IN THE COURT OF SHRI SANJAY SHARMA-I
JUDGE SPECIAL COURT (POCSO Act)/ADDL. SESSIONS JUDGE – 01
(NORTH-EAST) KARKARDOOMA COURTS : DELHI
Under Section 457/382/354-B/506(II)/376(2)(i) IPC @ Sec 6 POCSO Act
Imran S/o Mohd. Sabir
R/o B-241/4, Gali No.1, Krishan Kunj Gali, North
Ghonda, Delhi. Permanent Address: H.No.185,
Village Taki, PS Dewarniya, Tehsil Bahedi, District
Date of institution of case : 13.11.2013
Date on which judgment reserved : 03.04.2017
Date of judgment pronounced : 06.04.2017
Manoj Giri made a complaint to the police that he was a property dealer by profession and on the night of 22.08.2013, he was sleeping with his wife on the ground floor of his house and his three children were sleeping on the first floor. On 23.08.2013, at about 04.00am, his daughter, victim, a minor girl, aged about 11 years came to him weeping and told him that while she was sleeping in her room, one boy came to her and tried to disrobe her, she woke up and then he tried to molest her and asked her to remain quiet and took out Rs.10,000/- from the pant of the complainant, which was hanging in the room. He further stated that the victim told him that she had seen the boy working in a nearby under construction house. Thereafter, he took the victim to the said under construction house where the victim identified a boy as the boy who had committed the above acts. Complainant further stated that he tried to overpower the boy, who tried to run away by pushing him but the boy slipped and fell on the ground and he caught hold of him and made a call to the police.
On the basis of above complaint, present case was registered for the offences punishable under Section 376/506/457/392/397 IPC and Section 6 of POCSO Act. The victim and the accused were got medically examined. Accused Imran was arrested after his medical examination. The statement of the victim got recorded under Section 164 CrPC.
After completion of investigation, chargesheet was filed against the accused before this Court for the offences punishable under Section 380/354-A/354- B/376/457/506/392/397 IPC and Section 6 of POCSO Act. On hearing Ld. Addl. PP for the State and Ld. Counsel for the accused and after considering the material on record, Ld. Predecessor framed a charge against accused Imran for the offences punishable under Section 457/382/354-B/506(II) IPC and under Section 6 of the POCSO Act, vide order dated 03.02.2014. However, during trial an alternate charge, dated 03.10.2016, for the offence punishable under Section 376(2)(i) IPC was also framed against the accused. The accused pleaded not guilty to the charges and claimed trial.
In order to bring home the guilt of the accused, prosecution examined 9 witnesses at the trial:
PW-1 Sh. Manoj Giri was the father of the victim and complainant in this case.
PW-2 ASI Rati Ram was the duty Officer. He proved his endorsement on the rukka as Ex.PW2/A and the computerized copy of the FIR as Ex.PW2/B.
PW-3 Ct. Ajay had reached the spot with the IO on receipt of DD No.9-A. He also took the accused to the hospital for medical examination and the rukka to the PS for the registration of the FIR and was also a witness to the arrest of the accused.
PW-4 was the victim herself. She deposed about the incident.
PW-5 Ct. Prem Prakash taken the accused to the hospital for his medical examination alongwith the IO. He also collected the exhibits of this case from the MHC(M) and deposited the same with FSL Rohini.
2 PW-6 SI Deepak Kumar was the first IO. He had reached the spot alongwith Ct. Ajay on receipt of DD No.9-A. He recorded the statement of the complainant and prepared a rukka upon it, Ex.PW6/A.
PW-7 lady Ct. Sapna had taken the victim to the hospital for her medical examination, accompanied by the mother of the victim.
PW-8 HC Jitender was the MHC(M). He proved the copy of relevant entries in Register No.19 regarding depositing the exhibits in the malkhana as Ex.PW8/A and Ex.PW8/B and sending them to the FSL Rohini vide Ex.PW8/C and Ex.PW8/D, respectively.
PW-9 SI Vandna was the final IO of this case, who deposed about the investigation conducted by her in detail and also proved the various documents prepared/collected during investigation.
Statement of the accused was recorded under Section 313 CrPC and the entire incriminating evidence was put to him which he denied and pleaded innocence. He took the defence that he was beaten up by Manoj Giri (complainant) and his friends as they had got angry and that the victim was tutored and he was falsely implicated in this case.
