Delhi District Court
State vs . Gian Chand @ Rakesh on 15 September, 2016
IN THE COURT OF SH. SUNIL KUMAR, MM-03,
NORTH DISTRICT, ROHINI COURT, DELHI
UID No. 02401R0688962003
FIR No. 512/2003
PS: JAHANGIR PURI
U/S: 342/377/506 IPC
STATE Vs. GIAN CHAND @ RAKESH
JUDGMENT
Sr. no. of the case :264/2/03 Date of commission of offence :12.08.2003
Date of institution of the case :08.10.2003
Name of the complainant :Master Raju
Name of accused and address :Gyan Chand @
Rakesh S/o Late Sh. Satpal
R/o H. No.505,
Jahangir Puri,
Delhi.
Offence complained of or proved :U/s 342/377/506 IPC Plea of the accused :Pleaded not guilty Final Order :Conviction Date of judgment :08.03.2016
********************************************************* STATEMENT OF THE REASONS FOR THE DECISION :-
The story of the prosecution in brief is that on 12.08.2003 at about 3:00pm at house no. G-505, Jahangir Puri, Delhi, within the jurisdiction of PS Jahangir Puri, Delhi, accused Gyan Chand @ Rakesh wrongfully confined one Raju S/o Sh. Rampal and voluntarily had carnal intercourse against the order of nature with him and also criminally intimidated him to cause his death. According to the prosecution, the accused thus committed offences punishable U/s 342/377/506 IPC.
FIR No.512/03, PS Jahangir Puri Page 1 of 142. On the said police report my learned Predecessor having taken cognizance of the offence, proceeded against the accused and in compliance of the provisions of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C) supplied copies of the police report and other documents sent along with the same to the accused.
3. Subsequently, on 29.10.2003 after hearing Assistant Public Prosecutor (APP) and the accused a formal charge was framed whereby the accused was charged with the commission of offences punishable under section 342/377/506 IPC. The charge was read over and explained to the accused to which he did not plead guilty and claimed trial.
4. In support of its case, the prosecution has examined nine witnesses out of total eleven witnesses as cited in the list of witnesses.
5. PW-1 Master Raju, who is the victim/complainant in this case, was summoned as prosecution witness on 21.01.2004. On that day after preliminary examination court found him competent witness u/s 118 of Evidence Act, 1872. On that day, PW1 Master Raju deposed that nothing has happened with him and does not know accused. On that day, Ld. Predecessor observed that PW1 was appearing to be terrified and at that time his father was also present. His father shouted in the court during examination of PW1 that had forgiven the accused. Ld. Predecessor felt something FIR No.512/03, PS Jahangir Puri Page 2 of 14 fishy and found PW1 to be tutored not to give statement against the accused. In that circumstances, Ld. Predecessor adjourned the examination of PW1. PW1 was again summoned as PW on 07.03.2007 and he deposed that on 12.08.2003 he went to take bhutta from near Kushal Cinema. That near Kushal Cinema, one young boy met me and told me to bring milk. That when he bought milk for him, that boy took him to house no.505 and closed the door from inside and committed carnal intercourse with him and when he cried, said boy closed his mouth with a cloth and threatened him to kill. That thereafter victim came out of the said room. That the name of the said boy was Rakesh and he do not know him earlier. That thereafter, he went to his home and narrated the entire incident to him and his father took him to the police station, where his statement Ex.PW1/A was recorded. That police took him to the hospital where he was medically examined. He proved the arrest and personal search memo of the accused as Ex.PW1/B and Ex.PW1/C. The witness deposed that due to lapse of 3-4 years he was not able to identify the accused. This witness was cross-examined by Ld. Defence counsel. In his cross-examination PW1 stated that the accused was not the person, who committed carnal intercourse with him.
6. ASI Mohar Singh (PW2) was examined being the Duty Officer at the relevant time. This witness has recorded the present FIR as Ex.PW2/A and also made endorsement on the rukka as Ex.PW2/B. This witness was not cross- examined by Ld. Defence counsel despite giving an FIR No.512/03, PS Jahangir Puri Page 3 of 14 opportunity in this regard.
7. Sh. Rampal (PW3), who is the father of the victim, has deposed that he do not remember the date and month but 3-4 years back when his son was 8-9 years old, told him that one boy had committed carnal intercourse with him. That thereafter they searched for that that boy but in vein and ultimately a police complaint was lodged. Thereafter we came to know that police has arrested the accused. This witness was cross-examined by the Ld. APP for the State during his cross-examination he entirely denied the story of the prosecution and stated that he do not know the accused and that he committed any wrong with his son. This witness cross-examined by Ld. Defence counsel. In his cross examination PW-3 admitted that he was illiterate. He admitted in the cross examination that he got his son medically examined as he was suffering from fever. He further deposed that he did not know whether his son suffered any injury or bleeding due the offence. PW-3 further admitted that he had never seen the accused earlier. This witness was cross-examined by the Ld. Defence counsel wherein he stated that he has never seen the accused.
