Delhi District Court
State vs . Anil on 15 September, 2014
State Vs. Anil
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No : 91/13
ID No. : 02401R0214322013
FIR No. : 113/13
Police Station : Sarai Rohilla
Under Section : 509/506 IPC &
: 11/12 POCSO Act.
State
Versus
ANIL
S/o Sh. Ramesh Kumar
R/o H. No. L-238,
Shastri Nagar,
Delhi.
.........Accused
Date of Institution : 01.05.2013
Date of judgment reserved : 01.09.2014
Date of judgment : 15.09.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Narender Kalra, Advocate, counsel for the accused.
SC No. 91/13 Page 1 of 13
State Vs. Anil
JUDGMENT:-
1. Briefly stated facts of prosecution case are that on March 4, 2013 at about 9.57 PM an intimation was received through wireless operator that a call had been received at police control room from mobile phone number 9250884677 that one boy had been apprehended, who was harassing a girl at A Block, Monday Market near Dharamshala, Shastri Nagar, Delhi. The said information was recorded vide DD No. 87B (Ex.PW2/C) and same was assigned to HC Devi Ram. Accordingly, HC Devi Ram along Const. Narender reached the place of occurrence where victim met. In the meantime, SI Indu Rani also reached there and she recorded the statement Ex.PW3/A of victim (the identity of victim is withheld and hereinafter she is referred to as victim or complainant).
2. It was alleged that victim in her statement Ex.PW3/A alleged that she studied in 11th standard and at about at 7.45 PM when she went to Monday Market near her house, she saw that one boy i.e. accused was chasing her and was passing indecent gestures from distance. Consequently, she rushed back to her house. But that boy also followed her upto her house. It was alleged that she narrated the incident to her father, consequently, her father came out along with victim and after seeing her father accused tried to run away and also gave threat. It was alleged that father of complainant with the help of other boys of the gali apprehended the accused whose name was revealed as Anil S/o Ramesh Kumar. It was alleged that accused was following the victim for the last two months and he was also passing indecent gestures and threatened her. On her statement, an FIR for the offence punishable under Section 509/506 of Indian Penal Code (in short IPC) read with Section 11/12 of Protection of SC No. 91/13 Page 2 of 13 State Vs. Anil Children from Sexual Offence Act (in short POCSO Act) was got registered.
3. During investigation, statement of victim under Section 164 of Code of Criminal Procedure (in short Cr. P.C.) was got recorded. Documents relating to the age of victim were collected. After completing investigation, challan was filed against the accused for the offence punishable under Section 509/506 IPC read with Section 11/12 of POCSO Act.
4. After complying with the provisions of Section 207 Cr. P.C., a charge for the offence punishable under Section 509/506 IPC read with Section 12 of POCSO Act was framed against the accused on May 21, 2013 to which accused pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused, prosecution has examined as many as following 6 witnesses:-
PW1 Father of victim (in order to conceal the identity of victim, his identity is also withheld and hereinafter he is referred to as father of the complainant or victim).
PW2 HC Hariom, duty officer
PW3 Victim
PW4 Const. Narender, joined investigation with HC
Devi Ram.
PW5 HC Devi Ram
PW6 SI Indu Rani, investigating officer
SC No. 91/13 Page 3 of 13
State Vs. Anil
6. On culmination of prosecution evidence, accused was examined under Section 313 Cr. P.C. wherein he denied all incriminating evidence led by prosecution and submitted that he had been falsely implicated in this case. It was submitted that when he was returning from his office and reached Som Bazar at about 9 PM, one person came from behind and caught hold him by collar and took him at the end of corner of Som Bazar and told that he had misbehaved with his daughter but he denied the same. It was further stated that at that time, the said person was under the influence of liquor and he had given beating to him and detained him for about 45 minutes thereafter he called the police and handed over him to the police. It was stated that he had been falsely implicated in this case. However, he refused to lead any evidence in his defence.
