Delhi District Court
State vs Riasat Ali on 15 July, 2017
IN THE COURT OF
SHRI BALWANT RAI BANSAL
ADDITIONAL SESSIONS JUDGE01, SPECIAL COURT
(POCSO), SOUTH, NEW DELHI
CIS SC No. 7533/16
Unique ID No.: 02406R0257372015
FIR No. 447/15
Police Station : Neb Sarai
In the matter of:
State
VERSUS
Riasat Ali
S/o Sh. Bashir Ahmad
R/o: House No..778/13, L1st,
Sangam Vihar, New Delhi.
............ Accused
Date of Institution : 02.06.2015.
Date of Reserving Judgment : 01.07.2017.
Date of Pronouncement : 15.07.2017.
JUDGMENT
1. This is a case where accused Riasat Ali has faced trial for having committed the offences punishable under sections 354 and 509 of IPC and sections 8 and 12 of the Protection of Children from Sexual Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 1 of 30 Offences (POCSO) Act, 2012 against a 17 years old girl child PW1 (the victim/prosecutrix), namely, S (real name withheld in order to conceal her identity and hereinafter referred to as 'the victim'), on the allegations that he used criminal force against her to outrage her modesty, insulted her modesty and sexually harassed her by uttering obscene words and also committed sexual assault by touching her body with sexual intent.
2. As per the facts of the case mentioned in the chargesheet, the State machinery came into action on receipt of DD No.51A dated 01.04.2015 by SI Raj Kumar. A complaint was lodged by the victim girl, namely, S, daughter of Riasat Ali that her father Riasat Ali used to consume liquor and thereafter he used to molest her and her sister. He used to beat them and also used to speak in vulgar language with them. She further alleged that when her mother used to intervene, then he also used to beat and abuse her. On the basis of the said complaint, FIR under sections 354 and 509 IPC and section 12 of POCSO Act was registered. Thereafter, on 02.04.2015, the accused Riasat Ali was Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 2 of 30 arrested and the statement of the victim girl was got recorded under section 164 of Cr.P.C., in which also the victim reiterated her version given in the FIR. During the investigation, the date of birth proof of the victim was collected, as per which, the date of birth of the victim was 06.06.1998. After concluding the investigation, the chargesheet in the case for the offences punishable under sections 354/509 of IPC and section 12 of POCSO Act was prepared and filed before the court concerned.
3. On 05.10.2015, charges were framed against the accused for his having committed offences punishable under sections 354 and 509 of IPC and sections 8 and 12 of POCSO Act, 2012 and the same was read over and explained to the accused, to which, he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as 08 witnesses, including the victim as PW1.
5. PW1, is the victim. The testimony of the victim will be evaluated at the later stage of the judgment.
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6. PW2, HC Bansi Singh, is the Duty Officer and on 01.04.2015, he recorded the DD entry No.51A pertaining to a written complaint received from the victim girl S, daughter of Riasat Ali regarding the eve teasing with her by her father and thereafter registered the FIR (Ex.PW2/A) on the basis of the said complaint.
7. PW3, is the elder sister of the victim (PW1) and she deposed that her victim sister S used to live with her alongwith their parents. Her father Riasat Ali (the accused) used to commit insolence and eveteasing against her and her sister S and also used to speak obscene words to her and her sister S. The accused used to commit the said wrongful acts against them after consuming liquor. She further stated that at that time, she and her victim sister S were studying on the same class, i.e., class 3rd standard as they both were got admitted at one time. She and her sister S were got admitted in the school very late and her age in class 3rd was about 13 years whereas the age of her sister S was 11 years. She further stated that last time the accused committed eveteasing against her and her sister S just one day prior to Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 4 of 30 the registration of the present case. She stated that the police did not make inquiry from her.
8. PW4, is the wife of the accused Riasat Ali and the mother of PW3 Aasiya and the victim S. She deposed that her husband (the accused) used to commit eveteasing with her daughters and also used to abuse her said daughters. The accused used to come to house under the influence of liquor and used to commit insolence with her said daughters, and whenever, she stopped the accused to not to do such vulgar activities, then the accused used to beat her up. She further stated that the accused after putting off his pant used to lay down on her daughters. Her victim daughter S reported the matter to the police and the police made inquiry from her (PW4) and also from her other daughter PW3 Aasiya.