8. HC Jaipal Singh (PW4) has proved the proceedings conducted at the spot alongwith IO/ASI Dharambir. He took the rukka to the PS and got the present case registered. This witness was not cross-examined by Ld. Defence counsel despite giving an opportunity in this regard.
FIR No.512/03, PS Jahangir Puri Page 4 of 149. Ct. Jagjeet Singh (PW5) has deposited the sealed sample property to CFSL, Calcutta vide RC no.161/21 and handed over its receipt to the MHC(M). This witness was not cross-examined by Ld. Defence counsel despite giving an opportunity in this regard.
10. Smt. Phoolwati (PW6), who is the mother of the accused Gyanchand @ Rakesh, has deposed that she was residing with the accused and on the day of incident she had gone to her parental house on the occasion of Rakhi leaving her son at home. That she do not know what her son had done on that day. This witness was not cross- examined by Ld. Defence counsel despite giving an opportunity in this regard.
11. Dr. Neeraj Chaudhary (PW7), who was deputed to depose on the MLC no.12360 of patient Raju, has proved the said MLC as Ex.PW7/A. He also proved the MLC no.12373 of patient Rakesh as Ex.PW7/B. He further deposed that he is acquainted with the handwriting and signatures of doctors, who have prepared the abovesaid MLCs. This witness was cross-examined by Ld. Defence counsel in which he admitted that the MLC was not prepared in his presence or that the had not personal knowledge about the case.
12. ASI Dharamvir Singh-PW8 (wrongly numbered as PW7) being the IO of the case has proved the proceedings FIR No.512/03, PS Jahangir Puri Page 5 of 14 conducted at the spot and deposed that on 13.08.2003 he was on emergency duty and in the night one Rampal alongwith his son Raju aged about 10years came at the police station and told him that one Rakesh had committed unnatural offence with Raju. That on this information, he sent Raju alonwith Ct. Jaipal to BJRM Hospital for medical examination and in the meantime he received a further call from BJRM hospital. That later on he went to the BJRM hospital where he collected the MLC no.12360/03 of Raju wherein Doctor opined him fit for statement and also opined on the MLC the alleged history of sodomy. That he proved rukka as Ex.PW7/A, Site plan as Ex.PW7/B, sealed pullanda of blood sample of victim Raju and one pullanda of swab, one pullanda of undergarments of victim Raju and sample seal were taken into possession vide memo Ex.PW7/C & D. This witness was not cross-examined by the Ld. Defence counsel despite opportunity for the same.
13. Ct. Rakesh (PW9) has deposed that on 16.08.2003 he alongwith ASI Dharambir was present and in the meantimne a secret information was received by ASI Dharambir that absconded accused in this case would come near Kushal Cinema and at the pointing out of secret informer, accused present in the court was arrested. He has also proved the case property as Ex.P1 to P3. This witness was not cross-examined by the Ld. Defence counsel despite opportunity for the same.
14. HC Rishi Prakash (PW10) being the MHC(M) has FIR No.512/03, PS Jahangir Puri Page 6 of 14 deposed that ASI Dharambir deposited with him three pullandas and a sample in sealed condition with the seal and he entered the same in register no.19 at sr. no. 2984 and proved the same as Ex.PW10/A. That on 16.08.2003 ASI Dharambir has again deposited with him two pullanda and sample in sealed condition and he enter the same at sr. no.2996 vide Ex.PW10/B. That on 13.09.03 the abovesaid pullandas and samples were sent to CFSL, Calcutta through Ct. Jagjeet Singh vide RC no/161/21/03 at sr. no.2984. This witness was not cross-examined by the accused despite opportunity for the same.
15. The prosecution evidence was closed followed by examination of the accused under section 313 R/W 281 of Cr.P.C. wherein all the incriminating evidence was put to him. The accused have controverted and denied the allegations leveled against him stating that he is innocent and falsely implicated in the present case. The accused has opted to lead DE.
16. In order to substantiate his defence, accused examined Sarvan Kumar as DW-1, who has deposed that he knew the accused since last 20 years being neighbourer. Accused was of good moral character. There is no one to look after the accused as he was all alone in his family and he did not want to say anything else. In his cross- examination he stated that at the time of incident he was inside his home and he had come to the court with the accused.
