Acquital in false Protection of Children from Sexual Offences Act

IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL): DELHI

SC No. : 194/13
ID No. : 02401R0596392013
FIR No. : 87/13
Police Station : Gulabi Bagh
Under Section : 323/354/506/34 IPC r/w Section 8 POCSO

State
Versus
Karnail Singh
S/o Late Sh. Suraj Pal
R/o 10613, Gali No. 5
Pratap Nagar, Delhi………Accused No. 1

Deepa
W/o Karnail Singh
R/o 10613, Gali No. 5
Pratap Nagar, Delhi………Accused No. 2

Date of Institution : 21.11.2013
Date of judgment : 19.05.2014

Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Sachin Aggarwal, Advocate for Mr. Jitender Sethi,
Advocate, counsel for both the accused persons.

J U D G M E N T (ORAL) : –

1. Briefly stated facts of prosecution case are that on July 03, 2013 at about 9 PM, complainant (PW1) along with her two sisters, namely, PW2 and PW3 came to the police station Gulabi Bagh and lodged a complaint with duty officer that accused Karnail Singh and his wife Deepa had beaten them. Said intimation was recorded vide DD 21A (Ex.PW10/C). Constable Anjela was directed to record the statement of complainant (PW1) and thereafter DD No. 21A was assigned to SI Vijay. ( since the complainant and her sisters are victim of sexual assault, their identity is withheld and they are referred to as PW1, PW2 and PW3).

2. It was alleged that complainant (PW1) got recorded her statement Ex.PW1/B wherein she alleged that on July 03, 2013 at about 8 PM, she along with her two sisters, namely, PW2 and PW3 was going to doctor’s clinic as her sister PW3 had sustained burn injury on July 02, 2013. It was alleged that when they reached near Temple opposite to gali No. 6, accused Karnail Singh, who resided in their neighbourhood came there and started teasing her and passed indecent gestures and when complainant protested, accused Karnail Sinigh scratched her mouth and when her sister (PW2) raised objection, accused Karnail Singh had torn her salwar. It was alleged that when her another sister (PW3) raised objection, accused Karnail Singh hit on her chest and torn her suit from front side. It was further alleged that in the meantime Deepa wife of Karnail Singh also came there and both of them started beating complainant and her sisters. It was alleged that accused Karnail Singh had threatened if report be lodged to the police, he would kill complainant and her sisters. It was further alleged that earlier also Karnail Singh had made several attempts to tease her. Complainant and her sisters were got medically examined. Complainant was found sustaining blunt injury whereas no fresh injury was found on the person of PW2. On her statement, an FIR for the offence punishable under Section 323/354/354A/354B/509/34 Indian Penal Code (IPC in short) was got registered. During investigation, statement of PW2 and PW3 was also got recorded under Section 161 Code of Criminal Procedure (Cr. P.C. in short). Their torn clothes were seized. During investigation, statement of all the victims were got recorded under Section 164 Cr. P.C. It was alleged that since PW2 was found minor, provisions of Section 8 of Protection of Children from Sexual Offences Act (POCSO in short) was also added.

3. It was alleged that accused Deepa w/o Karnail Singh was granted anticipatory bail on July 15, 2013. On October 21, 2013, accused Karnail Singh was arrested. He was found involved in numerous other cases.

4. After investigation, challan was filed against accusd Karnail Singh for the offence punishable under Section 323/354/354B/509/506/34 Indian Penal Code and under Section 8 of Protection of Children from Sexual Offence Act whereas accused Deepa was challaned for the offence punishable under Section 323 of IPC.

5. Aftercomplying with the provisions of Section 207 Code of Criminal Procedure, a charge for the offence punishable under Section 354/354A/354B/324/506 IPC read with Section 8 of POCSO Act was framed against the accused Karnail Singh whereas a separate charge against both the accused persons for the offence punishable under Section 323/34 IPC was framed, to which they pleaded not guilty and claimed trial.

6. In order to bring home the guilt of accused, prosecution has examined as many as following 10 witnesses.
PW1 Complainant, material witness but turned hostile.
PW2 Sister of complainant, material witness but turned hostile.
PW3 Sister of complainant, material witness but turned hostile.
PW4 Geeta, neighbour, material witness but turned hostile.
PW5 SI Vimal Dutt, second investigating officer.
PW6 Kamlesh, material witness but turned hostile.
PW7 Uncle of complainant (in order to conceal the identity of victim, his identity is also withheld )
PW8 Father of victims (in order to conceal the identity of victims, his identity is also withheld )
PW9 Smt. Siksha Devi, neighbour, material witness but turned hostile.
PW10 SI Vijay Investigating officer.

