IN THE COURT OF LD.

ADDITIONAL SESSIONS JUDGE, NORTH

EAST, KARKARDOOMA, NEW DELHI

SESSIONS CASE NO. 237 OF 2017

IN THE MATTER OF:

STATE …..PROSECUTION

VERSUS

BISHAMBHAR DAYAL @ BABA ….RESPONDENT

FIR No. 267/2017

U/s. 376 IPC/ 4 POCSO

PS-Khajuri Khas

INDEX

Sr. No. PARTICULARS Pg. No.

1 Written Submissions on behalf of the the
accused/respondent

THROUGH

Place: New Delhi (Rajeev Ranjan/Manu Tripurari)

Date: .02.2023 K-1, 2 nd Floor, (Commercial

Complex)

Birbal Road, Jungpura

Extension,

New Delhi-110014
 Mob. No: +91 9097767780

E-mail:- rjvranjan53@gmail.com

IN THE COURT OF LD. ADDITIONAL SESSIONS JUDGE, NORTH

EAST, KARKARDOOMA, NEW DELHI

SESSIONS CASE NO. 237 OF 2017

IN THE MATTER OF:

STATE …..PROSECUTION

VERSUS

BISHAMBHAR DAYAL @ BABA ….RESPONDENT

FIR No. 267/2017

U/s. 376 IPC/ 4 POCSO

PS-Khajuri Khas

Written Submissions on behalf of the accused/respondent

MOST RESPECTFULLY SHOWETH:

1. It is humbly submitted that the present accused has been falsely

incriminated in the present case emanating from the FIR No. 267 of 2017
in light of the existing money dispute between the accused and the
parents of the complainant, material improvements made at each stage of
the proceedings, material inconsistencies in the statements of the
Prosecution witnesses, and medical report. Further, it is pertinent to
mention that the accused has also been incriminated in the FIR No. 268 of
2017 which has been registered on the same date and has exactly similar
set of facts. The various inconsistencies and similarities in both the FIRs
 make it amply apparent that the accused has been implicated in the
present case out of personal vendetta.
2. The inconsistencies/contradictions in the statements given in FIR and
U/s. 164 are reproduced below:
STATEMENT OF PROSECUTRIX IN FIR U/S. 154 DT. 09.06.2017
The complainant in her statement U/s. 154 states that 6-7 days back at
8:30 am in the morning she went to buy milk and the accused had called
her inside his shop, moved his hand over her chest and put his fingers in
her vagina. He had done this, three or four times.

STATEMENT OF PROSECUTRIX IN FIR U/S. 164 DT 22.06.2017

The complainant in her statement U/s. 164 states that she does not
remember the date and that she was playing in the field. Further, she
states that the accused called her inside his shop, kept his hands on her
chest, and inserted his hands inside her undergarments and then her
vagina.

STATEMENT OF THE OF PROSECUTRIX IN CROSS-EXAMINATION

The complainant states that my father would buy things on credit from
Bishambher. Further, she states that Bishambher had asked me to tell my
father that a lot of money was due on him and I should tell him to pay the
money. Further, she states that she had gone to buy Ghari soap. Further,
the complainant admits that her mother and father had a quarrel with the
accused when he demanded money. Further, she admits that her mother
has said that Bishambher should be taught a lesson for refusing credit.
 STATEMENT OF THE MOTHER OF THE PROSECUTRIX IN
EXAMINATION IN CHIEF AND CROSS-EXAMINATION DT 04.07.2018

She is arrayed as PW-4 and states that she told her daughter to bring milk
packet in evening time. Further, she states that she had not informed the
Police but had informed the Locals. Further, she states that on
09.06.2017/10.06.2017 one neighbour namely Neetu (mother of the
prosecutrix in FIR No. 268/2017) came to her and that she had told her
about the wrong acts of the accused with her daughter and that the same
has been done to her daughter. Further, she had stated that she had refuse
medical examination because the had show her big machines.

Further, it is an admitted fact by the mother of the prosecutrix that

she had made another call against another person stating that he
tried to force himself upon her daughter.

3. On careful perusal of the statements, the inconsistencies become glaringly

apparent. It is submitted that there is inconsistency about the time of
occurrence as the complainant states that it happened in the morning
and her mother states that it happened in the evening. Further, the place
of occurrence is also under contest as the complainant in her statement
U/s. 154 mentions about the incident happening at the shop of the
accused whereas in her statement U/s. 164 she states that she was
playing in the field and was subsequently grabbed by the complainant.
Further, inconsistency is apparent when the complainant submits that she
went to buy Ghari Soap from the shop of the accused which clearly is a
clear detour from her earlier statement and is apparently similar to the
 statement of the prosecutrix in FIR No. 268 of 2017 where she states that
she had gone to buy Ghari soap.

