Delhi District Court
State vs Dharmender on 22 February, 2018
IN THE COURT OF
SH. BALWANT RAI BANSAL, ADDITIONAL SESSIONS
JUDGE01, SPECIAL COURT (POCSO), SOUTH, NEW DELHI
CIS SC No.7182/16
FIR No. 78/13
PS: Fatehpur Beri
In the matter of:
State
versus
Dharmender
S/o: Sh. Babu Lal
R/o: House No.A2/777, Farm No.7,
near Kali Mandir, Aya Nagar,
PhaseV, New Delhi.
............ Accused
Date of Institution : 31.05.2013.
Date of Reserving judgment : 15.02.2018.
Date of pronouncement : 22.02.2018.
JUDGMENT
[1]. This is a case, in which, accused Dharmender S/o Sh. Babu Lal, has faced trial for his having committed the offences CIS-SC No.7182/16 "State v. Dharmender" Page No. 1 of 22 punishable under section 377 of the IPC and section 4 of the POCSO Act 2012, on the allegations that he committed carnal intercourse against the order of nature having penetrative sexual assault upon a 10 years old child (the victim), namely, PW1 master 'R' (real name withheld in order to conceal his identity).
[2]. The State machinery came into force on receipt of DD No.26A on 14.04.2013 by ASI Ramesh Singh, pursuant to which he alongwith Ct. Basram, reached the spot, that is, the house of the complainant, namely, 'G' (PW2 full name and the address withheld in order to conceal her identity and the same are mentioned at Sl.No.01 in the list of witnesses attached with the police report u/s 173 Cr.P.C.), where the complainant 'G' met there alongwith her son (the victim), namely, 'R' (PW1 full particulars withheld in order to conceal his identity and the same are mentioned at Sl.No.1A in the list of the witnesses) and at that time, the victim child was perplexed. The complainant gave statement to the police that "[One boy, namely, Dharmender had committed wrong acts with her son 'R' by forcibly CIS-SC No.7182/16 "State v. Dharmender" Page No. 2 of 22 inserting his penis into the anus of her victim son and also by putting his penis into the mouth of her victim son. The said facts had also been confirmed by the victim child in perplexed condition to the police. Thereafter, ASI Ramesh Singh alongwith Ct. Basram took the victim child alongwith his mother (the complainant) to AIIMS hospital for the medical examination of the victim and there, the medical examination of the victim child was got conducted. Thereafter, ASI Ramesh Singh recorded the statement of the complainant 'G' in the hospital, in the presence of her husband. The complainant stated in her statement that "She resides as tenant at the given address alongwith her family and she belonged to Bihar. She stated that she stays at home and her husband is doing a private job. She has two sons, namely, 'R' and 'Y', aged 10 years and 6 years. She further stated that today i.e. on 14.04.2013 at about 02:30pm, when she was present in her house alongwith her younger son 'Y', in the meantime, her elder son 'R' who had gone for playing, came weeping to her. On this, she asked him as to why he was weeping and her son CIS-SC No.7182/16 "State v. Dharmender" Page No. 3 of 22 replied that 'while he was playing, he went to the nearby jungle for urination, where Dharmender bhaiyya, who is a resident of the same colony, caught hold of him. Her son 'R' further told to her that the said Dharmender bhaiyya took him near a wall and removed his wearing nicker as well as of his own pant and thereafter Dharmender bhaiyya forcibly inserted his penis into the mouth of the victim 'R'. Her victim son 'R' further told to her that when he tried to escape from the clutches of the said Dharmender bhaiyya, he threatened him and pushed him on the ground and then Dharmender bhaiyya forcefully inserted his penis into his anus, due to which her victim son 'R' was feeling pain'. When the son of the complainant was narrating the incident to the complainant, in the meantime, Dharmender S/o Babu Lal, who was already known to her, came there. When the complainant trying to ask about the incident to the said Dharmender, he started threatening her, and subsequently, she made call at number 100]".
