Court: Delhi District Court
Bench: JUSTICE VINOD YADAV
State V/s Shailender @ Salen @ Sailu On 13 May 1994
Law Point: prosecution has miserably failed in proving charges against the accused beyond any reasonable shadow of doubt. Accused stands acquitted of the charges.
JUDGEMENT
BRIEF FACTS OF THE CASE:
The facts of the case, as borne out from the record are that on 15.12.2013, at about 10.10 PM, DD No.42A was recorded in PS Maurya Enclave, which was regarding eve teasing with the daughter of caller, at Jhuggi No.A41, G.P Block, Pitampura. The said DD was marked to SI Kanhiya Lal, who on receipt of the same reached at the spot, i.e Jhuggi U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 1 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 No.A41, G.P Block, Pitampura alongwith Ct.Kapil. At the spot, SI Kanhiya Lal met Shri Chunni Lal, his wife Smt.Laxmi and their daughter V, who at that time were not ready to give their statement(s). Thereafter, at about 11.30 PM said Shri Chunni Lal alongwith his wife Smt.Laxmi and daughter V came to PS, where SI Kanhiya Lal recorded the statement of girl V, aged about 14 years (hereinafter referred to as “child victim”), who in her statement stated that at about 8.00 PM, after serving food to her parents, she had gone upstairs to lock the gate. Suddenly, the accused came there, who did not allow her to lock the gate and caught hold of her hand and tried to drag her inside. She got frightened and raised an alarm. On hearing her screams, her father came upstairs and apprehended the accused. She further stated that she did not want her medical examination to be conducted in the case.
2. On the basis of aforesaid statement, SI Kanhiya Lal prepared rukka and case FIR in the matter was registered. Thereafter, he prepared site plan. During the course of investigation, on 19.12.2013, IO SI Kanhiya Lal got recorded the statement of child victim U/s 164 Cr.P.C and collected her age proof. Since the child victim had stated in her statement recorded U/s 164 Cr.P.C that by mistake the accused had caught hold of her hand, IO did not arrest the accused and instead served a notice U/s 41A Cr.P.C to him and after completion of investigation filed the chargesheet in the matter. U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 2 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015
3. After filing of the chargesheet in the matter, copy thereof alongwith documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 01.12.2014, charges U/s 7 of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), punishable U/s 8 of POCSO Act r/w Section 342/354 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove the charges against the accused, prosecution examined as many as eight witnesses, whereafter PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the present case by the police. Though, he admitted the factum of holding the hand of child victim, but he stated that he had done so to stop the child victim from closing the door of roof, otherwise he would have remained on roof for the entire night. To strengthen his aforesaid defence, he has referred to the statement of child victim recorded U/s 164 Cr.P.C by the Ld.MM, to which I will advert to a little later. However, the accused did not lead any evidence in defence in support of his aforesaid contention.
5. I have heard arguments advanced at bar by the Ld.Addl.PP on behalf of State and Shri Rajnish Kumar Antil, Ld. Proxy Counsel appointed by the Bar and perused the entire material on record. Before adverting to the U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 3 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which can be broadly classified into the following categories:
(a) The evidence of child victim and her family members;
(b) The evidence w.r.t the age of child victim;
(c) The evidence of formal witnesses and;
(d) The evidence of police officials of investigation.
Evidence of child victim V and her family members:
6. In this category we have the evidence of Shri Chunni Lal, father of child victim, who has been examined as PW4; Smt.Laxmi, mother of child victim, who has been examined as PW5; and evidence of child victim, who has been examined as PW6 in the matter.
7. PW4, Shri Chunnu Lal, father of “child victim” in his evidence has stated that on 15.12.2013 his neighbour, i.e accused Selu @ Shailender had come on the roof of his jhuggi for connecting the electricity wire of his jhuggi as the light was not there in his house. At that time, child victim had gone to the room on second floor and when she was closing the door of room, accused did not let her to close the door of jhuggi and on objection being raised by child victim, accused caught hold of her hand and dragged her towards him with bad intention. On hearing her screams, he went upstairs and had a quarrel with accused, who abused him also. He further stated that U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 4 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 thereafter, he called the police at 100 number, on which accused ran away from there. Accused was under the influence of liquor at that time. He further stated that thereafter police reached at the spot and statement of child victim was recorded in the PS. In his crossexamination, he stated that at the time of incident, accused was under the influence of liquor, but surprisingly he admitted that nothing wrong had happened with the child victim.
