Delhi District Court
State vs . Ajay @ Sanjay on 15 April, 2014
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 116/13)
Unique ID case No. 02404R0222822013
State Vs. Ajay @ Sanjay
FIR No. : 147/13
U/s : 377 IPC
& u/s. 4 / 5 (m) / 6/8/10 of POCSO Act, 2012
P.S. : Bharat Nagar
State Vs. Ajay @ Sanjay
S/o Sh. Kali Charan,
R/o N77 B572,
Sawan Park Extension,
Ashok Vihar PhaseIII,
Delhi.
Date of institution of case - 03.08.2013
Date on which, judgment has been reserved 15.04.2014
Date of pronouncement of judgment - 15.04.2014
JUDGMENT :
1 Briefly stated the case of the prosecution is that the victim child P is resident of Village and Post Harpal Pur, District Chhatarpur, M.P., and had come along with his mother PW7 Smt. Chandrawati to stay at house of his SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 1 of 17 2 maternal grandparents during summer vacation in the year 2013. At about 12:30 PM child P, then aged about 8 years, went to public shochalaya near their house. He returned back weeping after half an hour and when PW7 Smt. Chandrawati asked him reason for it, he told her that someone had committed wrong act with him in the public toilet. The PW7 found that the underwear which child P was wearing at that time was blood stained and he was also bleeding from his anal region. The PW7 took her son to public toilet where victim child P pointed towards toilet No.3 and PW7 found blood stains on the floor of the toilet there. The victim child P gave description of the person, who had committed wrong act with him, and further told PW7 Smt. Chandrawati that the said person had run away from there by jumping over the wall of the toilet. The PW7 thereafter gave a call at 100 number which was registered vide DD No.18A i.e. Ex.PW3/D at PS Bharat Nagar. The investigations thereupon were marked to PW8 SI Mohinder Singh, who reached the spot i.e. public shochalaya at Sawan Park, Ashok Vihar Phase III, Delhi, along with HC Jai Bhagwan. The injured / victim child P had already been removed to BJRM Hospital by PCR by then and this information was given to PW8 SI Mohinder Singh by Ct. Darvesh, Beat Constable of the area, who was present at the spot. When PW8 SI Mohinder Singh reached BJRM Hospital where he found that victim child P was in 'operation theater' under treatment and so he left HC Jai Bhagwan in the hospital and went back to the spot where he got the place of incident inspected by the Crime Team. After the Crime Team left the spot, the PW8 SI Mohinder Singh again went to the hospital and obtained the MLC of victim child P. He also recorded the statement of Smt. Chandrawati, mother of SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 2 of 17 3 victim child P, prepared rukka thereupon and got the case FIR registered on the basis of said rukka. During the course of investigations IO prepared the site plan Ex.PW8/E of the place of incident. He also made efforts to search for the accused but in vain. On 05.06.2013 IO again went to the hospital and obtained opinion of the doctor regarding fitness of the victim child P to make statement. It is stated that in the meantime SI Ramkesh and Ct. Darvesh came to hospital with four boys, including the accused Ajay @ Sanjay, who had been rounded up on suspicion for identification by the victim child. It is claimed that the accused was identified by the victim and thereafter IO proceeded to record the statement of victim child P in question answer form vide Ex.PW8/G. Simultaneously the proceedings were got videographed through SI Ramkesh and the proceedings were later on produced before the Court in the form of CD Ex.PX. The accused was also got medically examined. The exhibits taken from the accused and victim child P were sent to FSL for analysis. The IO also got recorded statement of victim child u/s. 164 CrPC. He himself recorded statement of other witnesses, who were joined by him in investigations of the case. After completing investigations, charge sheet was prepared and filed in the Court through SHO concerned. 2 After hearing arguments, charge for the offence under Section 5
(m) punishable under Section 6 of POSCO Act, 2012 was framed against the accused. However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence. 3 In order to prove its case, prosecution has examined 9 SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 3 of 17 4 witnesses.
4 The PW1, SI Ramkesh, had joined the investigations of the present case with the IO on 05.06.2013 and had taken four boys, who were arrested on suspicion in the present case, along with Ct. Darvesh, to BJRM Hospital and produced them before the IO. He deposed that the victim child P, who was under treatment in the hospital, identified the boy, who was standing at serial number 2. he also deposed that in his presence IO SI Mohinder Singh had recorded the statement of victim child P in question answer form vide CD Ex.PX.