9. PW5, Ct. Ajay Singh, is the witness of the arrest of the accused, who stated that on 02.04.2015, he alongwith the IO went to the house of the accused at Sangam Vihar, where accused Riasat Ali was found present and after making inquiry from the accused, the IO Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 5 of 30 arrested the accused in his presence vide arrest memo Ex.PW5/A, and the personal search of the accused was also conducted by the IO in his presence vide memo Ex.PW5/B.
10. PW6, Ms. Manisha Tripathy, the Metropolitan Magistrate, recorded the statement of the victim girl S on 08.04.2015 and she proved the proceedings under section 164 of Cr.P.C. in this regard as Ex.PW6/C.
11. PW7, Kishor Kumar, is the SubRegistrar (Births and Deaths), North DMC, Rohini Zone, Sector5, New Delhi, who stated that on 01.06.2015 while being designated on the said post, SI Raj Kumar from PS Neb Sarai had come to him for verification of the birth certificate of the victim girl, namely, S. He stated that he verified the photocopy of the date of birth certificate of the victim girl after checking the Birth Register and also made his endorsement on the said photocopy of the birth certificate. The witness proved the said photocopy of the date of birth of the victim S, which is on record, as Ex.PW7/A and also identified his signature on the same at point A. He Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 6 of 30 also proved the information regarding the birth of the victim S alongwith the Birth Register brought by him, as Ex.PW7/B.
12. PW8, SI Raj Kumar, is the Investigating Officer of the case, who deposed that on 01.04.2015, when he was present at the PS Neb Sarai, the Duty Officer of the police station had marked one complaint of the victim S to him as per the directions of the SHO, and on receipt of the same, he had gone through the complaint and thereafter made his endorsement for registration of the case under sections 354 and 509 of IPC and section 12 of POCSO Act vide Ex.PW8/A and gave the same to the Duty Officer for registration of the FIR. He further deposed that on the next day, i.e. 02.04.2015, he alongwith Ct. Ajay had reached the house of the victim/complainant at Sangam Vihar, where the victim was present alongwith her father Riasat Ali, and on pointing out by the victim towards Riasat Ali as her father, he made inquiries from Riasat Ali and after interrogation, he arrested the accused in this case vide arrest memo Ex.PW5/A. He also conducted his personal search vide memo Ex.PW5/B. The accused Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 7 of 30 was got medically examined from the AIIMS hospital and thereafter put in lockup and on the next day, i.e., on 03.04.2015, he was sent to judicial custody.
13. The IO/PW8 SI Raj Kumar further deposed that thereafter, on 08.04.2015, he had reached the house of the victim and collected the date of birth certificate of the victim which was issued from Government of NCT of Delhi, and he took the same into possession vide seizure memo Ex.PW8/B (MarkC). On the same day, he got recorded the statement of the victim girl S under section 164 of Cr.P.C. by the Metropolitan Magistrate. He further deposed that on 01.06.2015, he had reached the office of SubRegistrar (Births and Deaths), Rohini Zone, North Delhi, alongwith the photocopy of the date of birth certificate of the victim girl and got verified the date of birth of the victim girl, as per which, the date of birth of the victim was 06.06.1998. During the course of the investigation, PW8/the IO recorded the statement of the concerned witnesses and after completion of the investigation prepared chargesheet under sections Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 8 of 30 354 and 509 of IPC and section 12 of POCSO Act against the accused Riasat Ali and filed the same before the court.
14. The accused Riasat Ali was examined under section 313 of Cr.P.C. on 16.05.2017 and his statement was recorded. During his examination under section 313 of Cr.P.C., the accused denied the correctness of the incriminating evidence appearing against him during the prosecution evidence. The accused further stated that his wife had made illicit relations with his nephew and when he used to stop her from calling his nephew in the night, she became annoyed and got him arrested in this case by filing the false complaint through her daughters. He stated that he is innocent and he has been falsely implicated in this case at the behest of his wife.
15. The Ld. Special Public Prosecutor for the State has drawn my attention on the testimonies of the victim, the sister and the mother of the victim, and the other witnesses examined by the prosecution to prove its case and the documents exhibited during the examination of the prosecution witness, and submitted that there are sufficient Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 9 of 30 material on record to convict the accused for the commission of offences punishable under sections 354 and 509 of IPC and sections 8 and 12 of POCSO Act, 2012.