8. PW5, Smt.Laxmi, the mother of child victim in her evidence has stated that accused had come on the roof of her jhuggi to connect the electricity wire of his jhuggi, but interestingly she expressed her ignorance about the incident in question as she was present downstairs at that time. She further went on to state, “due to some misunderstanding, her husband had called the police and now they do not want any action against the accused as he had done nothing wrong with the child victim”. This witness was declared hostile by the prosecution and was thoroughly crossexamined by the Ld.Addl.PP. In her crossexamination, she was even confronted by the Ld.Addl.PP with her statement recorded U/s 161 Cr.P.C, but this witness stood to her guns and stated that accused had done nothing wrong with her daughter.
U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 5 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015
9. PW6, child victim, the star witness of prosecution case in her evidence has deposed as under:
xxxxx On 15.12.2013, at about 8.00 PM, accused Selu @ Shailender, who was residing in my neighbourhood came to connect the electricity wire from the pole from the roof of my jhuggi. I had gone on the second floor of my jhuggi to close the gate of the roof and when I was closing the gate, accused came and did not let me to close the door and he caught hold of me from my hand and started pushing me towards him (galat tarike se mere haath khinche laga).
Q. Beta, galat tarike se aapka kya matlab hai?
A. Because accused caught me by holding my
hand and I thought it to be wrong way of holding
(meine usse galat tarike se haath pakadna samjha).
Accused was under the influence of liquor at that time. I raised alarm.
Q. Why did you raise alarm?
A. Because the accused had tightly caught hold of my hand (kyunki inhone hamara haath jor se pakada hua tha aur chod nahi rahe the).
On hearing my noise, my father came upstairs on the roof and a quarrel between my father and accused took place. Accused abused my father. My father called at 100 number. Police reached and we went to the PS. In the PS we lodged a report vide my statement before the police.
xxxxx U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 6 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 This witness has further proved her statement recorded U/s 164 Cr.P.C by the Ld.MM as Ex.PW6/C and duly identified her signatures thereupon at pt.A.
In her crossexamination by the learned defence counsel, this witness stated that due to darkness, accused had caught hold of her hand by mistake and he was not having any sexual intent at that time.
This witness was thereafter reexamined by the Ld.Addl.PP pursuant to the permission of the court. In her reexamination by the Ld.Addl.PP this witness categorically stated that her statement recorded by the police is not correct.
10. Evidence w.r.t the age of child victim:
PW3, Smt.Rama Beniwal, Incharge, MCD Nigam School, SP Block, Pitampura in her evidence has stated that child victim was admitted in their school in first class on the basis of Admission Form and Affidavit, submitted by Smt.Laxmi, mother of child victim, wherein the DOB of child victim has been mentioned as 03.07.1996, meaning thereby that at the time of alleged incident, child victim was aged about 17 years and five months. Though, in crossexamination suggestions were given to this witness that no independent inquiry was conducted by the school to verify the DOB of child victim, however, the defence has not seriously disputed the age of child victim.
U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 7 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 Evidence of formal witnesses:
11. PW1, HC Suresh Kumar was lying posted as Duty Officer at the relevant time in PS Maurya Enclave and he has proved the recording of case FIR in the matter as Ex.PW1/B and making endorsement on rukka as Ex.PW1/C.
12. PW8, Shri Bhupinder Singh, the then Ld.MM in his evidence has proved the statement of child victim recorded by him U/s 164 Cr.P.C as Ex.PW6/C.
Evidence of police officials of investigation:
13. In this category, we have the evidence of PW2 Ct.Kapil and PW7 SI Kanhiya Lal. PW2, Ct.Kapil in his evidence has stated that on 15.12.2013, on receipt of DD No.42A by SI Kanhiya Lal, he alongwith him reached at Jhuggi A41, GP Block, Pitampura, where they met Shri Chunni Lal (PW4), his wife and daughter. As there was no light in the area, all of them were brought to PS, where SI Kanhiya Lal recorded the statement of child victim, prepared rukka and he got the case FIR registered and thereafter handed over the same to IO.