7. Inview of the testimony of material witnesses, learned Additional Public Prosecutor closed the prosecution evidence on May 09, 2014.

8. Since, there is no incriminating evidence against the accused persons, their examination under Section 313 of Cr. P.C. was dispensed with.

9. Learnedcounsel appearing for the accused persons sagaciously contended that though prosecution has examined all the material witnesses, yet none of the witnesses has uttered even a single word against the accused persons. Learned Additional Public Prosecutor fairly conceded that the testimony of material witnesses examined by prosecution are not sufficient to prove the culpability of accused persons as all the material witnesses turned hostile. However, he submitted that suitable action should be taken against the complainant and her sisters who have resiled from their previous statements made on oath under Section 164 Cr. P.C.

10. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.

11. Prosecutionhas set up a case against the accused persons that when complainant along with her sisters was going to doctor’s clinic on July 03, 2013, accused Karnail Singh met them on the way near Temple opposite to gali No. 6 and thereafter he passed indecent gestures towards complainant and when she raised objection, he scratched on her mouth and when her sister PW2 raised objection, accused Karnail Singh torn her salwar and when her another sister PW3 raised objection, accused Karnail Singh torn her kamiz from front side. In the meantime, Deepa wife of accused Karnail Singh also joined him and thereafter they gave beating to the complainant and her sisters. However, when complainant PW1 and her sisters PW2 and PW3 graced the witness box, they all turned hostile completely and did not support the prosecution case in any manner. Though, complainant and her sisters were examined at length by learned Additional Public Prosecutor, yet during their cross-examination nothing could be extracted which may help the prosecution to prove the culpability of accused persons. Thus, the testimony of PW1, PW2 and PW3 are not helpful to the prosecution to prove the culpability of accused persons.

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12. Prosecutionhas also set up a case that PW4, PW6 and PW9 also reached the spot after hue and cry and they also witnessed the said incident but all the said witnesses also turned hostile completely and did not support the prosecution case in any manner. Admittedly, PW7 and PW8 were not the eye witnesses and they came to know about the incident later on. Thus, their testimony is not helpful to the prosecution to prove the culpability of accused persons. Moreover, both the witnesses also turned hostile completely and did not support the prosecution case in manner.

13. Remainingwitnesses are PW5 SI Vimal Dutt to whom further investigation was assigned and PW10 who conducted the investigation. In view of the fact that material witnesses turned hostile completely and they did not support the prosecution in any manner, their testimony is also not helpful to prosecution to prove the guilt of accused persons.

14. Fromthe aforesaid discussion, it becomes abundantly clear that there is no iota of evidence against the accused persons, thus, prosecution has miserably failed to bring home the guilt of accused persons, thus, I acquit both the accused persons from all the charges.

15. Now, coming to the next contention raised by learned Additional Public Prosecutor as to whether it is a fit case to take legal action against the complainant and her sisters.

16. Itis undisputed fact that during investigation complainant and her sisters made statement on oath under Section 164 Code of Criminal Procedure and their statements are Ex.PW1/A, Ex.PW2/A and Ex.PW3/C respectively.

17. PW1complainant lodged an FIR against the accused persons by making her statement Ex.PW1/B that when she along with her sisters, namely, PW2 and PW3 reached near Temple opposite to gali No. 6, accused Karnail Singh S/o Suraj Pal, R/o 10613, Gali No. 5, Pratap Nagar, Delhi who resided in her neighbourhood came in front of her and started teasing her and passed indecent gestures and when she raised objection, accused Karnail Singh scratched her mouth and when her sister PW2 raised objection, accused Karnail Singh torn her salwar and when her another sister PW3 raised objection, accused Karnail Singh hit on her chest and torn her suit (shirt) from front side. In the meantime, Deepa wife of accused Karnail Singh also came there and she also started beating them. It was further alleged that accused Karnail Singh had threatened them, if complaint was made to the police, he would kill the complainant and her sisters and further alleged that previously also accused Karnail Singh had made several attempts to tease her. Thus, from her complaint Ex.PW1/B, it becomes clear that complainant and her sisters knew accused Karnail Singh and his wife Deepa previously. Similarly, complainant in her statement under Section 164 Cr. P.C. (Ex.PW1/A) made specific allegations against the accused Karnail Singh and his wife Deepa. Similarly her sisters i.e.PW2 and PW3 in their statement recorded under Section 164 Cr. P.C., which are exhibited as Ex.PW2/A and Ex.PW3/C respectively made specific allegations against both the accused persons.