FIR No.512/03, PS Jahangir Puri Page 7 of 1417. To prove the offence against the accused the prosecution needs to prove that:-
A. That the child PW-1 was wrongfully confined. B. That the unnatural sex was committed with PW-1.
C. That PW-1 was criminally threatened not to disclosed about the offence anyone. D. That it was the accused who committed the offences with PW-1.
18. I have heard arguments of the Ld. APP for the state as well as on behalf of the accused. It has been argued on behalf of the accused that both the material witnesses namely, PW1 and PW3, who are victim and complainant have turned hostile and have not supported the prosecution and on the basis of cumulative appreciation of their statements alongwith the statement of other prosecution witnesses, prosecution has failed to prove its case even beyond the probability of doubt. The statement of PW1 given during his re-examination cannot be taken into consideration as he has on earlier occasions has not given any such statement and during his re-examination he has deposed falsely. The prosecution case is full of doubts so, the accused deserves to be acquitted.
19. Ld. APP for the State argued that all the ingredients has been proved from the testimony of PW-1, PW-2, PW-6 and PW-7. PW-1 PW-2 and PW-6 are the material witnesses FIR No.512/03, PS Jahangir Puri Page 8 of 14 of the prosecution on whose testimony all prosecution case lie. PW-1 is the victim of offence of unnatural assault and his testimony be appreciated liberally being victim and child. Even though, PW4 has not supported the prosecution case but it is now established rule that even if the witness does not support the prosecution case and turned hostile, his statement can be relied upon by the prosecution to the extent to which it supports the prosecution case. Ld. APP for the state has relied upon the judgment of Hon'ble Supreme Court in case titled as Bhagwan Dass vs. State NCT of Delhi, AIR 2011 SC 1863. The statement of PW1 has further been corroborated with testimony of PW6 Dr. Neeraj Chaudhary, who has proved the MLC of victim and accused. Though PW6 was not the author of the MLCs of the victim and the accused but the said MLCs are duly proved by virtue of section 32 of Evidence Act as the said MLCs were prepared by the concerned doctors in discharge of their official duties but they could not be found to be examined in the court so, the MLCs are duly proved by PW6. In this regard, Ld. APP for the state has relied upon the judgment of Hon'ble High Court of Delhi titled as Dharam Singh vs. State, 2013 (2) JCC 835 Delhi.
20. On the careful analysis of the prosecution case and statement of the prosecution witnesses, I find that the testimony of PW-1 is credible and there is no embellishment or contradiction in his testimony. He has fully proved that how he was forcefully taken to his house by the accused where he committed carnal intercourse against his consent FIR No.512/03, PS Jahangir Puri Page 9 of 14 and PW-1 was criminally intimidated by the accused. He identified the accused in re-examination done on behalf of the prosecution u/s 311 Cr.PC on 29.04.2015. PW-1 was not cross examined after his re-examination on or after above said date.
Though PW-1 was a child aged about 12 years when he was first examined in the court on 21.01.2004 and the testimony of child must be appreciated by the court very cautiously but if the court finds the testimony of child cogent and credible then the conviction can be based only on the basis of testimony of the child. In this regard, I find support from the judgment of Hon'ble Supreme Court titled as State of Rajastan Vs. Chandgi Ram 2014 Cr.LJ 4571 SC in which the accused was convicted on the sole testimony of children 5 and 7 years of age.
21. Further, the complainant/victim/PW1 had explained each and every aspect of the incident took place with him in his examination-in-chief except the identity of the accused. From the manner in which he has deposed in his examination-in-chief. It is clear that he intentionally did not identify the accused. He was cross examined at length but nothing material came out of his cross examination to support the defence raised by the accused. During his cross-examination, the victim i.e. Master Raju (PW1) even clarified the manner of the commission of the carnal intercourse with him by the accused.
22. Further, the conduct of PW-1 and PW-2 i.e. father of FIR No.512/03, PS Jahangir Puri Page 10 of 14 victim child recorded by Ld. Predecessor on 21.01.2004 when the court found the victim child/PW-1 to be terrified and he deposed that nothing happened with him and he did not identify the accused. At the same time Ld. Predecessor recorded the conduct the PW-2 where he shouted in the examination of PW-1 that he has forgiven the accused that he had committed. My Ld. Predecessor has very rightly recorded the conduct of PW-1 and PW-2 u/s 280 Cr. PC. Further, if it is proved from the circumstances of the case that the witness has voluntarily deposed falsely then the court can rely upon his statement recorded u/s 161 Cr.PC. I find support from the judgment of Hon'ble Supreme Court titled as Bhagwan Dass Vs. State NCT of Delhi AIR 2011SC1863 & Bhajju @ Karan Singh Vs. State of M.P.2012CrLJ 1926. The statement of the prosecution witness who has turned hostile can be relied upon by the court to base the conviction to the extend to which witness has supported the prosecution case after setting apart the part of statement in which the witness has not supported the prosecution witness.