14. PW7, SI Kanhiya Lal, the IO of the case in his evidence has deposed on the lines of PW2 and has further stated that after registration of FIR he prepared site plan (Ex.PW6/B) and got recorded the statement of child victim U/s 164 Cr.P.C (Ex.PW7/C). He further stated that since the child U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 8 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 victim in her statement recorded U/s 164 Cr.P.C had deposed that the accused had caught hold of her hand by mistaken, so he did not arrest the accused and instead served him a notice U/s 41A Cr.P.C and during investigation collected the age proof qua the child victim visavis PCR form (Ex.PW7/G).
15. This is all as far as prosecution evidence in the matter is concerned.
16. In his statement recorded U/s 313 Cr.P.C, the accused claimed himself to be innocent and stated that he has been falsely implicated by the police in the present case. He stated that he had caught hold of the hand of child victim just to stop her from closing the door of roof, otherwise he would have remained on the roof for the whole night and he had no “wrong intention” therein. To support his aforesaid line of defence, he has put strong emphasis upon the statement of child victim recorded U/s 164 Cr.P.C by the Ld.MM (Ex.PW6/C).
17. Since, today the lawyers are abstaining from appearing in courts, I have heard final arguments advanced at bar by Shri Rajnish Kumar Antil, Ld. Proxy Counsel appointed by the bar for the accused. He has argued that all the material witnesses in the case, i.e PW4 Shri Chunni Lal (father of child victim), PW5 Smt.Laxmi (mother of child victim) and PW6 child victim have not supported the case of prosecution in material particulars and U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 9 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 thus there is nothing incriminating against the accused to convict him for the offences involved in this case. To support his aforesaid argument, he has heavily emphasized upon the statement of child victim recorded U/s 164 Cr.P.C (Ex.PW6/C) by the Ld.MM.
18. On the other hand, Ld.Addl.PP has argued that the investigation carried out in the matter is fair and proper and thus accused is liable for conviction.
19. I have given thoughtful consideration to the arguments advanced at bar. I find substance in the argument of learned proxy counsel for the accused. PW4 Shri Chunni Lal, father of child victim and PW5 Smt.Laxmi, mother of child victim have not supported the case of prosecution. They both have stated that they do not want any action against the accused as he had not done anything wrong with their daughter, i.e the child victim. PW5 was even declared “hostile” and crossexamined by the Ld.Addl.PP. She was even confronted with her statement Mark X (recorded U/s 161 Cr.P.C) by the Ld.Addl.PP, but she stood firm to her version and stated that accused had done nothing wrong with her daughter.
20. Now, let us see as to what the child victim V has stated in her statement recorded U/s 164 Cr.P.C before the Ld.MM (Ex.PW6/C). She has categorically stated that on 15.12.2013 at about 8.00 PM, she was present on U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 10 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 the roof of her jhuggi, when accused Sailu had come there to join the electricity wire and by mistake he caught hold of her hand. She further stated that her father saw that and he inadvertently made a call to the police on number 100. At that time, the accused was drunk. She categorically stated that at that time accused had asked her to get the torch, but inadvertently he caught hold of her hand.
21. If the complaint/statement of child victim Ex.PW6/A and her statement recorded U/s 164 Cr.P.C are considered conjointly, then it is seen that she has dramatically changed her version and in this scenario, it would be highly unsafe to convict the accused on the basis of statement Ex.PW6/A. In case reported as, “Delhi (2012) 8 SCC 21”, titled as, “Rai Sandeep @ Deepu V/s State of NCT of Delhi”, the Hon’ble Supreme Court has been pleased to observe as under:
xxxxx “22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely at the time when U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 11 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurence, the persons involved, as well as, the sequence of it. Such a version should have co relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the U/s 7 & 8 of POCSO Act r/w Section 342/354 IPC: “Acquitted” Page 12 of 13 SC No.79/2014:FIR No.482/2013:PS Maurya Enclave: State V/s Shailender @ Salen DOD: 11.05.2015 core version to sieve the other supporting materials for holding the offender guilty of the charge alleged”.
xxxxx (emphasis supplied) Therefore, the testimony of “child victim” in the present matter does not pass the test of credibility.
22. In this view of the matter, prosecution has miserably failed in proving charges against the accused Shailender @ Salen @ Sailu beyond any reasonable shadow of doubt. Accused Sailender @ Salen @ Sailu accordingly stands acquitted of the charges in the case. Let Bail Bond U/s 437A Cr.P.C be furnished by the accused. At this stage, Bail Bond U/s 437 A Cr.P.C furnished by the accused, same is accepted in accordance with law.
23. File be consigned to Record Room.
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