7. Learned counsel appearing for the accused sagaciously contended that though prosecution has examined six witnesses, yet prosecution case is based on the testimony of PW1 and PW3. It was submitted that no reliance can be placed on their deposition as there are material contradictions between their statements. It was further argued that even if we admit the testimony of PW3 as a gospel truth, even then no case is made out under Section 12 of POCSO Act because PW3 admitted in her cross-examination that accused had not uttered any bad word or filthy language or indecent remarks to her. It was contended that as per the testimony of PW3, accused had only shown his mobile phone, pen and slip and the said act cannot fall in the definition of sexual harassment as defined under Section 11 of POCSO Act. It was further contended that in fact accused was returning from his office and while going to home via Monday Market, at that time at about 9 PM, father of victim had caught hold him from behind alleging that he had misbehaved with his daughter and SC No. 91/13 Page 4 of 13 State Vs. Anil had given beating to him. At that time, PW1 was under the influence of liquor and thereafter he handed over him to the police.
8. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there is no inconsistency between the testimony of PW1 and PW3, thus, there is no reason to believe their testimony. It was further contended that since accused used to follow and pass indecent gestures to the victim, accused is liable for under Section 509 IPC and Section 12 of POCSO Act
9. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
10. Prosecution has set up a case that the alleged incident had taken place at 7.45 PM when PW3 had gone to Monday Market at Shastri Nagar. In her examination-in-chief, PW3 deposed that accused met her in Som Bazar between 7.35 PM to 7.40 PM and further deposed that when she took turn from her gali to go to Som Bazar, accused started following her. She further deposed that she returned to her home at 8 PM. Thus, as per the testimony of PW3, the entire incident had taken place between 7.35 PM to 8 PM.
11. In her statement Ex.PW3/A, complainant alleged that after returning home, she narrated the incident to her father, consequently, her father came out and apprehended the accused with the help of some boys of the gali. Thus, prosecution has set up a case that the accused was apprehended immediately when victim made a complaint to her father on SC No. 91/13 Page 5 of 13 State Vs. Anil returning. However, there is a contradiction on this point. PW3 in her examination-in-chief deposed that when she narrated the incident to her family members i.e. father and brother, they went to Som Bazar to search the accused but at that time they could not find him. However, she further deposed that they succeeded to find him at 10/11 PM and consequently, her father apprehended him. Thus, as per the testimony of PW3, accused could not be found immediately whereas in the complaint Ex.PW3/A it is specifically alleged that accused was apprehended. As per her deposition, accused was apprehended between 10.30 PM to 11 PM. But is it not the prosecution case. PW1 in his examination-in-chief deposed that he returned to home from his duty at 9 PM and at that time her daughter made a complaint and asked him to accompany her to Som Bazar, accordingly, he accompanied her and at pointing out of his daughter, he apprehended the accused. Thus, there is inconsistency between the testimony of PW1 and PW3 because as per the testimony of PW3, her father was at home when she returned to home at 8 PM whereas PW1 deposed that he returned at 9.15 PM. Further, as per the testimony of PW3, accused could not be found and accused was apprehended when they again went to Som Bazar to search him and he was apprehended between 10.30 PM to 11 PM whereas PW1 did not depose so. According to his testimony, accused was apprehended immediately when he went to Som Bazar at 9.15 PM along with daughter.
12. Further, there is also discrepancy in the testimony of PW1. In his examination-in-chief, he deposed that he overpowered the accused in Som Bazar with the help of boys of the gali. This shows that PW1 was accompanied with some other boys when he apprehended the accused.
But in his cross-examination, he deposed that none accompanied him SC No. 91/13 Page 6 of 13 State Vs. Anil except his daughter when he apprehended the accused.
13. Assuming for the sake of arguments that the alleged incident had taken place. But it is quite improbable that accused would wait for the father of the victim for such a long period.
14. Now coming to the contention as to whether the testimony of PW3 is insufficient to attract the provisions of Section 11 of POCSO Act .