I have heard Sh. Sukhbeer Singh, Ld. Addl. PP for the State and Sh. SK Atri, Ld. Counsel (Amicus Curiae) for the accused and gone through the records.
It was submitted by the Ld. Addl. PP that a heinous offence was committed with a minor victim, who had been consistent in statement at every stage of the proceedings and therefore, the case of the prosecution stands proved and thus prayed for the conviction of the accused.
On the other hand Ld. Defence Counsel pointed out to the various contradictions in the prosecution case and the numerous improvements made by the victim at every stage of the proceedings. It was submitted that accused has been falsely implicated as he was badly beaten by the victim’s father merely on suspicion and in order to 3 save himself from prosecution, he made allegations against the accused.
The present case is based on the testimony of the PW-1, complainant and the father of the victim and that of the victim herself i.e. PW-4. Admittedly, PW-1 had not seen the incident and it was told to him by the victim. The contents of the complaint have already been reproduced hereinabove. During his examination-in-chief, PW-1 made various improvements. He deposed that the victim told him that while she was asleep, the boy searched the locker. If the victim was asleep, she could not have seen the accused searching the locker. He further deposed that thereafter, the accused undressed her and put a knife on her neck and then tried to do wrong act with her. In his complaint, there was no mention of any knife to be with the accused which he put upon the neck of the victim. He also deposed that he later came to know that the boy entered his house through a bamboo stair, which was again an improvement from his complaint Ex.PW1/A. He further deposed that the victim told him that she could identify the accused as once he had taken water bottle from their house, which was again an improvement from his complaint Ex.PW1/A. He further deposed that he then called up one Deepak Jain, whose building was under construction, who came to his house and took him to the place where his labours were staying and from there the accused was apprehended on the identification of the victim. There is again no mention of any Deepak Jain in his complaint Ex.PW1/A.
PW-1 further deposed that police came to his house and had given the telephone number of the PS. He also deposed that after apprehending the accused, he again called the police at the given number and the police again came to his house, apprehended the accused and took him to the PS. If he had already apprehended the accused, there was no occasion to the call the police for the second time and on the contrary if the police had already arrived before he went in search of the accused, there was no occasion for the police to have come again and could have joined him in the search. Hence, he made contradictory deposition.
In the cross-examination, PW-1 was confronted with his previous statement Ex.PW1/A where it was not recorded that the accused came to his house through a 4 bamboo stair. In any case, no bamboo stair was recovered during investigation at the behest or at the pointing out of the accused. He further deposed that firstly the victim came downstairs, followed by his two other children. This deposition was contradictory to the deposition of the victim, who deposed in this regard that she came downstairs alone while her two siblings kept sleeping. PW-1 firstly deposed in the cross-examination that he had started searching for the accused within two minutes and the house where he was found was adjoining to his house, again contradictory to the deposition of PW-4 victim, who deposed that it took about 30 minutes in reaching to the house under construction. Subsequently, PW-1 deposed that the place of residence of the labours was different from the place of construction and the distance between his residence and where the accused was found was about 150 meters. He also deposed that when the accused was traced, Deepak Jain and Vikas Aggarwal were with him, again contrary to the version of the victim, who deposed that only she and PW-1 had gone in search of the accused. In any case, the said Deepak Jain and Vikas Aggarwal were never examined during investigation nor cited as witnesses.
PW-1 further deposed that the cash of Rs.10,000/- which was stolen was kept in a purse which was kept in his pant hanging in the room on the first floor where the victim was sleeping. He deposed that the purse was found lying in the open space outside the room on the first floor, which was later on picked up by the victim and it was placed on the fridge in that room. It is to be noted that though the accused was apprehended within two hours of the said incident but no cash could be recovered from him. The purse from which the theft was committed was never seized by the IO.
