MS. SP v. STATE (NCT OF DELHI) & ANR

1. Petitioner has approached this Court challenging the Orders dated 11.11.2021 & 28.03.2022, passed by the learned ASJ (FTSC)(POCSO), Rohini Courts, in Sessions Case No.64/2019. Vide Order dated 11.11.2021 the Accused/Respondent No.2 has admitted the genuineness of certain documents which were put to him under Section 294 Cr.P.C and vide Order dated 28.03.2022, the Trial Court has dismissed an application under Section 311 Cr.P.C., filed by the State for recall of PW-A and PW-V.

2. The facts, in brief, leading to the present Petition, are that the FIR No.959/2018, dated 18.12.2018, was registered at Police Station Samaipur Badli, for offences under Sections 347/354D/506 IPC and Section 6 of the POCSO Act against the Respondent No.2 herein on the complaint of the Petitioner herein wherein she stated that she is 16 years old and is studying in 12th Standard in Government Senior Secondary Girls' School. In the complaint, the Petitioner herein further stated that she know Respondent No.2 for the last 12-13 years and he used to teach her and other students in a coaching centre called Gen-X Computer and Education Point. It is stated that the Respondent No.2 was the tutor of the Petitioner herein from 9th standard and he used to teach her Maths. The FIR further reveals that Respondent No.2 used to do engage in sexual misconduct with the Petitioner herein/Complainant by doing obscene acts with her and showing pornographic material to her. It is stated that the Respondent No.2/Accused used to stop the Complainant/Petitioner at the coaching centre after classes under the garb of giving extra classes and then he used to sexually abuse the Petitioner/Complainant. It is stated that the Accused/Respondent No.2 took advantage of the complainant's family problems to manipulate her. It is stated that the abuse escalated to physical and sexual assault, including forced sex, threats, and blackmail. It is further stated that the complainant was unable to confide in anyone due to fear and shame. It is stated that the Complainant disclosed the abuse to her sister and the present FIR was registered.

3. After registration of FIR, investigation was conducted and the Petitioner was sent to judicial custody on 18.12.2018. During investigation statements of three students, namely, student “K”, “A” and “V”, were recorded under Section 161 Cr.P.C. In their statements the students have stated that the Petitioner herein/Complainant used to take tuitions with them at Gex-X Coaching Centre. In the statements it is stated that the Respondent No.2/Accused used to ask the Petitioner herein/Complainant to stay back for studies. In the statement of “K” it is stated that the Accused used to make the Complainant stay for further studies while other students used to leave while “A” in her statement has stated that all the students used to leave together after the classes.

4. On 11.11.2021, statements given by “A” and “V” under Section 161 Cr.P.C were put to the Respondent No.2/Accused under Section 294 Cr.P.C and the Respondent No.2/Accused has admitted the said statements. An application for recall of PW-A and PW-V was filed by the State and the same was dismissed vide Order dated 28.03.2022. State has chosen not to challenge the said Order. However, the Complainant, i.e the Petitioner herein has challenged the said Order by filing the present Petition.

5. In the present Petition Notice was issued on 08.08.2022 and pleadings are complete.

6. It is stated by the learned Counsel for the Petitioner that the fact that the Accused has admitted the statements given by “A” and “V” under Section 161 Cr.P.C are of no consequence because the statements given to the Police Officer are not admissible in evidence. The learned Counsel, therefore, states that these statements could not have been put to the accused at all. The learned Counsel also states that these statements have to be pressed in Court and, therefore, the examination of PW-A and PW-V is essential.

7. Per contra, learned Counsel appearing for the Accused states that the Petitioner has admitted the fact that the Complainant was studying in the coaching centre and the purport of the statements given by PW-A and PW-V was only for proving the fact that the Petitioner herein used to attend the coaching classes along with her friends. He states that other than stating that PW-A and PW-V also used to attend classes with the Petitioner herein, there is nothing in the statement given by PW-A and PW-V.

8. In the opinion of this Court, the Order refusing to recall PW-A and PW-V does not require any interference.

9. Section 311 of the Cr.P.C gives power to the Court to summon material witnesses when it appears to the Court that it is essential to the just decision of the case. This Court has perused the statements given by “A” & “V” under Section 161 Cr.P.C. In her statement PW-A has stated that she is a student of class 12th and she takes tuitions at Gen-X coaching centre along with the Petitioner herein and other friends. PW-A stated that all of them used to study together and used to leave for home together and she does not know anything more than that. On the other hand PW-V in her statement has stated that she is a student of 9th standard and the Petitioner herein, i.e. the Complainant, and the sister of PW-V study in the same class in Govt. Girls Senior Secondary School. It is further stated in the statement that the Petitioner herein also studies in tuition at Gen-X along with PW-V and others and she does not know anything more about it.

10. Undoubtedly, the fact that the Accused has admitted the statements given by “A” and “V” under Section 161 Cr.P.C does not mean that the said statements would become a part of evidence. Learned Counsel for the Petitioner is correct to this extent. However, material on record shows that apart from the statements given by “A” and “V” there are other witnesses who have deposed the fact that the Petitioner herein used to attend Gen-X coaching centre and that the Accused herein is a tutor in the coaching centre. Further, the Accused has admitted this fact and as rightly pointed out by the Trial Court, Section 58 of the Evidence Act postulates that a fact which is admitted need not be proved.

11. In view of the admission of the fact that the Petitioner was a student at Gen-X and the Accused used to teach her, nothing remains to be proved by recalling PW-A and PW-V. In any event, these two witnesses cannot be used for any other purpose other than showing that the victim used to go to Gen-X coaching centre which is otherwise an admitted fact given under Section 161 CrPC. Had PW-A & PW-V stated something more in their statement under Section 161 CPC, things would have been different and this Court would have set aside the order.

12. In view of the above, this Court does not find any infirmity with the Order passed by the Trial Court warranting interference by this Court.

13. Accordingly, the Petition is dismissed, along with the pending applications, if any.

SUBRAMONIUM PRASAD, J SEPTEMBER 5, 2024