15 years, is alleged to have committed sexual assault upon the victim child P, by kissing her, touching her cheeks and by opening string of her salwar and by touching private parts with sexual intent, since one year prior to 06.11.2013 and is further alleged to have sexually harassed the victim child P by uttering indecent words, with the intention that such words shall be heard by her and indulged in physical contact and advances SC No. 05/14 State Vs. Lalmani Page No. 13 of 18 14 involving unwelcome and explicit sexual overtures towards the victim child. He is also alleged to have criminally intimidated victim P not to disclose about the incident to anyone by threatening to kill her. 32 As far as the age of the victim child P is concerned, it is not disputed that the victim child is a minor aged about 15 years. Even otherwise prosecution has examined PW1 Ms. Pratibha, who produced record of the school wherein the victim child P was admitted in first class and the photocopy of the relevant entry in admission register was placed on record and proved as Ex.PW1/A and school leaving certificate, issued by the said school after the child had passed out 5 th class from their school, as proved as Ex.PW1/B. As per record produced by PW1, the date of birth of victim child P is 08.12.1999. The first date of commission of offence (s) in the present case was one year prior to 06.11.2013. Thus the prosecution has succeeded in proving that the victim was just about 15 years old at the time of incident.
33 The next question which arises for consideration is whether accused had committed sexual assault upon the victim child P, his own daughter, and further sexually harassed her and threatened her since one year prior to 06.11.2013 when the matter was reported to the police. 34 Admittedly victim P is the only witness who could have deposed about the alleged acts of sexual assault, sexual harassment and criminal intimidation to which she is alleged to have been subjected by her father SC No. 05/14 State Vs. Lalmani Page No. 14 of 18 15 Lalmani, however, she completely failed to support the prosecution case when examined as PW4 and stated that her father was innocent and did nothing with her and that she had filed a false complaint against her father under influence of her friends. She further stated that she had appeared before the learned MM earlier she had given correct statement. When the statement of victim P u/s.164 CrPC i.e. Ex.PY is perused, it is seen that in her said statement recorded on 07.11.2013 also victim P stated that she had made a complaint with the police as her father used to beat her and that he had not done anything wrong with her and that she had made complaint against him out of anger.
35 Learned Additional PP has submitted that the complaint Ex.PW4/A is in the handwriting of victim P herself and that it is natural that she being the daughter of the accused has deposed in his favour in her statement u/s.164 CrPC and in her deposition before the Court and that the complaint Ex.PW4/A dated 06.11.2013 made by the victim P be relied upon. The contention raised by learned Additional PP cannot be sustained for several reasons. Firstly as per the prosecution case the victim P had confided about the alleged acts of accused to her friend J, who was examined as PW6. This witness stated that the victim P had told her that her father used to do wrong acts with her and gave her beatings (uske sath galat galat harkat karte the aur marte peetate the). When PW6 was asked, through a Court Question, as to whether she had inquired from victim P as to what "galat harkat" her father used to do, the child J stated that she had not asked victim P what she meant by "galat harkat". Thus from the testimony of SC No. 05/14 State Vs. Lalmani Page No. 15 of 18 16 child J it cannot be concluded that the acts of beatings given by the accused to victim P were with sexual intent. Secondly, the prosecution has failed to examine the class teacher of victim P and child J. As per the prosecution case when victim P narrated about her sufferings to child J, child J advised her to speak to their class teacher and took her (victim P) to her. The PW5 Ms. Chanchal, a NGO member, who had taken the victim P for filing of her complaint also stated that when they came to know about sexual abuse of victim P by her father, they confirmed about it from the class teacher of victim P and child J, who was in fact already aware of these facts. In these circumstances the fact that the class teacher of victim P and child J as well as the Principal of the school where these two children were studying have not been joined as witness is fatal to the prosecution case. 36 Further as per PW5 Ms. Chanchal, before taking PW4 to police station, they had called to the mother of victim P, and talked to her and that she told them that on one occasion she too had seen her husband misbehaving with victim P and had told him to refrain from doing so. The PW5, however, contracted herself in her crossexamination by learned defence counsel and stated that they had only called the mother of victim, on way to PS, and did not speak to her before going to PS. In contradiction, PW11 W/SI Khushboo has stated that the mother of the victim P was neither present with the victim, when she came to PS, nor was she called to the PS as victim had told her not to do so. When a Court question was asked from PW11 as to the reason for not calling mother of victim to PS, she stated that victim P had told her that she has already brought the acts of her father to SC No. 05/14 State Vs. Lalmani Page No. 16 of 18 17 the knowledge of her mother but she did not do anything and so she did not want her mother to be called. This fact is, however, not reflected from any material placed on record by the IO nor has the IO recorded statement of victim P in this regard. The victim was even taken for her medical examination by the IO herself and the concerned doctor, who examined victim P in the absence of her mother, took consent from another NGO member. Since the victim herself has not alleged in her complaint Ex.PW4/A that she had confided in her mother about the alleged misdeeds of her father or that her mother failed to standby her or that she was otherwise aware of the acts of abuse of victim P by her husband / father of victim P, the failure on the part of the IO to have the mother of victim P present at the time of recording of her complaint and medical examination does not stand explained at all. Moreover, even PW5 Ms. Chanchal had made several improvements in the testimony before the Court, over and above her statement Ex.PW5/DA recorded by the police, as is brought out from her crossexamination by learned defence counsel, and thus her statement also cannot be relied upon to draw a conclusion of guilt of the accused specially when the victim P and her mother Smt. Sheetal, who was examined as PW3, failed to support the prosecution case and denied that accused had ever misbehaved with the victim child P or had crossed over the Lakshman Rekha of their relationship to sexually abuse, sexually harass her and to criminally intimidated her.
37 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove the guilt of the SC No. 05/14 State Vs. Lalmani Page No. 17 of 18 18 accused Lalmani on record, beyond the reasonable doubt. Accordingly, I acquit accused Lalmani for the charged offences.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 12.05.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 05/14 State Vs. Lalmani Page No. 18 of 18
19
FIR No. 684/13
P.S. Mangolpuri
12.05.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Deepak Arora, Statement of accused u/s.313 CrPC recorded. Accused does not want to lead evidence in his defence.
Arguments heard.
Judgment shall be passed during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi At 4:15 PM Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Deepak Arora. Vide separate judgment, announced today in the open Court, accused Lalmani has acquitted of the charged offence. He is in J.C. He be released forthwith, if not required to be detained in any case or proceedings.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 12.05.2014 SC No. 05/14 State Vs. Lalmani Page No. 19 of 18