In his further cross-examination, he deposed that on reaching the house where the accused was staying, the door was opened by the thekedar (contractor) when he knocked at the door but again the said contractor was neither examined nor cited as a witness, though it must have been that the victim identified the accused in his presence. He never deposed that he went to the hospital where the accused was 5 admitted and also showed ignorance about the injuries on the person of the accused whereas according to the IO, PW-6 and PW-9, the accused had been taken to GTB Hospital as he was having injuries on his legs and PW-9 deposed that she arrested the accused in the hospital in the presence of PW-1, which fact was never deposed by PW-1. It only shows that all the documents have been manipulated and creates doubt at least in the complicity of the accused. It is to be noted that the initial call was made at number 100 regarding the theft only. The said call was recorded vide DD No.9-A, which is on record and it mentions regarding the theft in H.No. B-139. The said call was made by PW-1 only after the victim disclosed all the facts to him but despite that no allegations of molestation of a minor girl were made in the said call.
The victim in this case was though 11 years and 6 months old at the time of the incident, however, she made improvements at every stage of the proceedings. In her statement made to the police, under Section 161 CrPC, she stated that on 22.08.2013, she was sleeping with her brother and sister in the room when at about 4.00am, one boy came inside her room, who was working as a labour in the adjacent house and tried to remove her clothes but in the meanwhile, she woke up upon which the boy started molesting her and asked her to keep quiet. She further stated that thereafter the said boy took out Rs.10,000/- from the pant of her father and fled away and then she told all the facts to her father after going downstairs and he took her to the room of the labours where she identified the said boy. This statement was recorded on 23.08.2013 itself. She was brought to the court where her statement was recorded under Section 164 CrPC, which was recorded on 26.08.2013 i.e. after about three days. In that statement, she gave an elaborate and much improvised version of the incident. She stated that on 23.08.2013, at about 4.00am, she was sleeping with her brother and sister in the room while her parents were sleeping in the room downstairs. She woke up on hearing some noise in the room and saw a person trying to open the almirah on which she asked as to who he was, on which that person replied that someone had sent him to their room and thereafter he placed a knife on 6 her neck and asked her to remove her clothes to which she refused. She further stated that thereafter that person tore her clothes and started kissing her and then put his urinating organ in her mouth and told her that whatever would come out from his urinating organ, should be consumed by her and after sometime, something came out of his urinating organ but she did not drink it. She further stated that some watery substance came out of his urinating organ and got on her top. She further stated that said person threatened her that if she told the said acts to anyone, he would kill her and then he went away. She further stated that thereafter, she told all the facts to her parents and that the said person was working as a labour nearby. She further stated that after about half-an-hour, her father brought that person before her and she identified him immediately.
Thus, she inserted totally new facts which were neither stated by her in her statement under Section 161 CrPC nor were stated by PW-1 either in his complaint or in his deposition before the Court. As per this statement, she had never gone with her father PW-1 to identify the accused but it was PW-1, who on his own had brought the accused before her after half-an-hour and she identified him. It is not known as to how her father could have apprehended the right person without having his identity.
The victim appeared in the witness box as PW-4 and again changed the version. She deposed that on 23.08.2013, at about 04.00am, she was sleeping with her brother and sister in the first floor room and woke up when she was teased by a person and on seeing him, she identified him to be the labour who was working in the adjacent house under construction. She introduced another fact deposing that said person was putting his hands under her clothes and was having a hanky on his face but removed it and then she was able to see him in the lights. She deposed that the accused placed a knife on her neck and she asked him to go away but he did not and then forcibly removed her clothes, opened his pant and put off the light and thereafter put a bottle like object into her mouth. On being questioned by the Court, the victim explained that it was a skin and flash type bottle and part of his body used in washroom for urination and deposed that he put it on her lips and then again made an improvised 7 deposition that he had also put it on the bottom part of her body and tried to force inside but she did not felt any pain.
Thus, she again resiled from her statement under Section 164 CrPC where she stated that the accused tore her clothes and asked her to consume his semen and ejaculated on her clothes. She further improvised by saying that the accused had put off lights before putting his urinating organ on her lips. Thereafter, the victim deposed that the accused went away while threatening to kill her and then she went downstairs and told above facts to her parents, also told her father about the particulars of that person, who in turn took her to the adjacent house under construction and that person took her and her father to a place where twelve labours were staying and she identified one of them. It is noticeable that though the victim woke up while the accused came to her and her brother and sister were sleeping nearby but she never raised any alarm on seeing an intruder and kept talking to him. She was confronted with her previous statement where all the facts as stated by her in her examination- in-chief that the accused took off his pant after closing lights, inserted his bottle like organ on her lips and bottom part of her body were not recorded nor it was recorded that the accused had placed a knife on her neck. She was also confronted with her statement under Section 164 CrPC where the fact that accused took away Rs.10,000/- from the pant of her father, hanging in the room was not recorded. She also deposed that she had seen the accused once or twice prior to the incident while he was working in the nearby house.