16. On the other hand, the Ld. Counsel for the accused submitted that the accused has not committed any offence alleged against him and he has been falsely implicated by his wife through his own daughters, and therefore, keeping in view the testimonies of the witnesses, the prosecution has failed to prove its case beyond reasonable doubt, and therefore, the accused is entitled to be acquitted.
17. I have considered the submissions made by the Ld. Special Public Prosecutor and Ld. Counsel for the accused and have gone through the record of the case carefully.
18. As already mentioned, the accused stands charged with the commission of offences punishable under sections 354 and 509 of IPC and sections 8 and 12 of POCSO Act, 2012.
19. Section 354 of the Indian Penal Code, which prescribes punishment for assault or criminal force to woman with intent to Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 10 of 30 outrage her modesty, reads as follows:
354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
20. Section 509 of the Indian Penal Code, which prescribes punishment for word, gesture or act intended to insult the modesty of a woman, reads as follows:
509. Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
21. Section 8 of Act 32 of 2012, which prescribes punishment for sexual assault, reads as follows:
8. Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine .
22. Sections 7 of Act 32 of 2012, which defines the offence of 'sexual assault', reads as follows:
7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
23. Section 12 of Act 32 of 2012, which prescribes punishment for sexual harassment, reads as follows:
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12. Punishment for sexual harassment.--Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extent to three years and shall also be liable to fine.
24. Section 11 of Act 32 of 2012, which defines the offence of 'sexual harassment', reads as follows:
11. Sexual harassment.--A person is said to commit sexual harassment upon a child when such person with sexual intent,--
utters any word or makes 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 makes a child exhibits his body or any part of his body so as it is seen by such person or any other person; or shows any object to a child in any form or media for pornographic purposes; or repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or entices a child for pornographic purposes or gives gratification therefor.
Explanation.-- Any question which involves "sexual intent" shall be a question of fact.
25. In the light of the charge framed against the accused and arguments advanced before the court, the first point for determination is: What was the age of the victim on the date of the incident?
26. In order to prove that the victim was a minor and a girl child below the age of 18 years and comes under the provision of Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 12 of 30 section 2(d) of POCSO Act, the prosecution has relied upon the testimony of PW7 Kishor Kumar, SubRegistrar (Births & Deaths), North DMC, Rohini Zone, Sector5, New Delhi, who has proved the record of the date of birth of the victim S, as Ex.PW7/A. As per the Ex. PW7/A, the date of birth of the victim is 06.06.1998. Therefore, at the time of the alleged incident which happened in the year 2015, the victim was 17 years of age and hence the victim was a child. The defence counsel has not disputed the age of the victim. Hence, it is held that at the time of the alleged commission of offences, the victim was a child under the provisions of section 2 (d) of POCSO Act, 2012.
27. The second point for determination is: Whether the accused used to utter indecent words and speak vulgar language or used to touch the body of the victim with sexual intent and committed offences punishable under sections 354 and 509 of IPC and sections 8 and 12 of POCSO Act, 2012 ?
28. The present case FIR was registered on the complaint of the victim Ex.PW1/A, in which she alleged that she used to reside Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 13 of 30 alongwith her parents and her sister. She further alleged that the accused, who is her father, used to consume liquor and misbehave with her and her sister and also used to give beatings to them. She further alleged that her father also used to speak vulgar language and when her mother used to resist him from doing the said acts, her father also used to give beatings to her mother. The said complaint was made on 01.04.2015, which culminated into the registration of the present case FIR.
29. Thereafter, the statement of the victim was recorded under section 164 of Cr.P.C. on 08.04.2015, in which, the victim stated that her father, the accused after taking liquor used to misbehave with them and also used to give beatings to her, her mother and her sister. She further stated that her father also used to speak abusive language and when she used to do household work, he used to catch her from her back. She further stated that he also used to tell her that "tumhara kya rate hai, sau rupaya le le aur mere paas aa jaa". She further stated that her father earlier used to speak such language after Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 14 of 30 consuming liquor, but now he used to speak the same even without consuming the liquor. The victim further stated that her father also used to tell her that "eisi chot dunga ki cheekh bhi nahi nikal paayegi", and he also used to threaten them by saying that neither he would let them live nor he would let them die and would not give divorce to her mother. She also stated that her father returned home after remaining in jail for 16 months.