5 The PW2, Dr. Vaibhav Gulati, was deputed in place of Dr. Haaris Rasheed, then CMO working at BJRM Hospital. He proved the MLC of victim child P as Ex.PW2/A by identifying handwriting and signatures of Dr. Haaris Rasheed thereupon. He stated that on local examination Dr. Haaris Rasheed observed rectal bleeding and tear at 11 O' Clock and 6 O' Clock positions, at the anal orfice, of the patient and that after examination the patient i.e. the victim child P was referred to surgery department for further management. The PW2 further proved the MLC of accused, who too was examined by Dr. Haaris Rasheed on 06.06.2013, as Ex.PW2/B. 6 During his crossexamination the PW2 was asked a question whether the observations in the MLCs of the victim and accused were affirmative of the fact that accused had committed sexual assault upon the victim. The witness answered by stating that samples had been taken from SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 4 of 17 5 the victim as well as accused and hence the same could be affirmed by FSL result only. The witness was also asked if the victim had complaint of piles, etc. The witness replied by stating that as per MLC no such complaint was made by victim and / or his family members. He volunteered to state that piles did not manifest in the form of lacerated wound. 7 The PW3, HC Manoj Kumar, was posted as Duty Officer at P.S. Bharat Nagar on 04.06.2013. He deposed about registration of FIR of the present case. He proved the computerized copy of FIR as Ex.PW3/A, endorsement made by him on rukka as Ex.PW3/B and the certificate u/s.65 B of Evidence Act as Ex.PW3/C. 8 The PW4, SI Naresh Pal, was the Incharge of the Mobile Crime Team and had visited the place of incident, along with his staff on 04.06.2013. He deposed that on reaching the spot, he found IO and the SHO, along with other staff, present there and that he inspected the site and found a blood stained water can of yellow colour at the seat of the latrine and that got photographs of the spot taken by Ct. Subhash and also instructed the IO to seize the blood as well as yellow can from the spot. He proved his detailed report as Ex.PW4/A. 9 During his crossexamination the PW4 admitted that he had not mentioned the size of yellow water can in his report Ex.PW4/A. 10 The PW5, Ct. Subhash, was posted as photographer with the SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 5 of 17 6 Mobile Crime Team at the relevant time. He proved the eleven photographs of the scene of crime, taken by him, as Ex.PW5/A1 to Ex.PW5/A11 and CD of photographs as Ex.PW5/B. 11 The PW6 is the victim child P. The testimony of this witness was recorded in camera proceedings. It was ensured that the victim child was comfortable while deposing and for this purpose, certain preliminary questions were put to victim child M to ascertain his competence to depose as witness and to be satisfied that he understood the importance of speaking truth. After being so satisfied, his testimony was recorded. In the relevant portion of his statement the victim deposed as under : "Q. Kya hua tha ?
Ans. Mere sath rape hua tha.
Q. Kahan par hua tha ?
Ans. Shochalay me hua tha .
Q. Aap wahan kisliye gaye the ?
Ans. Main latrine ke liye gaya tha.
Q. Kitne baje gaye the ?
Ans. 12.30 beje din me gaya tha.
Q. Phir kaya hua ?
Ans. Wahan par ek ladka aa gaya tha.
Q. Kaya aap use jante ho ?
Ans. Nahi. Pahle kabhi nahi dekha.
Q. Phir us ladke ne kaya kiya ?
SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 6 of 17
7
Ans. Mere kapde utare, aur mere saath gandi harkat kari.
Q. Kaya gandi harkat kari ?
Ans. Usne apne kapde utare, mere kapre utare, apna nunu mere ponu me dal diya.
Q. Nunu kise kahte hai ?
Ans. Jahan se pesab karte hai.
Q. Ponu kise kahte hai ?
Ans. Jahan se latrine karte hai.
Q. Phir kya hua ?
Ans. Muje dard hua tha. Mere hospital me tanke
lage.
Q. Kaya apne shor machaya tha ?
Ans. Shor machaya tha. Usne mere munh dab diya
tha.