That it is submitted that in light of the above, it is clearly established that

the complainant has been tutored and the complaint has been filed in
connivance with the mother of the other prosecutrix on false and
fabricated grounds to teach the accused a lesson when he denied to give
provisions on credit to the parents of the complainant.

IRREGULARITY IN MLC
4. It is further submitted that the mother of the prosecutrix refused the
medical examination of the victim and the MLC which has been
submitted is highly questionable prima facie. Inter alia the MLC is dated
09.07.2016 whereas the incident is said to have been reported in 2017.
Further, the MLC is prepared in both the FIRs at the same time which
renders the credibility of the MLC questionable and is an apparent
procedural irregularity.

EXISTENCE OF DISPUTE REGARDING CREDIT

5. In light of the above factual scenario, it is submitted that the accused is a
Shopkeeper in the said locality and has been running his shop for a long
time. There are two FIRs which have been filed against the accused and
the alleged date of the incident is not known. Further, the accused used to
advance provisions to the parents of the complainants on the basis of
credit following which when the demand for such credit was denied by
the accused on one occasion and when he demanded his dues; the mother
of the complainant in the FIR No. 268 of 2017 had quarrel with the
accused following which she along with the mother of the complainant in
 FIR no. 267 of 2017 connived to implicate the present accused with
malafide intention by lodging FIR with premeditation.
NO CIRCUMSTANTIAL OR DIRECT EVIDENCE
6. That there is no evidence to incriminate the accused in the present case as
the mother of the complainant did not agree for the medical examination
of the complainant and no circumstantial evidence are placed on record to
show that the prosecutrix was present went to the shop of the said
accused. Further, the statement of the complainant is contradictory in
itself and the statement of the mother of the complainant is inconsistent
with the statement of the complainant as well.

7. Inter alia it is pertinent to mention that while considering the

circumstantial evidence following case law assumes importance; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116,
Hon'ble Apex Court has laid down five golden principles as under which
constitute the "panchsheel" in respect of a case based on circumstantial
evidence.

"(1) the circumstances from which the conclusion of guilt is to be drawn

or should be and not merely ''may be '' fully established. (2) the facts so
established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty, (3) the circumstances should
be of a conclusive nature and tendency, (4) they should exclude every
possible hypothesis except the one to be proved, and (5) there must be a
chain of evidence so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the accused and must
 show that in all human probability the act must have been done by
the accused''.

8. That in the present case there is no circumstantial evidence however if for

the sake of argument it is assumed that there is circumstantial evidence
the same is not able to satisfy the above test and therefore cannot be
considered.
THE COMPLAINANT HAS BEEN TUTORED
9. Further, it is submitted that the complainant in the present case in her
cross examination has stated that she went to buy Ghari Soap which is the
story of the complainant in the FIR No. 268 of 2017. In light of this, it
becomes glaringly apparent that the complainant has been tutored.

EXISTENCE OF QUARELL OVER MONEY

10.More so, it is submitted that the investigation conducted by police does
not reveal any incriminating material against the accused. On the
contrary, it has been stated by the IO in her statement that she had
received information that there was a quarrel between the mother of the
complainant in FIR No 268 of 2017 with respect to money two or three
days prior.

CONCLUSION

In light of the aforesaid submissions, it is the case of the defence that the
accused is a shopkeeper who used to run his shop in the said locality and
used to advance provision on cash and credit basis. Further, the parents of
the complainants used to buy provisions from his shop on cash and credit
basis. When the accused demanded his dues from the complainant, the
accused was falsely implicated with prior planning and connivance. It is
pertinent to mention that both the FIRs have been lodged at the same time
 though the date of the incident is different. Further, the place of occurrence
is also under contradiction. The statement of the prosecutrix cannot be relied
upon being contradictory in nature. Further, there are no eye-witnesses to the
said incidents and there is no direct or circumstantial evidence placed on
record to show the complicity of the accused in the present case.

Therefore, in the present case where there is no direct or circumstantial

evidence and there are several contradictions apparent in the story of the
prosecution, the accused has successfully discharged the burden of proof
with respect to the sections under which the said accused is said to have been
charged with.

ACCUSED

THROUGH

Place: New Delhi (Rajeev Ranjan/Manu Tripurari)

Date: .01.2023 K-1, 2 nd Floor, (Commercial

Complex)

Birbal Road, Jungpura Extension,

New Delhi-110014

Mob. No: +91 9097767780

E-mail:- rjvranjan53@gmail.com