30. When the victim was examined in the court as PW1, she deposed that the accused Riasat Ali is her father and she has two sisters. She has studied upto 5th standard at Nagar Nigam School, which was situated near her house. Her mother works in a company and prepares tea over there and her father (the accused) used to do whitewash etc. The victim further stated that whenever her mother used to leave for her job, her father Riasat Ali, after consuming liquor, used to do insolence with her and whenever she used to do cleaning job in her house, her father used to come from back side and he would tease her. He used to say "tera rate kya hai; sau rupay le lo aur mere Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 15 of 30 paas aa jao". Sometime, he used to open the zip of his pant and used to say "ye sab gande kaam karo aur mujhe paise lake do". By gande kaam he meant that she should go to other men and should stay with them in the night and take money from such other men. On other occasions also, when he was not drunk, he said such words to her, and he also used to ask her to have sex with him. He would use such words the meaning of which were not known to her and then would tell the meaning of those words to her.
31. PW1 (the victim) further deposed that the accused used to tell her as to how to use a condom and would also ask her to have sex with him and would tell her as to how to have sex. Her father also used to say that if she would have sex with him then it will give lot of enjoyment to her and also say that if she would have sex then he shall have no need to get married. He would also say, "ghar ka maaal ghar mein khapat ho jayega aur shadi bhi nahin hone denge". Her father (the accused) used to ask her not to disclose the said facts to her mother and he used to put her under fear and used to threaten her that Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 16 of 30 if she would tell her mother anything about his acts then he will give beatings to her mother and will throw her (the victim) out of the house. The victim further stated that on twothree occasions, in presence of her mother also, he unzipped his pant and when her mother asked him as to what he was doing, he told her mother that "ghar ka maal ghar mei khapat ho jayega" and he beat up her mother. The victim stated that her father did all those acts in the year 2015. She stated that she made a complaint to the police against the activities of her father and proved her statement given to the police as MarkA (Ex.PW1/A), and also proved her statement made before the Magistrate as MarkB (Ex.PW1/B). She was put a question that in her statement Ex.PW1/B it has been mentioned, "kahte hain itni chot dunga ki cheekh bhi nahi nikal payegi", what did you mean by these words, to which, the victim replied that the accused meant that he would do sexual intercourse with her to this extent that it will cause lot of pain to her. The victim was shown document MarkD which is the photocopy of her date of birth certificate and the victim stated that it was given by her to the police during the investigation. Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 17 of 30
32. PW1 (the victim) in her crossexamination conducted by the defence counsel, stated that before making complaint to the police, she made a call at number 100. She further stated that she made call at number 100 and not her mother and when she made call at number 100, her mother was present in the house, and besides her mother, her elder sister was also present in the house at the time of making call at number 100. She stated that the complaint Ex.PW1/A was made by her in the police station. She further stated that she went to the police station alone in the night. The victim voluntarily stated that the PCR officials came to her house in the morning and after seeing them, her father fled away and thereafter, they left and in the night, she went to the police station alone and there she made the complaint Ex.PW1/A. She further stated that when she left for police station, by that time, her mother had not returned from her workplace and she returned home at about 07:00 pm. She further stated that the statement of her mother was not recorded by the police in her presence. In connection with the investigation of the present case, in her presence, the police did not record the statement of any other person.
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33. In the crossexamination, the victim also agreed to the suggestion put by the defence counsel that in her statement Ex.PW1/A, it has not been mentioned that the accused used to open the zip of his pant in her presence and used to say wrong words and also used to ask her to bring money, or that the accused used to ask her to go to other men and to stay with them overnight and to bring money from them.
34. The victim also accepted the suggestions put by the defence counsel that in her statement Ex.PW1/A it has not been mentioned that the accused used to ask her to have sex with him or that the accused used to tell her as to how use a condom and that he used to tell her as to how to have sex, or that in her statement Ex.PW1/A it has not been mentioned that her father used to say that if she would have sex with him then it will give a lot of enjoyment to her, or that her father used to say that if she would have sex then she shall have no need to get married, or that the accused used to say, "ghar ka maal ghar mein khapat ho jayega aur shadi bhi nahin hone denge". The victim further stated that it is correct that in her statement Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 19 of 30 Ex.PW1/A it has not been mentioned that on twothree occasions, in presence of her mother also, the accused unzipped his pant and when her mother asked him as to what he was doing, so he told her mother that "ghar ka maal mein khapat ho jayega" and he beat her up.