[3]. On the aforesaid statement of the complainant, rukka was CIS-SC No.7182/16 "State v. Dharmender" Page No. 4 of 22 prepared by ASI Ramesh Singh for the offences punishable under section 377 IPC and section 6 of the POCSO Act and the FIR was got registered through Ct. Basram. After registration of the case, the investigation was handed over to the IO/SI Jaivir Singh. The IO recorded the statements of the witnesses and the accused Dharmender was arrested. Disclosure statement of the accused was recorded and the accused refused to participate in his TIP proceedings. [4]. Thereafter, the statement of the victim child under section 164 of Cr.P.C. was recorded, wherein the victim child 'R' stated that "[On 14.04.2013, in the afternoon, his mother sent him for latrine and when he was on the way, in the meantime, Dharmender who used to reside in their street and used to do cycling, forcefully caught hold of his hand and took him in the jungle. He further stated that in the jungle, Dharmender inserted his penis into his mouth and he also inserted his penis into his anus. The victim further stated that when Dharmender was taking him, in the meantime, Aunty saw him. The said Aunty asked him as to what he was doing. The victim child ran CIS-SC No.7182/16 "State v. Dharmender" Page No. 5 of 22 towards his home and he also wept and raised alarm and then both the Aunties saw this. Thereafter, he narrated about the incident to his mother after reaching home. The victim further stated that Dharmender also used abusive language with his mother]". [5]. During the investigation, on 17.04.2013, exhibits were deposited with the FSL, Rohini for analysis. After the investigation, the police concluded that accused Dharmender had committed offences punishable under section 377 of IPC and section 6 of the POCSO Act 2012, and subsequently, on 31.05.2013, the police report under section 173 of Cr.P.C. was put up before the court. [6]. On 12.08.2013, charge was framed against the accused for his having committed offence punishable under section 377 of IPC and section 4 of the POCSO Act, and the same was read over and explained to the accused, to which, he pleaded notguilty and claimed trial.
CIS-SC No.7182/16 "State v. Dharmender" Page No. 6 of 22 [7]. In support of its case, the Prosecution has examined 15 witnesses to prove its case, including the victim as PW1. [8]. PW1 Master 'R' is the victim in the present case, who is the main and crucial witness to prove the case of the prosecution. The testimony of the victim child will be critically evaluated in detail, in the later part of the judgment.
[9]. PW2, namely, Smt. 'G' is the complainant and the mother of the victim child. She was examined in the court on 29.10.2013, in which, she deposed that about 56 months ago, her son 'R' (the victim), aged 10 years, came to her that a boy had done wrong act with him. He did not disclose about the name of that boy who did the wrong act with him. She further deposed that she does not know who did wrong act with him. PW2 was crossexamined by the Ld. Prosecutor, in which she denied the suggestion that she named accused Dharmender as the person who did wrong act with her son 'R' and she knows accused Dharmender even prior to the incident. She CIS-SC No.7182/16 "State v. Dharmender" Page No. 7 of 22 deposed that her statement Ex.PW2/A bears her signatures at point A, but she did not name accused Dharmender in that statement. She denied the suggestion that she correctly named accused Dharmender in her statement Ex.PW2/A, but she is denying the same today as she has been won over by the accused or that she has reached to a settlement outside the court. She also denied the suggestion that she has deposed falsely before the court regarding the identification of the accused.
[10]. PW3 HC Devender Kumar is the Duty Officer who registered the FIR which is Ex.PW3/A. [11]. PW4, namely, 'D' (full name and the address withheld in order to conceal his identity and the same are mentioned at Sl.No.02 in the list of witnesses attached with the police report u/s 173 Cr.P.C.), is the father of the victim 'R'. He deposed that on 14.04.2013, he was at Megha City where he was working as a Parking Attendant. On that day, he received a call from his wife that his son CIS-SC No.7182/16 "State v. Dharmender" Page No. 8 of 22 was at AIIMS hospital as he was sodomized by some person. PW4 reached there, and the police recorded the statement of his wife and his son 'R', aged 10 years.
[12]. PW5 Dr. Hari Prasad, Sr. Resident, AIIMS Hospital, New Delhi, medically examined accused Dharmender on 15.04.2013 vide MLC report Ex.PW5/A, and found nothing to suggest that accused was incapable of performing sexual intercourse under normal circumstances.