15. PW3 in her examination-in-chief deposed that on March 04, 2013 at about 7.30 PM when she went to Som Bazar, accused Anil was passing indecent gestures/remarks to her. She further deposed that when she came to her house, accused also followed her. She clarified in her examination-in-chief that indecent gestures/remarks means that accused was showing her phone, pen and chit to her and he was also trying to convey her that she should give her number to the accused. In her cross- examination, she admitted that accused had not uttered any bad word or filthy language or indecent remarks to her. She further deposed that when she stopped to buy potato, accused went ahead to her and stopped at the corner and started showing his mobile phone, pen and slip to the victim. Thus, according to PW3 the indecent gesture was that accused had shown his mobile phone, pen and chit to the victim and according to the victim, accused was trying to convey that victim should give her number to him. Except that no other word or gesture was passed by the accused. Now question arises as to whether this act amounts sexual harassment as defined under Section 11 of POCSO Act or not? Section 11 of POCSO Act reads as under:
SC No. 91/13 Page 7 of 13State Vs. Anil
11. Sexual Harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent -
(i). utters any word or make any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii). make a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii). shows any object to a child in any form or media for pornographic purposes; or
(iv). repeatedly or constantly follows or watches or contact a child either directly or through electronic, digital or any other means; or
(v). threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, or any part of the body of the child or the involvement of the child in a sexual act; or
(vi). entices a child for pornographic SC No. 91/13 Page 8 of 13 State Vs. Anil purposes or gives gratification therefor.
16. To bring an act of a person under the definition of Section 11 of POCSO Act, prosecution has to establish that the wrongdoer has committed any one of the acts as mentioned in clause (i) to (vi) with sexual intent.
17. At the most the alleged act of the accused may attract clause
(i), which reads as under:
(i). utters any word or make any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
18. To my mind mere showing mobile phone, pen and slip to a girl is ipso-facto not sufficient to cover the said act within the clause (i) of Section 11 of POCSO Act. One person may show these objects for numerous reasons. In the absence of any other cogent evidence, it cannot be said that by mere showing these objects, accused had any sexual intent towards the victim. Assuming for the sake arguments that accused had shown these objects with an intention to have a friendship with the victim or that he intended to have the phone of victim. Even then the same does not fall within the purview of Section 11 of POCSO Act. It is pertinent to state that PW3 nowhere alleged that she had shown her disinterest in the accused at any point of time or asked the accused not to show these objects as the same offend her in any manner. Similarly, PW3 did not SC No. 91/13 Page 9 of 13 State Vs. Anil depose that accused had any sexual intent. It is pertinent to state that as per explanation to Section 11, 'sexual intent' shall be question of fact, thus, it shall be proved by the prosecution in accordance with law.
19. PW3 in her testimony also deposed that when she returned to home, accused followed her and also deposed that earlier also accused used to follow her but he did not pass any indecent remarks. In her cross- examination, she deposed that accused started following her on March 04, 2013 when she took left turn from her gali to go to Som Bazar. Now question arises as to whether the above evidence is sufficient to attract clause (iv) of Section 11 of POCSO Act or not.
20. To attract the clause (iv) of Section 11 of POCSO Act, prosecution has to prove that the wrongdoer was either repeatedly or constantly followed a child either directly or through electronic or digital or any other means. The dictionary meaning of 'repeatedly' is "over and over, after often, frequently, many times, again and again, time and time again". Similarly, dictionary meaning of 'constantly' is "continually, occurring, persistently, regularly, reoccurring". Thus, occasional following a child does not attract clause (iv) of Section 11 of POCSO Act. In the instant case, PW3 only deposed that accused had followed her on March 04, 2013 when she went to Som Bazar to buy vegetables and he followed her upto her house. Assuming for the sake arguments that accused had followed the victim on the said day but the said single act is not sufficient to attract clause (iv) of Section 11 of POCSO Act. No doubt, PW3 in her examination-in-chief chief also deposed that earlier also accused used to follow her but she failed to cite any instance. She did not disclose the approximate date and time of any such instance. Thus, the testimony of PW3 to the extent that earlier SC No. 91/13 Page 10 of 13 State Vs. Anil also accused used to follow her does not inspire any confidence in the absence of any cogent evidence.