35. The victim also stated in her crossexamination that before making complaint Ex.PW1/A, she also made a similar complaint against her father on earlier occasion and pursuant to the said complaint made by her on earlier occasion, her father remained in jail for a period of 16 months. She further stated that in the case which was registered against her father on the basis of the complaint made by her against him on earlier occasion, she compromised the dispute in the court, and after conclusion of the first case which was registered on her complaint, she alongwith her mother and sister again started living with the accused.
36. The victim denied the suggestion put by the defence counsel in her crossexamination that her father was opposed to Sabir visiting her house and meeting with her; or that several times her Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 20 of 30 father told her and her mother that the said Sabir should not visit to her house and she should not meet him; or that since the accused was against her meeting with the said Sabir, therefore, she falsely implicated him in the present case.
37. Ld. counsel for the accused has vehemently argued that the victim has improved her statement from one stage to another and her statement is not consistent and the same cannot be relied upon as the same is full of improvements and embellishments. He further submitted that not only the statement of the victim is inconsistent, but the statements of PW3 (the sister of the victim) and PW4 (the mother of the victim) are also full of improvements and embellishments. Ld. defence counsel has also submitted that the accused has been falsely implicated and that is why at the different stages of the case from investigation to trial, the victim has given different versions.
38. As noted herein above, the victim in her complaint has made allegations of misbehaving and uttering indecent words, against the accused. However, in her statement u/s 164 of Cr.P.C., the victim Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 21 of 30 made improvements when she stated that the accused used to catch hold of her from back side and used to say "as to what was her rate and take Rs.100/ and come to him". The victim in her examination before the court, has made a lot of improvements and embellishments which has been admitted by her in the crossexamination that in her statement Ex.PW1/A, it has not been mentioned that the accused used to open the zip of his pant in her presence and used to say wrong words and also used to ask her to bring money, or that the accused used to ask her to go to other men and to stay with them overnight and to bring money from them. She further admitted that in her statement Ex.PW1/A it has not been mentioned that on twothree occasions, in presence of her mother also, the accused unzipped his pant and when her mother asked him as to what he was doing, he told her mother that "ghar ka maal ghar mein khapat ho jayega" and he beat her up.
39. The victim further admitted the suggestions put by the defence counsel that in her statement Ex.PW1/A it has not been mentioned that the accused used to ask her to have sex with him or Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 22 of 30 that the accused used to tell her as to how to use a condom and that he used to tell her as to how to have sex, or that in her statement Ex.PW1/A it has not been mentioned that her father used to say that if she would have sex with him then it will give a lot of enjoyment to her, or that her father used to say that if she would have sex then she shall have no need to get married, or that the accused used to say, "ghar ka maal ghar mein khapat ho jayega aur shadi bhi nahin hone denge".
40. Therefore, keeping in view the aforesaid admission of the victim that these facts were not mentioned in her complaint, it shows that her statement is full of improvements and embellishments. From the statement of the victim, it can be deduced that though there are allegations of making vulgar and abusive language by the accused, but there are no allegation of any physical contact with the sexual intent by the accused. In her examinationinchief, the victim has nowhere stated that the accused used to touch her body part. She has stated that whenever she used to do cleaning work, her father came from back side and would tease her by saying "tera rate kya hai; sau rupaya le lo Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 23 of 30 aur mere paas aa jao". She also stated that her father used to do insolence with her.
41. So far as the testimony of PW3 (the sister of the victim) is concerned, she has also stated in her examinationinchief that the accused used to commit insolence and eveteasing against her and her victim sister and he also used to speak obscene words to her and her victim sister. PW3, the sister of the victim further stated that the accused used to commit the said acts after consuming liquor.
42. PW4, the mother of the victim in her statement also stated that the accused used to commit eveteasing with her daughters and also used to abuse her daughters. PW4 further stated that the accused used to come to house under the influence of liquor and used to commit the insolence with her daughters and whenever, she stopped the accused to not to do such vulgar activities then the accused used to beat her up. She also stated that the accused after putting off his pant used to lay down on her daughters. However, this witness has also made improvement because the said fact that the accused after putting Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 24 of 30 off his pant used to lay down on his daughters, has not been mentioned either in the statement of the victim or in the complaint and this fact is also not mentioned in the statement recorded u/s 161 of Cr.P.C. of this witness. PW4 also admitted that the said fact has not been mentioned in her statement recorded u/s 161 of Cr.P.C. Ex.PW4/DX1. Hence, the deposition of this witness to that extent cannot be relied upon.