18. Frombare perusal of the FIR and the statement of witnesses recorded under Section 164 Cr. P.C., it can be culled-out that they knew the accused Karnail Singh and his wife Deepa previously. However, when complainant appeared in the witness box, she turned hostile completely by deposing that when they reached near Mandir outside their gali, there was no light in the area and some boys came there along with 2-3 girls and they were abusing them and when they raised objection, they started scuffling with her, consequently, she sustained injury on her cheek. She further deposed that when scuffling took ugly turn, they had also started scuffling with her sisters (PW2 and PW3) and in the said scuffling, shirt and salwar of her sisters (PW2 and PW3) were torn. She further deposed that since there is no electricity in the area, she could not see the face of that persons and females and further deposed that she was not sure whether she could identify anyone of them or not. She further deposed that they did not inform the police; rather someone from public made a call to police and further deposed that she did not go to the police station along with her sisters and further deposed that on the next day they went to police station and at that time she was accompanied with her Bua and her sisters. She further deposed that someone from crowd told her that probably Karnail Singh and his wife Deepa were among the assailants and further deposed that she did not give any statement to the police. She further testified that no one had given any threat either to her or to her sisters. During crossexamination conducted by learned Additional Public Prosecutor, she deposed that she did not know Karnail Sinigh. However, stated that she knew his wife Deepa and admitted that she is residing in her neighbourhood. She failed to identify the accused Karnail Singh. She categorically denied the prosecution version that accused Karnail Singh and his wife Deepa were the assailants. She admitted that none had given any threat her either today or previously and she was not under any pressure. She further deposed that she did not know whether on the basis of her complaint Ex.PW1/B and statement made under Section 164 Code of Criminal Procedure (Ex.PW1/A), accused Karnail Singh and his wife Deepa were arrested and further deposed that she did not know whether any other person was arrested on basis of her above said complaint and statement. She further deposed that police did not inform her about the action taken on her complaint.

19. Fromthe deposition of PW1, it becomes clear that she had completely resiled from her complaint Ex.PW1/B and the statement made under Section 164 Cr. P.C. (Ex.PW1/A). On the contrary, she tried to set up new case that she had disclosed the name of accused Karnail Singh and his wife Deepa because some unknown person told her that probably they were the assailants but she could not see the face of assailants due to darkness in the area. Similarly, PW2 also turned hostile stating that there was no electricity in the area and scuffled had taken place with 2-3 boys and her salwar was torn during the scuffle. Similarly, shirt of her sister (PW3) was also torn during the scuffle and further deposed that none had torn their clothes. She admitted that no threat was given to her and also admitted that she had made a statement Ex.PW2/A under Section 164 Cr. P.C. During cross-examination conducted by learned Additional Public Prosecutor, she stated that she did not know any person by the name of Karnail Singh and his wife Deepa and she failed to identify both the accused persons. Though she admitted that she had made allegations against the accused Karnail Singh and his wife Deepa in her statement under Section 164 Cr. P.C. but stated that she had made allegations against them at the instance of police because police advised them to make allegations against the accused Karnail Singh and his wife Deepa because public persons told the police that assailants might be Karnail Singh and his wife Deepa. When a court question was put to her, she admitted that she had made false allegations against the accused Karnail Singh and his wife Deepa in her statement under Section 164 Cr. P.C. (Ex.PW2/A) but took the plea that she did so as she could not see assailants and public persons told her that assailants were Karnail Singh and his wife Deepa. However, when a question was put to her whether she could tell the name of public persons who told her about the same, she replied that she cannot tell their name. She also stated that she did not inform learned Metropolitan Magistrate that she had made allegations against accused Karnail Singh and his wife Deepa at the instance of unknown public persons or police officials. She deposed that she did not know whether police had arrested Karnail Singh and his wife Deepa on the basis of her statement and statement of her sisters made to the police. However, she admitted that no threat was given to her.