21. Further, there is inconsistency in the case set up by prosecution and the testimony of PW3. In her complaint Ex.PW3/A, victim alleged that accused was following her for the last two months but in her deposition she did not depose so. Even PW1 i.e. father of victim did not support the allegations levelled in the complaint Ex.PW3/A. On the contrary, he deposed that his daughter told him that accused was harassing her only for the last two days as accused was passing indecent remarks. But during trial, PW3 clarified that accused did not utter any indecent word/remarks etc. except showing his mobile phone, pen and chit. Thus, during trial, prosecution failed to establish the allegations that accused was following the victim repeatedly or constantly. Thus, the testimony of PW3 is otherwise not sufficient to prove the guilt of accused for the offence punishable under Section 12 of POCSO Act.
22. Prosecution has set up a case that when PW1 along with his daughter (PW3) went to apprehend the accused, accused started giving threat by saying that he would see him and thereafter PW1 with the help of other boys of the gali apprehended the accused. But PW3 in her testimony deposed that accused had never threatened either her or to her father.
23. As per sub-section 1 to Section 24 of POCSO Act, statement of child shall be recorded either at the residence of the child or at the place where she/he resides or at a place of her/his choice. The same shall be recorded by woman police officer as far as possible. Sub-section 4 to Section 24 of POCSO Act says that no child shall be detained in the police SC No. 91/13 Page 11 of 13 State Vs. Anil station in the night for any reason. Combined reading of sub-section 1 and 4 makes clear the intent of legislature that the statement of child shall not be recorded in the police station and shall be recorded either at her house or at a place where she/he resides or at any place of her/his choice.
24. Though prosecution has set up a case that the statement of victim was recorded at the spot by SI Indu Rani but the claim of prosecution is not supported by PW1 and PW3. PW3 in her cross-examination categorically deposed that police had recorded her statement as well as statement of her father in the police station and not at her house. Similarly, PW1 in his examination-in-chief deposed that police took both the parties to the police station and his daughter made a statement to the police and further clarified that he was present in the police station when statement of his daughter was being recorded but he was not allowed to enter the room where her statement was being recorded. Though PW1 was declared hostile by learned Additional Public Prosecutor and he was cross-examined on several points including that the statement of victim as well as his statement was recorded at their house but he categorically denied the same and reiterated that police had recorded their statement in the police station. This proves that the PW6 SI Indu Rani had not followed the mandate of law and it further proves that things had not happened in the manner in which the same have been projected before the Court.
25. As per the testimony of PW3, accused had shown his mobile phone, pen and chit to the victim when she was buying a potato from vegetable vendor but no effort was made to examine the said vegetable vendor.
SC No. 91/13 Page 12 of 1326. In view of the aforesaid discussion, I am of the considered opinion that the above acts are also not sufficient to attract the provisions of Section 509 IPC because there is no evidence to show that accused had shown his mobile phone, pen and slip with intent to insult the modesty of victim. Mere by showing the said objects without any other evidence or act is not sufficient to attract the provisions of Section 509 IPC.
27. As already discussed, there is no evidence on record that accused had threatened the victim or her father, thus, prosecution also failed to bring home the guilt of accused for the offence punishable under Section 506 IPC
28. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused for the offence punishable under Section 509/506 IPC read with Section 12 of POCSO Act beyond the shadow of reasonable doubt, thus, I hereby, acquit the accused Anil from all the charges.
29. File be consigned to record room.
Announced in the open Court on this 15th day of September, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI/sm SC No. 91/13 Page 13 of 13