[13]. PW6 ASI Ramesh Singh, on receipt of a PCR call vide DD No.26A on 14.04.2013, he alongwith Ct. Bas Ram reached at the spot and recorded the statement Ex.PW2/A of the complainant. He got the victim child medically examined from the AIIMS and also collected the medical exhibits of the victim child vide memo Ex.PW5/A. Thereafter, he came back to the police station and prepared rukka Ex.PW5/B and got the FIR lodged, and thereafter, further investigation was taken over by SI Jaiveer. CIS-SC No.7182/16 "State v. Dharmender" Page No. 9 of 22 [14]. PW7 Ct. Dinesh took the exhibits from maalkhana on 17.04.2013 and deposited the same with the FSL, Rohini. [15]. PW8 Ct. Kuldeep Sangwan is the witness of the arrest of the accused and in his presence, the personal search of the accused was conducted and the IO also recorded the disclosure statement of the accused. Thereafter, the accused was taken to AIIMS hospital for his medical examination and after the medical examination, the IO seized the medical exhibits of the accused, handed over by the doctor. [16]. PW9 Dr. Yusuf Afaque, Sr. Resident (Surgery), AIIMS Hospital, proved the MLC report Ex.PW9/A of the victim child, which was prepared by Dr. Srikant Agarwal.
[17]. PW10 Ct. Bas Ram, on receipt of DD No.26A 14.04.2013, reached at the spot alongwith IO, where the complainant met them and she told to the IO that Dharmender had committed wrong act with her son.
CIS-SC No.7182/16 "State v. Dharmender" Page No. 10 of 22 [18]. PW11 Ms. Chetna Singh, the then Metropolitan Magistrate, conducted the proceedings under section 164 of Cr.P.C. (Ex.PW11/B) on 17.04.2013 in respect of recording the statement Ex.PW11/C) of the victim child.
[19]. PW12 SI Jaivir Singh is the IO of the case, who was marked the investigation of this case on 15.04.2013 and conducted further investigation in the case.
[20]. PW13 Sh. Sandeep Garg, the then Metropolitan Magistrate conducted the proceedings of TIP in respect of the accused, but the accused refused to participate in the TIP proceedings. He has proved the record of the said TIP proceedings as Ex.PW13/B. [21]. PW14 Ms. Soni Khampa, Jr. Forensic Chemical Examiner (Biology), FSL, examined the exhibits in the present case and filed her report Ex.PW14/A. [22]. PW15 SI Randhir Kumar collected the FSL result from the MHC (M) and filed the same before the court through CIS-SC No.7182/16 "State v. Dharmender" Page No. 11 of 22 supplementary chargesheet.
[23]. After the examination of the prosecution witnesses, the PE was closed, and subsequently, accused Dharmender was examined under section 313 of Cr.P.C. During his examination, the accused denied the correctness of the incriminating evidence appearing against him during the prosecution evidence and further stated that he was falsely implicated in the present case and he had committed no offence.
[24]. The Ld. Special Public Prosecutor for the State has drawn my attention on the testimonies of the victim and the other witnesses examined by the prosecution that the case of the prosecution is fully proved and the accused is liable to be convicted. [25]. On the other hand, Ld. Defence Counsel argued that the prosecution has failed to establish the identity of the accused as the person who committed offence against the victim, and in the absence of any clinching evidence, the accused cannot be fastened with CIS-SC No.7182/16 "State v. Dharmender" Page No. 12 of 22 criminal liability.
[26]. I have considered the submissions made by the Ld. Special Public Prosecutor for the State and Ld. Defence Counsel and have gone through the record of the case including the testimonies of the prosecution witnesses, carefully.
[27]. In the light of the arguments advanced on behalf of the accused and the prosecution, the first point for determination is:
What was the age of the victim child on the day of the incident, i.e. on 14.04.2013?
[28]. In this case, though, the prosecution has claimed that the victim child was 10 years of age at the time of the incident, but the prosecution has not led any single evidence to prove the age of the victim child. Hence, in the absence of any evidence regarding the age of the victim child, it cannot be concluded that the victim was 10 years old at the time of the alleged commission of the offence, that is, on 14.04.2013.
