Delhi District Court
State vs Mr.Mohd. Tahir And Anr. -:: Page 7 Of 7 ::- on 6 February, 2018
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-01, WEST,
SPECIAL COURT UNDER THE POCSO ACT,
TIS HAZARI COURTS, DELHI
New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2014.
State
versus
1. Mr. Mohd. Tahir
Son of Mr.Mohd. Majnu
Resident of Village Chand Peepar,
PS Kishan Pur, District Supol, Bihar.
2. Mr.Daud @ Guddu
Son of Mr.Jainul
Resident of Jhuggi no. 6426, Kale Khan Takiya,
Back side of Ervin Hospital, New Delhi.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 of the Indian Penal Code
and under sections 8/10 of the POCSO Act.
Date of filing of the charge sheet :
21.11.2014.
Arguments concluded on : 06.02.2018.
Date of judgment : 06.02.2018.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State
Ms. Shradha Vaid, counsel for Delhi Commission for
Women.
Accused Mr.Mohd. Tahir and Mr.Dauad @ Guddu on bail.
Mr.I.M Yadav, counsel for accused Mr.Mohd. Tahir.
Mr.Anil Kumar Kamboj, counsel for accused Mr.Dauad @
New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code
and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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Guddu.
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JUDGMENT
1. Mr. Mohd. Tahir and Mr. Dauad @ Guddu, both the accused persons, have been charge sheeted by Police Station Patel Nagar for the offences under sections 354/34 of the Indian Penal Code (hereinafter referred to as the IPC) and under sections 8/10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. Accused Mr.Mohd. Tahir has been prosecuted on the allegations that about 20-30 days prior to registration of present FIR i.e. on 02.07.2014, he with his co-accused Mr. Daud @ Guddu had administered milk, mixed with some intoxicating substance, to the minor prosecutrix to make her unconscious and he with his co- accused Mr. Daud @ Guddu had left the prosecutrix in his house and he had disrobed to the prosecutrix, torn her clothes and molested her.
3. Accused Mr.Dauad @ Guddu has been prosecuted on the allegations that about 20-30 days prior to registration of present FIR i.e. on 02.07.2014, he with his co-accused Mohd.Tahir left the prosecutrix in the house of his co-accused Mohd. Tahir, where his co-accused Mohd. Tahir had administered milk, mixed with some New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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intoxicating substance, to the minor prosecutrix to make her unconscious and he with his co-accused Mohd. Tahir had taken the prosecutrix to the house of his co accused Mohd. Tahir and he had done "Ched-Chhad" with the prosecutrix with intent to outraged her modesty.
4. The name, age, address and particulars of the prosecutrix are mentioned in the file and are withheld to protect her identity and she is hereinafter addressed as Ms.X, a fictitious identity given to her.
5. After completion of the investigation, the charge sheet was filed before the Court of the learned predecessor on 21.11.2014.
6. After hearing arguments, a charge for offences under section 328 IPC read with section 34 of IPC and under section 8 of the POCSO Act read with section 34 of IPC was framed against accused Mr.Mohd. Tahir and charge for offences under section 328 IPC read with section 34 of IPC and under section 8 of the POCSO Act read with section 34 of IPC was framed against accused Mr.Dauad @ Guddu vide order dated 05.08.2016 by the learned predecessor of this Court to which both the accused had pleaded not guilty and claimed trial.
7. On 07.11.2016, the processes issued to the prosecutrix for her evi- New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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dence through SHO received back unserved as SHO concerned had failed to serve the process to the prosecutrix. Thereafter, the process was again ordered to be served upon the prosecutrix. On 06.05.2017 processes were again ordered to be issued to the pros-
ecutrix through DCP concerned. On 03.02.2018, the process issued to the prosecutrix for evidence by ordinary process as well as through IO, SHO and DCP concerned had been received back with the report of being unserved as the prosecutrix was not available at the given address. Mr.Rohit Rajbir Singh, ACP, Patel Nagar has also submitted his report in writing regarding the non execution of the summons on the prosecutrix.