43. The Ld. defence counsel has also argued that the statement of PW3, who is the sister of the victim, is also not reliable because in her statement, she stated that last time, the accused committed eveteasing against her and her sister just one day prior to the registration of the present case, while the said fact has not been mentioned in the statement MarkE (Ex.PW3/DX1) which has been admitted by the PW3.
44. As such, there are no allegations of sexual assault as required to fulfill the ingredients of the definition under section 7 of POCSO Act. However, from the aforesaid discussion, it cannot be said that the entire testimony of the victim and her sister and mother cannot Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 25 of 30 be believed.
45. As regards the allegation of misbehaviour and utterance of indecent and vulgar words, is concerned, the testimony of the victim has remained consistent and that part of testimony has remained unshaken. The testimony of the victim that the accused used to do insolence, has seen corroborated by the testimony of PW3 and PW4 that the accused used to speak abusive and indecent language. Hence, the ingredients of section 509 of IPC and section 12 of POCSO Act, are fulfilled.
46. The Ld. counsel for the accused has argued that the victim has not disclosed the date or time when the alleged offence was committed by the accused. I am not impressed with this argument of the counsel for the accused because the victim has categorically stated that the accused constantly used to do the acts of insolence and misbehaving and therefore, she could not have disclosed the particular date and time when the said offence was committed by the accused. However, the victim has categorically stated that the accused Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 26 of 30 committed the offences in the year 2015, therefore, the contention of the counsel for the accused that the testimony of the victim is not reliable on this count, is not acceptable.
47. Ld. counsel for the accused has also vehemently argued that the case of the prosecution cannot be relied upon because the accused had earlier been in jail for 16 months on the similar kind of allegations. Ld. defence counsel further argued that the accused has been falsely implicated, otherwise, if the accused was indulging in the said activities of misbehaving and molestation, then why the mother of the victim allowed him to stay in the house.
48. This contention of the Ld. defence counsel is bereft of any merit. In this case, the accused is not relative or friend of the victim, who could have been thrown out of the house. The accused is the father of the victim and therefore, it could not have been possible to ask the accused to not to live in the house and to live separately because of so many economic and social considerations. Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 27 of 30
49. The another contention of the Ld. defence counsel that the accused has been falsely implicated because the victim used to meet with one Sabir, who is nephew of the accused and the accused had objection on their meeting, for which they have falsely implicated the accused.
50. In the crossexamination of the victim, suggestions were put to the victim by the defence counsel that her father (the accused) was opposed to Sabir visiting her house and meeting with her which was denied by the witness. The victim also denied the correctness of the suggestion put by the defence counsel that since the accused was against the meeting of the victim to the said Sabir, therefore, the victim falsely implicated him in the present case. However, in his statement recorded u/s 313 of Cr.P.C., the accused has taken different plea that he has been falsely implicated at the behest of his wife, who has made illicit relations with his nephew and when the accused used to stop her from calling his nephew in the night, she became annoyed and got him arrested by filing the false case through his own Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 28 of 30 daughters. Therefore, this defence taken by the accused is in sharp contradiction to the suggestions put to the victim. Furthermore, the accused has not led any evidence in his defence to prove that his wife was having any illicit relation with the said Sabir and therefore, she has falsely implicated the accused through her daughters.
51. In view of the aforesaid discussions, the prosecution has failed to prove that the accused used criminal force against the victim by catching hold of her from her back with sexual intent, and therefore, therefore, the accused is not found guilty for the commission of offences punishable under section 354 of IPC and section 8 read with section 7 of POCSO Act as charged against him and hence, he is acquitted of the said offences.
52. However, the prosecution has succeeded to prove that the accused by uttering abusive and vulgar language, insulted the modesty of the victim and sexually harassed her by uttering such indecent words with sexual intent. Therefore, accused Riasat Ali is convicted of offences punishable under sections 509 of IPC and section 12 read Sessions Case No. 7533/16 "State v. Riasat Ali " Page No. 29 of 30 with section 11 of POCSO Act, 2012.
53. Let convict be heard on the question of sentence on 20.07.2017.
(Pronounced in the open court (Balwant Rai Bansal) on 15th of July 2017) Additional Sessions Judge01 Special Court (POCSO), South District:Saket Courts:
New Delhi.
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