Delhi High Court
State vs Shamshuddin on 10 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 10th September, 2018
+ CRL.L.P. 572/2017 and Crl.M.A. No. 16314/17 (delay)
STATE ..... Petitioner
Represented by: Mr. Ashok K. Garg, APP for
the State with SI Uday Singh,
PS Bawana
versus
SHAMSHUDDIN ..... Respondent
Represented by: Ms. Abhik Kumar, Advocate
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. Aggrieved by the judgment dated 25th April, 2017 whereby the
learned Additional Sessions Judge acquitted the respondent Shamshuddin
for the offences punishable under Sections 363/354A IPC and Section 10 of
Protection of Children from Sexual Offences Act (in short POCSO Act), the
State has preferred the present leave petition.
2. Police machinery was set into motion on receipt of information
regarding attempt to assault on a 9 year old girl. Aforesaid information was
recorded vide DD No. 30/PP (Ex.PW-10/A). Statement of the mother of the
victim/complainant was recorded wherein she alleged that on 2nd September,
2013 at about 8:00 P.M., she had sent the victim along with her son to Dal
Mill, Sector 2, DSIIDC, Bawana to Shashuddin's sugarcane shop to collect
sugarcane waste for burning. After about 10-15 minutes, tea vendor Suresh
came along with the victim and told her that Shamshuddin took victim to a
vacant plot for committing wrong act and the victim came running shouting
from there. Public persons have beaten Shamshuddin. Before this,
complainant's son had also come to her and told her that Shamshuddin
caught hold of victim's hand and took her to a vacant plot behind heap of
soil, she shouted and came back running from there. On the basis of the
aforesaid statement, FIR No. 353/2013 (Ex.PW-9/A) was registered for the
offences punishable under Sections 354A/363 IPC and Section 8 POCSO
Act at PS Bawana.
3. During the course of investigation, Shamshuddin was arrested vide
Ex.PW-4/B, his personal search was conducted vide Ex.PW-11/A and his
disclosure statement was recorded vide Ex.PW-11/B. Site plan was
prepared vide Ex.PW-14/A. Statement of the victim was recorded under
Section 164 Cr.P.C. vide Ex.PW-3/A. After the completion of investigation,
charge-sheet was filed. Charge was framed for offences punishable under
Sections 363/354A IPC and Section 10 POCSO Act against Shamshuddin.
4. Sajjan Kumar (PW-2), Teacher and Anita Sharma (PW-3), Principal
from the school, proved the date of birth of the victim as 6th December, 2003
vide school record Ex.PW-1/A to D and Ex.PW-2/A and B respectively.
5. Victim (PW-3) deposed that when she along with her brother had
gone to the sugarcane juice shop of Shamshuddin to collect the waste of
sugarcane, Shamshuddin forcefully took her near the heap of soil near his
shop. He had not done anything wrong with her. She managed to escape
from there by releasing her hand from the clutches of Shamshuddin. She
further stated that she used to go to the shop of Shamshuddin for picking
waste of sugarcane and Shamshuddin used to give her Rs.10/- whenever she
visited his shop.
6. Shamshuddin in his statement recorded under Section 313 Cr.P.C.
stated that the victim had come to his sugarcane juice shop and without
asking him, she started collecting sugarcane waste. When he told her not to
collect the waste, she did not pay heed to his instruction, as a result of
which, he slapped her. Victim got agitated on this account, brought her
family members and falsely implicated him in the present case.
7. Shan Mohammed was examined as DW-1 who deposed that
Shamshuddin used to sell sugarcane from a rehdi which was at a distance of
10 feet from his rehdi. On the date of the incident, a girl came for picking
sugarcane waste from the rehdi of Shamshuddin but Shamshuddin scolded
her and kept the jute bag brought by her. Upon this, the girl went home and
called her mother and thereafter, the girl and her mother started leveling
allegations against Shamshuddin. Mother of the victim and public persons
gathered there and started beating Shamshuddin. When he intervened, he
was also beaten up by the public.
8. On perusal of the evidence on record, it is clearly evident from the
statement of the victim recorded under Section 164 Cr.P.C. and her
testimony that she had not leveled any allegation against Shamshuddin of
committing sexual assault on her. She only stated that he took her towards
the heap of soil but she managed to escape when he wanted to commit
wrong act upon her. Thus, the ingredients of Section 10 POCSO Act are not
attracted in the present case.
9. With respect to the allegations of kidnapping, victim deposed that she
was taken to the heap of soil which was near the juice shop, at a distance of
about 20 feet. Victim also admitted that there were many shops situated near
the sugarcane juice shop. Thus, it cannot be said that Shamshuddin took her
to an isolated place far away from the locality. The intent of Shamshuddin
in taking away victim out of keeping of lawful guardianship of her parents
has not been proved. Furthermore, defence taken by Shamshuddin seems
probable that when he stopped the victim from collecting sugarcane waste
and slapped her, she went home, her family came and a quarrel ensued
between them, resulting in the registration of the case.
10. View expressed by the learned Additional Sessions Judge based on
the evidence on record is a plausible view. Hence, the impugned judgment
acquitting the respondent cannot be said to be perverse warranting
interference of this Court.
11. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 10, 2018
'rk'