CIS-SC No.7182/16 "State v. Dharmender" Page No. 13 of 22 [29]. The second point for determination is: Whether the accused sodomized the victim by committing carnal intercourse against the order of nature?
[30]. The criminal law was set into motion on the complaint of the mother of the victim, namely, 'G' vide Ex.PW2/A, which is noted herein above in detail, in which, she had alleged that her victim son had returned home while weeping and at that time he had told that one boy, namely, Dharmender had committed wrong acts with her son 'R' by forcibly inserting his penis into the anus of her victim son and also by putting his penis into the mouth of her victim son. Thereafter, the statement of the victim child was recorded under section 164 of Cr.P.C., which is Ex.PW1/B and in the said statement also he reiterated the facts given in the complaint that on 14.04.2013, in the afternoon, his mother sent him for latrine and when he was on the way, in the meantime, Dharmender who used to reside in their street and used to do cycling, forcefully caught hold of his hand and took him in the jungle. In his statement u/s 164 Cr.P.C., the victim further CIS-SC No.7182/16 "State v. Dharmender" Page No. 14 of 22 stated that in the jungle, Dharmender inserted his penis into his mouth and he also inserted his penis into his anus.
[31]. In order to prove the allegations, the prosecution examined PW1, who is the victim child and in his testimony, he stated that "[Bhaiyya took him in the jungle area about sixseven months ago and did wrong act with him (the victim was examined in chief on 29.10.2013). He further deposed that thereafter, he went to his house and told about the incident to his mother. Thereafter, his mother called the police and he was medically examined. The victim pointed out towards the accused and identified him as the said Bhaiyya. He further deposed that the accused penetrated his sexual organ into his mouth and also into his anus and by wrong act he means the said acts of the accused. He also deposed that his statement Ex.PW1/A was also recorded earlier by the police and his statement Ex.PW1/B was also recorded in the court.
[32]. In the crossexamination, he categorically stated that he had not seen the accused prior to today. He does not know the name of CIS-SC No.7182/16 "State v. Dharmender" Page No. 15 of 22 the accused, nor he knew where he stays. He further stated that there are many persons with the similar face as of the accused and he got confused upon seeing the accused. He stated that the person who committed wrong act with him was very tall. He categorically stated that "It is correct that out of confusion, I identified the accused as the same person who did wrong act with me".
[33]. In his reexamination at the request of the Ld. Prosecutor, the victim admitted the suggestion that he named Dharmender as the person who committed obscene act with him and stated that he penetrated his sexual organ into his mouth and anus. The victim voluntarily stated that he named Dharmender but the accused present in the court today is not the same person and he got confused by the face. He denied the suggestion put by the Ld. Prosecutor that the accused Dharmender present in the court today is the same person whom he identified correctly today in the court but again on the asking of defence counsel, he got confused and refused to identify him. He also denied the suggestion put by the Ld. Prosecutor that he is CIS-SC No.7182/16 "State v. Dharmender" Page No. 16 of 22 lying about the identification of the accused]." [34]. From the aforesaid statement of the victim, it is apparent that he has not identified the accused as the person who had committed wrongful acts against him and he categorically stated that he has not seen the accused prior to the date of recording of his testimony in the court. He even does not know the name of the accused nor he knows where he stays. Even the victim child has given the description that the person who committed wrongful act against him was very tall. The victim child categorically stated that there were many persons with the similar face as of the accused and he got confused upon seeing the accused, and the person who committed wrong act with him was very tall. He also stated that out of confusion, he identified the accused as the same person, who did wrong act with him.
[35]. During his reexamination by the Ld. Prosecutor, the victim child voluntarily stated that he named Dharmender but the accused present in the court at the time of the recording of his CIS-SC No.7182/16 "State v. Dharmender" Page No. 17 of 22 testimony in the court, was not the same person and he got confused by the face. The another witness examined by the prosecution is PW2 'G', who is the mother of the victim child and she has also not supported the case of the prosecution regarding the identity of the accused as the person who committed wrong acts with her son. She deposed that her son did not disclose about the name of that boy who did the wrong act with him and she does not know who did wrong act with her victim son. In her crossexamination by the Ld. Prosecutor, she denied the suggestion that she named accused Dharmender as the person who did wrong act with her son 'R' and she knows accused Dharmender even prior to the incident. She stated that she did not name the accused Dharmender in the statement Ex.PW2/A which bears her signature at point A. She further denied the suggestion put by the Ld. Prosecutor that she was deposing falsely in the court regarding the identification of the accused.