Q. Kaya aap us admi ko pachante ho ?
Ans. Haan.
Q. Aap dekh kar batao, ki wo admi yahan hai ya
nahi?"
At this stage the witness looked through the design in the wooden partition and stated that the boy, who had committed wrong act with him, was not present in the Court (at that time the accused was sitting behind the wooden partition on a chair in the last row of chairs in the Court room). SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 7 of 17 8 12 The witness also stated that he had come in the Court earlier and given his statement before one uncle. It was observed that the statement of victim u/s.164 CrPC was recorded by Sh. Vipin Kharb, learned MM.
Certain leading questions were put to the witness by learned Additional PP, on the point of identity of the accused, in response to which the witness deposed as under : "Q. Kaya police uncle apko hospital me le gaye the ? Ans. Haan.
Q. Kaya hospital me police uncle, ne charpanch ladke dikhaye the ?
Ans. Haan
Q. Kaya hospital me apne un ladko me se, ek ko
pehchan kar bataya tha, ki isne mere saath galat kaam kiya tha.
Ans. Haan Q. Jo ladka aaj apko court me dikhlaya hai, wo wohi ladka hai, jisko apne police uncle ke samne hospital me pehchana tha ?
Ans. Us samay me dhik se hoosh me nahi tha.
Police uncle ne dikhaya tha, aur maine keh diya tha, ki ye wahi ladka hai.
Court Q. Kaya jis ladke ko apne hospital me pehchana tha, wo wahi ladka tha, jisne apke saath SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 8 of 17 9 galat kaam kiya tha ?
Ans. Nahi. Us samay me hosh me nahi tha. Vaise hi bol diya tha.
Galat kaam to hua tha, par ye wo ladka nahi hai.
Q. Ye baat sahi hai, ki aaj aap mummy ke kehne par us ladke ko nahi pehchan rahe ?
Ans. Nahi, yeh, wo ladka nahi hai. Wo to bhag gaya tha."
13 The PW7, Smt. Chandrawati, is the mother of the victim child P. She deposed that in the summer of the year 2013, she had come to stay at her parental house at Sawan Park, along with her children during summer vacations and that at about 12:30 PM, victim child P went to public toilet to ease himself and that he returned back about half an hour while weeping. The PW7 further deposed that the victim child P told her that someone had committed wrong act with him in the public toilet and that on checking she too found underwear of victim child P was stained and that blood was oozing out of his wound. She then deposed that she went to the public toilet with her son and that child P showed her toilet No.3, which had blood stains on the floor of the toilet, and also gave her description of the person who had committed wrong act with him and that thereafter she gave a call at 100 number and that the victim child P was taken to hospital by the police and was got admitted there. She proved her complaint which was recorded by the police in hospital, as Ex.PW7/A. She also deposed that police had SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 9 of 17 10 recorded statement of her son and had got videography done of the said proceedings. She was shown the CD of the video recording of the proceedings and affirmed the same to be correct recording of proceedings, thereafter the CD was exhibited as Ex.PX. This witness too failed to identify the accused. Though the witness was declared hostile and was cross examined at length on the point of identity of the accused, she failed to support the prosecution case as regards the identity of the accused as the person, who had committed wrong act with her son.
14 The PW8, SI Mohinder Singh, is the investigating officer in the present case and he deposed regarding the investigations carried out by him and the documents prepared by him during the course of investigations. He deposed that after receiving DD No.18 A Ex.PW3/D, he reached the spot where he came to know that the injured / victim had already been removed to BJRM Hospital by PCR van and thereafter he left Ct. Darvesh to guard the scene of occurrence and went to BJRM Hospital with HC Jai Bhagwan where victim child P was found admitted in OT under treatment and that thereafter he had left HC Jai Bhagwan at the hospital and again went to the spot and summoned Crime Team. He then deposed that the Crime Team inspected the spot and took photographs. He proved the seizure memo of blood sample in gauze piece, which was lifted by Crime Team and seized by him, as Ex.PW8/A ; seizure memo of a yellow colour plastic can, which had a cut mark on its top and was having blood stains on it, which was also recovered by Crime Team as Ex.PW8/B and the report of Crime Team as Ex.PW8/C. He proved the rukka, prepared by him on the basis of statement of Smt. SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 10 of 17 11 Chandrawati, mother of victim child P, as Ex.PW8/D and site plan as Ex.PW8/E. 15 The PW8 further deposed that on 05.06.2013, he moved an application Ex.PW8/F for obtaining the opinion of the doctor regarding the fitness of the victim child to make his statement on which the CMO had declared the victim child P 'fit for making statement' and that in the meanwhile, SI Ramkesh and Ct. Darvesh came in the hospital with four boys and that SI Ramkesh told him that the public persons of the area had doubt on said four boys and that is why those boys were brought in the hospital for identification purpose. Some Court questions were put to the witness regarding the proceedings in which the accused was got identified by him from the victim child P and in response to the same witness deposed as under : "Court ques.: Did you record the proceedings in which the accused was got identified by the victim child either by taking written notes of the proceedings or getting the same videographed ?