8. The prosecutrix is not traceable despite several efforts made by the IO, SHO and DCP concerned. It shall be futile to record testi- monies of other witnesses, who are formal and official, when the most material witness i.e. the prosecutrix is not traceable. In the given circumstances, the prosecution evidence was closed.
9. Nothing incriminating came forth in prosecution evidence against the accused as the prosecutrix is untraceable and not available at the given address, therefore, the statements of both the accused persons under section 313 of the Cr.P.C. are hereby dispensed.
10.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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relevant provisions of law and the precedents on the point.
11.There is nothing incriminating evidence against the accused Mohd.
Tahir and accused Dauad @ Guddu as the prosecutrix herself is not traceable.
12.In the circumstances, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the most material witness i.e. the prosecutrix is not traceable.
13.Consequently, no inference can be drawn that the accused Mr.Mohd. Tahir is guilty of the charged offences under section 328 IPC read with section 34 of IPC and under section 8 of the POCSO Act read with section 34 of IPC. No inference can be drawn that the accused Mr. Daud @ Guddu is guilty of the charged offences under section 328 IPC read with section 34 of IPC and under section 8 of the POCSO Act read with section 34 of IPC.
14.There is no material on record to show that about 20-30 days prior to registration of present FIR i.e. on 02.07.2014, accused Mr.Mohd. Tahir with his co-accused Mr.Daud @ Guddu had administered milk, mixed with some intoxicating substance, to the minor prosecutrix to make her unconscious and he with his co-accused Mr. Daud @ Guddu had left the prosecutrix in his house and he had New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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disrobed to the prosecutrix, torn her clothes and molested her. There is no material on record to show that about 20-30 days prior to registration of present FIR i.e. on 02.07.2014, accused Mr.Daud @ Guddu with his co-accused Mohd.Tahir left the minor prosecutrix in the house of his co-accused Mohd. Tahir, where his co-accused Mr.Mohd. Tahir had administered milk, mixed with some intoxicating substance, to the prosecutrix to make her unconscious and he with his co-accused Mohd. Tahir had taken the prosecutrix to the house of his co accused Mohd. Tahir and he had done "Ched-Chhad" with the prosecutrix with intent to outrage her modesty.
15.From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the case against accused Mr.Mohd. Tahir and Mr. Daud @ Guddu for the offences of administrating intoxication to the prosecutrix and molesting her.
16.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr.Mohd. Tahir for the offences under section 328 of the IPC read with section 34 of the IPC and under section 8 of the POCSO Act read with section 34 of the IPC. The conscience of this Court is also completely satisfied that the prosecution has failed to bring home the charge against accused New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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Mr.Daud @ Guddu for the offences under section 328 of the IPC read with section 34 of the IPC and under section 8 of the POCSO Act read with section 34 of the IPC.
17.Consequently, accused Mr.Mohd. Tahir and Mr.Daud @ Guddu are hereby acquitted of the charges for the offences of administering intoxication to the minor prosecutrix and molesting her punishable under section 328 of the IPC read with section 34 of the IPC and under section 8 of the POCSO Act read with section 34 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
18.Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
19.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
20.One copy of the judgment be given to the Substitute Additional Public Prosecutor, as requested.
21.After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14.
Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-
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room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 06th day of February, 2018. Additional Sessions Judge-01, Special Court under the POCSO Act, West, Tis Hazari Courts, Delhi.
********************************************************** New Sessions Case Number : 56734/2016.
Old Sessions Case Number : 247/2016.
First Information Report Number : 446/14. Police Station : Patel Nagar.
Under sections 354/34 IPC of the Indian Penal Code and sections 8/10 of the POCSO Act.
State versus Mr.Mohd. Tahir and anr. -:: Page 7 of 7 ::-