[36]. PW4, namely, 'DS' is the father of the victim child. In his statement also nothing incriminating against the accused has come CIS-SC No.7182/16 "State v. Dharmender" Page No. 18 of 22 because he has only received a call from his wife when he was at his workplace. In his crossexamination, he stated that the police officers were conducting the writing work on their own and he never gave any statement to the police.
[37]. PW8 Ct. Kuldeep Sangwan is the witness of the arrest of the accused, who deposed that the accused was arrested at the instance of informer and was not identified by the complainant in his presence. He stated that after his arrest, the accused was produced in muffled face before the court and he was sent to JC. He further deposed that simultaneously, the permission for TIP was obtained and he was produced before the concerned MM but the accused refused to participate in the TIP proceedings, and thereafter, he was sent to Tihar Jail. PW8 in his crossexamination stated that the accused was not brought to the police station nor he was shown to the witness to identify that he is the actual accused.
[38]. PW12 is the IO/SI Jaivir Singh, who had conducted the investigation of this case and in his crossexamination, he CIS-SC No.7182/16 "State v. Dharmender" Page No. 19 of 22 categorically stated that he had not made any efforts to know that how many young students with the name of Dharmender were residing in the colony. He also stated that he had not called the complainant/victim before the arrest of the accused to establish the identity of the accused who committed the crime. [39]. In view of the aforesaid statements of the prosecution witnesses, it is apparent that there is no clinching evidence to establish that it was the accused who did wrongful acts with the victim. The prosecution witnesses, namely, the victim and his mother, have not supported the case of the prosecution and they have not identified the accused. From the statement of PW8 Ct. Kuldeep Sangwan, it is apparent that the accused was not apprehended at the instance of the complainant. It is also apparent from the testimony of the IO/SI Jaivir Singh that he had not called the complainant/victim before the arrest of the accused to establish the identity of the accused who committed the crime.
CIS-SC No.7182/16 "State v. Dharmender" Page No. 20 of 22 [40]. It is also pertinent to note herein that the medical exhibits were sent to the FSL for scientific analysis and the FSL result has been proved as Ex.PW14/A by PW14 Soni Khampa, Junior Forensic Chemical Examiner (Biology), FSL. In her evidence, PW14 has categorically stated that "On DNA examination, DNA profile generated from source of Ex.8 (blood in gauze of accused) was not matching with similar male DNA profile generated from the source of Ex.1, 2 and 3 (the exhibits of the victim)". As such, the forensic evidence also does not support that it was the accused who committed wrongful act against the victim.
[41]. In the entirety of the facts and circumstances of the case and the ocular evidence and the material on record, the prosecution has not been able to prove that it was the accused who had sodomized the victim child and the identity of the accused as a perpetrator of the crime could not be established. Therefore, it is held that the prosecution has not been able to prove its case that the accused sodomized the victim child on 14.04.2013. Hence, the prosecution has CIS-SC No.7182/16 "State v. Dharmender" Page No. 21 of 22 failed to prove the charge against the accused, and therefore, accused Dharmender is not found guilty of committing carnal intercourse against the order of nature having penetrative sexual assault upon the victim child, and consequently, he is acquitted of offence punishable under section 377 of IPC and section 4 of the POCSO Act 2012. [42]. Bail bonds under section 437A of Cr.P.C. in the sum of Rs.15,000/ with one surety of like amount, is executed and furnished. The same is accepted and shall remain in force for a period of six months.
[43]. File be consigned to Record Room after necessary compliance.
(Pronounced in the open court (Balwant Rai Bansal) nd 22 of February 2018) Additional Sessions Judge01 Special Court (POCSO), South District:Saket Courts:
New Delhi.
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