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20. Fromher testimony, it becomes clear that she had impleaded accused Karnail Singh and his wife Deepa at the instance of some unknown persons and none had torn their clothes but the same were torn during scuffle with some unknown persons. It is also clear that accused Karnail Singh and his wife Deepa were not responsible for the alleged incident.

21. Similarly, PW3 turned hostile completely by deposing that the quarrel had taken place with 6-7 persons and 2-3 ladies and in that process someone had pushed complainant and scratched on her face. In the meantime, some ladies assaulted her and her sisters (PW1 and PW2) and in that process her shirt and salwar of her sister was torn. Police also came there and she also admitted that she had made a statement under Section 164 Cr. P.C. (Ex.PW3/A). During cross-examination conducted by learned Additional Public Prosecutor, she stated that she did not know the accused Karnail Singh and failed to recognise him. She also denied the suggestions that accused Karnail Singh had torn her shirt or salwar of her sister or he also scratched the mouth of complainant. She also denied that Deepa was was involved in the incident. She admitted that she was not under any threat from any corner. She admitted that she had named Karnail Singh and his wife Deepa in her statement Ex.PW3/C and admitted that she had made false allegations against them in her statement under Section 164 Cr. P.C. but took the plea that she did so because public persons told her that assailants were Karnail Singh and his wife Deepa and further admitted that she made allegations against them before police at the instance of said public persons but stated that she cannot tell their name. She further stated that she did not know whether accused Karnail Singh and his wife Deepa were arrested by the police on the basis of her statement and on the statement of her sisters. She further stated that she told the police that she had disclosed the name of Karnail Singh and his wife Deepa at the instance of unknown person but she did not disclose this fact before the learned Metropolitan Magistrate.

22. Asper statement of PW1, PW2 and PW3, the alleged incident had taken place on July 03, 2013 at about 8 PM. DD No. 21A (Ex.PW10/C) was got recorded by complainant at 9.06 PM wherein complainant had categorically named the accused Karnail Singh and his wife Deepa. Thereafter, her statement was recorded by Constable Anjela and in her statement Ex.PW1/B, she had made specifically allegations against the accused Karnail Singh and his wife Deepa and further alleged that accused Karnail Singh was residing in her neighbourhood. Similarly, PW2 and PW3 also made specific allegations against the accused Karnail Singh and his wife Deepa. But when they entered the witness box, PW1, PW2 and PW3 took the plea that they made allegations against the accused Karnail Singh and his wife Deepa at the instance of unknown public person as they could not see the face of assailants as there was darkness in the area and public persons told them that probably the assailants were Karnail Singh and his wife Deepa. Admittedly, this fact was not disclosed by any of them either before police or before learned Metropolitan Magistrate. If they had not seen the assailants, it was their duty to inform the police that though they had not seen the assailants, yet public persons told them the assailants might be Karnail Singh and his wife Deepa. But complainant and her sisters failed to state so. Rather they made specific allegations against the accused persons. Thus, it become clear that either PW1, PW2 and PW3 have made a false statement before this Court or they have made a false statement on oath before the learned Metropolitan Magistrate under Section 164 Cr. P.C.

23. Falseevidence is defined under Section 191 Indian Penal Code whereas fabricating false evidence is defined under Section 192 Indian Penal Code. Both are reproduced as under:

191. Giving false evidence– Whoever, being
legally bound by an oath or by an express
provision of law to state the truth, or being bound
by law to make a declaration upon any subject,
makes any statement which is false, and which
he either knows or believes to be false or does
not believe to be true, is said to give false
evidence.
Explanation 1.- A statement is within the meaning of this section, whether it is made verbally or otherwise.

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Explanation 2. – A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

192. Fabricating false evidence– Whoever
causes any circumstances to exist or [makes any
false entry in any book or record, or electronic
record or makes any document or electronic
record containing a false statement], intending
that such circumstances, false entry or false
statement may appear in evidence in a judicial
proceeding, orin a proceeding taken by law
before a public servantas such, or before an
arbitrator, an that such circumstances, false entry
or false statement, so appearing in evidence may
cause any person who in such proceeding is to
form an opinion upon the evidence, to entertain
an erroneous opinion touching any point material
to the result of such proceeding, is said “to fabricate false evidence”.