Ans. No. Court Ques.: Did you record the names of the four boys brought by SI Ramkesh and the sequence in which they were made to stand before victim child for purpose of their identification ?
Ans. No. SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 11 of 17 12 Court Ques.: Have you taken note of the names, etc. of said boys even in the case diary ?
Ans. No. Court Ques.: Can you tell whether the victim identified the assailant at second number from the left side or the right side ?
Ans. No."
16 The PW7 also proved the statement of the victim child P which was recorded in question answer form as Ex.PW8/G ; arrest memo of accused as Ex.PW8/H ; personal search memo of accused as Ex.PW8/J ; disclosure statement of accused as Ex.PW8/K ; pointing out memo of place of incident as Ex.PW8/L ; seizure memo of exhibits of victim child P as Ex.PW8/X ; order of CWC in which the custody of victim child was restored to his parents as Ex.PW8/M ; the statement of parents of victim child P regarding handing over the custody of victim child as Ex.PW8/N and seizure memo of exhibits of accused as Ex.PW8/P. The PW7 also identified the case property i.e. one yellow colour plastic cane of 5 ltr. as Ex.PZ. 17 During crossexamination, the PW7 deposed that he did not contact the holder of mobile phone No.8826179275, which was mentioned in DD No.18A, and that the statement of complainant was recorded by him on 04.06.2013 in the hospital and the statement of victim was recorded on 05.06.2013.
SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 12 of 17 13 18 The PW9, Sh. Vipin Kharb, learned MM, had conducted the proceedings u/s.164 CrPC and proved the same as Ex.PW9/A to Ex.PW9/D i.e. the application filed by IO for recording of statement of victim child u/s.164 Cr.P.C as Ex.PW9/A ; statement of victim child u/s.164 CrPC as Ex.PW9/B ; the certificate given by PW9 as Ex.PW9/C and application for supply of copy of said statement, filed by IO, as Ex. PW9/D. The PW9 further deposed that two CDs of the proceedings i.e. CD1 and CD2 were prepared and that the CD1 was with original proceedings which was sealed in a sealed cover and given to the Ahlmad with the directions to send the original proceedings to the Court concerned and the CD2 was given to the IO along with the printed copy of proceedings. He proved the CD1 as Ex.PY. 19 After closing of prosecution evidence, statement of accused Ajay @ Sanjay was recorded u/s 313 Cr.P.C. Accused stated that he is innocent and had been falsely implicated in this case by the police. He further deposed that he had nothing to do with the offence of the present case and that he was illegally lifted from his house and falsely booked in this case. The accused declined to lead evidence in his defence. 20 Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State. 21 Learned Additional PP has contended that the victim child as well as his mother duly have supported the case of the prosecution as regards the incident and even though they failed to identify the accused, the SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 13 of 17 14 videography of the proceedings, wherein the statement of victim was recorded by the IO in the hospital, clearly shows that it is the accused, who was responsible for committing penetrative sexual assault upon the victim. It is thus prayed that the accused be convicted for the charged offences. 22 On the other hand, learned counsel for accused has contended that accused is innocent and has been falsely implicated in the present case. It is further submitted that since victim has failed to identify the accused as the person, who had committed penetrative sexual upon him, the prosecution has miserable failed to prove its case against the accused beyond reasonable doubt against the accused. As regards the videography, it is contended that the same does not carry images of victim child identifying the accused in the hospital and that even otherwise no judicial TIP was got conducted by the IO to ascertain the identity of the accused and that accused has been falsely implicated in the case by the IO on mere suspicion. It is accordingly prayed that the accused be acquitted of the charged offence. 23 I have heard the arguments put forward by ld. Addl. PP as well as learned counsel for the accused and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
24 In the present case, accused is alleged to have committed penetrative sexual assault on victim child P on 04.06.2013 when at around 12:30 PM he (victim child) went to public shouchalaya at Sawan Park, Ashok SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 14 of 17 15 Vihar, PhaseIII, Delhi, to ease himself. The victim child, who is resident of Village Harpal Pur, Station Mohalla, District Chattarpur, MP, had come to Delhi during summer vacations with his mother for a stay at the house of his maternal grandparents when the incident took place. The incident was narrated to PW7 Smt. Chandrawati, mother of the victim child P, by victim himself when he returned back home in an injured condition after about half an hour. The accused was arrested in the present case on 05.06.2013, apparently on identification of the victim child. The victim child P was examined as PW6 and he fully supported the prosecution case as regards the incident, as has been submitted by learned Additional PP, however, as far as the identification of the accused is concerned, he denied that accused was the same person, who had committed penetrative sexual assault upon him at public shouchalaya on 04.06.2013.