In her further cross-examination, she deposed that her siblings kept sleeping throughout the entire incident. She also deposed that only she and her father had gone in search of the accused, contrary to the version of PW-1, as observed hereinabove. She further deposed that the accused had only pulled down her lower but had not removed it, again contrary to her version made before the Ld. MM under Section 164 CrPC, Ex.PW4/A. The number of improvements made by her at every stage makes her an untrustworthy witness.
Apart from the above contradictions and improvements, when the accused was 8 shown to the victim during the trial and was asked to identify him, she deposed that he was probably the same person but could not recollect properly due to lapse of time. Hence, the accused was not properly identified by her in the Court. However, she started crying on seeing the accused but did not disclose the reason for that. The victim was the best person to have identified the accused as even her father had identified him only on the basis of her identification of the accused and when she was doubtful regarding his identity, the identification of the accused by her father or by any other witness including the IO cannot be believed.
The investigation of the case was also not above mark. PW-6, the first IO, was the first person who reached the spot. According to him, he had reached the place where the accused was apprehended and according to him, the wife of the complainant was also present there, contrary to the deposition of PW-1 and PW-4, who never deposed about her presence. He also deposed that he remained at the spot for about one hour, again contrary to the deposition of PW-1, who stated that he remained there for about ten minutes. In cross-examination, PW-6 deposed that he inspected the room where the incident took place and a double bed was lying in the room, again contrary to the deposition of PW-1 and PW-4, who deposed that only one folding cot was lying there.
It was deposed by PW-1 that there were no windows in the room on the first floor where the incident took place and only one door was there leading to the room. The staircase leading to the room was from inside the house. Thus, the accused could not have reached the said room through any bamboo staircase, as deposed by PW-1 and could have entered only from the main entrance of the house. It is nobody’s case that the main entrance to the house was found open. It was also not deposed by PW-1 that there was any terrace above the first floor room or there was any way from the terrace to that room. Thus, the question as to how the accused could have entered the room, remains unanswered. The site plan of the room has also not been prepared by the IO nor any photographs were placed on record.
As per the statement of the victim, made under Section 164 CrPC, Ex.PW4/A, the 9 accused ejaculated upon her top. The said top was sent for FSL examination but no semen stains were found upon it. Hence, the medical evidence on record has not corroborated the version of the victim.
The question which may arise as to why the victim deposed in the manner as she did. The defence taken by the accused was that he was beaten up by PW-1 and other all of a sudden when he opened the door of his house and when he sustained severe injuries then he was falsely implicated in this case. The observations made by the Hon’ble Apex Court in Radhu Vs. State of MP (2007) 12 SCC 57, are quite apt to the facts of the present case. It was observed that “however, courts should, at the same time, bear in mind that false charges of rape are not uncommon, and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of the financial liability”. Similarly, in Dinesh Jaiswal Vs. State of MP 2010 (2) RCR (Criminal) 139 SC, it was observed that “it cannot be held that a prosecutrix must be believed irrespective of the improbabilities in her story. She should be believed if story put forward by her prima facie inspired confidence”.
Thus, considering the entirety of the facts and circumstances of the case, the material improvements and contradictions appearing in the testimony of PW-1 and PW-4, lack of proper identification of the accused by the victim before the Court and no recovery from the accused of any nature, all go in favour of the accused and it can be safely held that the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accordingly, accused Imran is acquitted of the offences punishable under Section 457/382/354-B/506(II)/376(2)(i) IPC and Section 6 of the POCSO Act. He be set at liberty. File be consigned to the Record Room after completion of due formalities.
PRONOUNCED IN OPEN COURT ON 6th day of April 2017
(Sanjay Sharma-I) Judge Special Court (POCSO Act),
Addl. Sessions Judge-01 (NE) Karkardooma Courts, Delhi