24. As already stated that PW1, PW2 and PW3 either made false evidence before this Court or before learned Metropolitan Magistrate on oath under Section 164 Cr. P.C. Prima-facie their act amounts giving false evidence and fabricating false evidence as defined under Section 191 and 192 IPC. Indisputably, statements before learned Metropolitan Magistrate under Section 164 Cr. P.C. and the complaint Ex.PW1/B were made within an intention that the same shall be used during judicial proceeding against the accused persons, thus prima-facie complainant and her sisters (PW2 and PW3) have committed an offence punishable under Section 193 IPC.

25. Nowquestion arises as to whether proceeding can be initiated against the PW2 who was 17 years 9 months and 6 days old at the time of alleged incident. As per record, her date of birth is October 28, 1995. Thus, she was minor a the time of incident but she was major when she appeared in the witness box on April 24, 2014. Since, the offence was committed on April 24, 2014 when she resiled from her previous statement, thus, to my mind, there is no bar under law to proceed against her.

26. Nodoubt, under Section 22 of POCSO Act, no action can be taken against a child if child makes a false complaint or provides false information. To my mind, police cannot take any action against any child, if during investigation, it is revealed that the child had made a false complaint or information provided by him/her is false. But this does not empowers a child to make a false deposition in judicial proceeding. This further clears from Section 22 (1) of POCSO Act because the maximum sentence to furnish false information is up to six months or with a fine or both whereas to make a false statement on oath before the Court and to give false evidence or fabricate false evidence is punishable for imprisonment which may extend upto 7 years. This further makes it clear that Section 22 of POCSO Act does not empowers a child witness to make a false statement in judicial proceeding. Thus, I am of the view that Section 22 of the POCSO Act does not prevent the Court in any manner from proceeding even against the child witness, if there are sufficient reasons to believe that the child witness has made a false evidence or created a false or fabricated circumstance. At the cost of repetition, it is pointed out that in instant case PW2 was not a child at the time when she graced the witness box on April 24, 2014.

27. Itis pertinent to mention here that accused Karnail Singh was arrested by the police on October 21, 2013 and he was released on bail on December 21, 2013, thus, he remained in jail for two months on the basis of allegations made by complainant and her sisters and now they very easily stated they had made allegations against him at the instance of some unknown persons. Thus, it becomes clear that accused Karnail Singh has been deprived from his personal liberty for about two months on the basis of allegations levelled by the complainant and her sisters.

28. Needlessto say that witnesses play a significant role in the administration of criminal justice. If witnesses be permitted to behave in such a irresponsible manner, it will become just impossible for courts to impart justice. If they (PW1 to PW3) have settled their dispute with accused persons out of the Court, they should have approached the Hon’ble High Court of Delhi in accordance with law for quashing of proceedings instead of making a false statement before the Court. It is pertinent to state that witnesses did not depose that they have settled the dispute with the accused persons. If witnesses like PW1, PW2 and PW3 are not checked or dealt with sternly wrong message would disseminate among public at large that witnesses can take somersault during trial at any point of time as per their whims and fancies without facing any consequences, thus, I am of the considered opinion that PW1, PW2 and PW3 deserve to face the consequences of their wrongful act.

29. Inview the above discussion, I am of the considered opinion that prima-facie there are sufficient material on record to show that PW1, PW2 and PW3 had committed the offence punishable under Section 193 of IPC. Since, a complaint under Section 195 Code of Criminal Procedure is required to take cognizance for the offence punishable under Section 193 Indian Penal Code, this Court authorises Reader of the Court i.e.Sh. Amit Sharma to file a complaint against PW1 (Renu), PW2 (Barkha) and PW3 (Kiran) on behalf of this Court for the offence punishable under Section 193 IPC before the Court of learned Chief Metropolitan Magistrate. He is further directed to submit the compliance report within three weeks from the date of judgment.

Conclusion :-30. Inthe light of the above discussion, I hereby, acquit both the accused persons, namely, Karnail Singh and Deepafrom all the charges. Sh. Amit Sharma, Reader of this Court is authorised and directed to file a complaint against the complainant PW1 (Renu) and her sisters PW2 (Barkha) and PW3 (Kiran) before the Court of learned Chief Metropolitan Magistrate for the offence punishable under Section 193 of Indian Penal Code and submit the compliance report within three weeks.
31. Filebe consigned to record room.

Announced in the open Court on this 19th day of May, 2014
(PAWAN KUMAR JAIN)
Additional Sessions Judge-01
Central district, Tis Hazari, Delhi/sm

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