23. The complainant/victim supported the story of the prosecution. The evidence led by him is confirmed by the medical opinion i.e. Dr. Neeraj Chaudhary (PW7). The complainant/victim identified the accused, present in the court on the day of his re-examination. Hence, the identity of the accused is also established in this case.
24. The conduct of PW-1 and PW-2 on 21.02.2004 clearly FIR No.512/03, PS Jahangir Puri Page 11 of 14 proved that it was the accused who has committed unnatural offence with PW-1 and PW-2 had entered into settlement with accused for which he has forgiven the accused. That such conduct of PW-1 and PW-2 proved that they had deliberately turned hostile on the point of identity of accused where as both of them had supported the prosecution case without any doubt.
25. Further, it has been observed that PW-6 namely, Phoolwati is another material prosecution witness, who has supported the prosecution case and deposed against the accused. She has very clearly deposed that at the relevant time she has gone to her parental house at Trilokpuri and the accused was alone at home. The said fact had provide the opportunity to the accused to commit the offence with PW-1. So the testimony of PW-6 is relevant u/s 7 of Indian Evidence Act, 1872. Perusal of statement of PW6 further reveals that she did not know what was committed by the accused at the home in her absence. She had not denied the factum of the offence committed by the accused where as she was expected to deny and deposed in favour of accused being her mother. This further corroborates the testimony of PW-1 and PW-2 and proves incriminatory against the accused. Further more accused has not opted to cross examined her and put his defence through PW-6 whereas he could have get the favourable evidence in his favour through PW-6. Accused had impliedly accepted the veracity of the testimony of PW-6.
FIR No.512/03, PS Jahangir Puri Page 12 of 1426. The statement of PW-1 was corroborated by PW-7, Dr. Neeraj Chaudhary who have proved the MLC of PW-1 which is Ex.PW7/A and MLC of accused which is Ex.PW7/B. Admittedly PW-7 was not the doctor who prepared the said MLCs but he had appeared on behalf of Dr. Vikram, Dr. Sinha who prepared MLC of PW-1 Ex.PW7/A and Dr. Rajeev Kumar Tyagi who prepared the MLC of accused Ex.PW7/B. All the three Doctors had left the hospital by the time they were summoned by the court for their examination and there were abouts were not known. So PW-7 Dr. Neeraj Chaudhary appeared on their behalf and identified their signatures and hand writing. The MLC Ex.PW7/A and Ex. PW7/B was admitted in evidence by virtue of section 32 (2) of Indian Evidence Act as the said MLCs were prepared by those doctors in the course of their business and duty they were not found when they were summoned. Further the said MLCs are relevant in itself u/s 35 of Indian Evidence Act. Further more the said MLCs were not tried to be disprove on behalf of accused in cross examination of Pw-
7. But no question or suggestion were put to him regarding the said MLCs. So MLCs Ex.PW7/A and B are duly proved. I find support on the judgment of Hon'ble Supreme Court in case titled Ram Kumar Pathak and Ors. Vs. Govt. NCT of Delhi/2015(4) JCC2713SC.
27. The injuries were found in the medical examination of PW-1 on his anal region and all the sexual characteristics of the accused were found normal. So no reason has been found from the testimony of prosecution witnesses as well FIR No.512/03, PS Jahangir Puri Page 13 of 14 as the MLC of accused that he was not capable of committing sexual intercourse further more the version of PW1 and prosecution case is further corroborated by the MLC of PW-1 Ex. PW7/A in which he has suffered injuries on his anal region.
28. So far as the charges for the offence u/s 506 IPC are concerned, it was deposed by victim Master Raju (PW1) that he was also criminally threatened by the accused to not to disclose the offence to anyone, otherwise accused would beat PW1. From the testimony of the complainant and the offence committed by the accused with PW1, all the ingredients of offence u/s 506 IPC are proved, so from the testimony of PW1, commission of offence u/s 506 IPC stands proved beyond reasonable doubt.
29. In view of above, it is clear that all the prosecution witnesses including the complainant supported the story of prosecution. There is nothing on record to make me disbelieve the deposition of the complainant (PW1) in this case.
Accordingly, the prosecution has proved its case beyond all reasonable doubts. Hence, the accused is convicted for the offences punishable u/s 342/377/506 IPC.
ANNOUNCED IN THE OPEN (SUNIL KUMAR) COURT ON 08.03.2016 MM-03(NORTH)/ROHINI DELHI FIR No.512/03, PS Jahangir Puri Page 14 of 14