25 The learned Additional PP has relied upon CD Ex.PX, which contained video clipping of the proceedings wherein IO had recorded the statement of victim child P in the hospital to contend that identity of accused stand established by prosecution. However submission made by learned Additional PP cannot be sustained for several reasons. Firstly, although IO claims that he had shown the accused, along with three other boys, to the victim and had thereafter arrested the accused upon identification of the victim, he could not produce any record of the said proceedings. Certain Court questions were asked from the IO regarding identification proceedings in as much as he was asked whether he had made record of the proceedings in which accused was got identified by the victim child either by taking written SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 15 of 17 16 notes of the proceedings or getting the same videographed and the same were replied to in negative by the IO. Further question was asked from the IO whether he had recorded names of the four boys brought by SI Ramkesh to hospital and the sequence in which they were made to stand before victim child P for the purpose of identification. This question was also replied to in negative by the IO. The IO was then asked whether he had noted names, etc., of the four boys even in his CD. The IO again replied to the same in negative. Lastly the IO was asked whether the victim had identified the assailant at second number from his left side or the right side and this too could not be replied specifically by the IO. The Court questions put to IO and the response given by the IO thereto make it clear that instead of following a lawful procedure of judicial TIP, IO adopted some strange procedure whereby he produced four boys, arrested on suspicion in the present case, before victim child for identification in the hospital and thereafter arrested the accused on identification by the victim child P. For the reasons best known to the IO, he did not keep any record of the four persons, who had been rounded up by him or the sequence in which they were produced before the victim child or the manner in which he was identified by the victim child and even the videography / CD Ex.PX prepared by him in the hospital was devoid of details / record of the alleged proceedings of identification of the accused. The prosecution thus miserably failed to prove that victim child had actually identified the accused in the hospital or that the accused was arrested on identification of the victim child P by the IO. The prosecution has completely failed to establish the identity of the accused as the perpetrator of the crime in the present case.
SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 16 of 17 17 26 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has failed to prove the guilt of the accused Ajay @ Sanjay on record, beyond the reasonable doubt. Accordingly, I acquit accused Ajay @ Sanjay for the charged offences.
File be consigned to the Record Room.
(Announced in the open Court ) (Illa Rawat)
(Today on 15.04.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi.
SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 17 of 17
18
FIR No. 147/13
P.S. Bharat Nagar
15.04.2013
Present: Ld. Addl. PP for the State.
Accused produced from JC with counsel Sh. Kashmir Singh. Statement of accused u/s.313 CrPC recorded. Accused does not want to lead evidence in defence.
Arguments heard.
Judgment shall be passed during the course of the day.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi At 4:30 PM Present: As before.
Vide separate judgment, announced today in the open Court, accused Ajay @ Sanjay has acquitted of the charged offence. He is in J.C. He be released forthwith, if not required to be detained in any case or proceedings.
File be consigned to Record Room.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi/15.04.14 SC No. 116/13 State Vs. Ajay @ Sanjay Page Nos. 18 of 17