Delhi District Court
State vs . Raj Kumar on 4 February, 2013
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. RAJ KUMAR
FIR No : 97/1996
U/S : 377 IPC
P.S : VIKAS PURI
1. Serial No. of the Case : 723/2/10/97
2. Unique ID of the Case : 02401R135981999
3. Date of Commission of Offence : 15.02.1996
4. Date of institution of the case : 14.02.1997
5. Name of the complainant : Raja Babu
6. Name of accused, parentage & : Raj Kumar
Address S/o Sh. Bhagat Ram
R/o Jhuggi, Indra Camp No. 5,
Vikas Puri, Delhi.
7. Offence complained : U/s. 377 IPC
8. Offence charged with : U/s. 377 IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 04.02.2013
J U D G M E N T
1 The accused Raj Kumar has faced trial for the commission of offence U/s. 377 IPC for having committed the carnal intercourse with the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 1/ 16 innocent boy RB. Factual background of the prosecution case are that on 15.02.1996 at about 12.00 Noon in the locality of the Indira Camp no. 5, Vikas Puri, a boy namely R.B aged about 10 years was returning back to his home from the house of his maternal uncle without knowing that in the way he would experience a pedophile waiting to satisfy his lust and looking for some prey. When the boy RB reached in front of the jhuggi of the accused, he was called by the accused from inside the jhuggi. The accused asked the innocent boy about the class in which he was studying. The boy replied that he was a student of fifth standard. The accused told him that he would teach him the English lesson. The boy was not interested in the same and wanted to leave the jhuggi instantaneously. Despite refusal by the boy, accused insisted for the same. After teaching for sometime, accused showed his true colors and bolted the gate of jhuggi from inside. Then the boy was asked to lay with him upon the charpai lying in the jhuggi. The accused then removed his pants and also undressed the boy. The accused committed then committed the carnal intercourse with the poor boy. The boy had pain, and tried to shout but the accused put his hand on his mouth. After satisfying his lust the accused threatened the boy not to disclose about the incident to anybody otherwise he would kill him. On the next day, the boy told his father about the incident who brought the boy to the Police Station where his FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 2/ 16 statement Ex. PW2/A was recorded. Thereafter, IO alongwith PW7 HC Prit Singh reached at Indra Camp No. 5 from where he took the accused and boy R.B to DDU Hospital where the accused and the boy were medically examined. IO had obtained the MLCs and prepared rukka. FIR got registered through PW7 HC Prit Singh. After completion of investigation by police, chargesheet against accused filed for commission of offence U/S 377 IPC.
2 Accused was summoned and the provisions of Section 207 Cr.P.C. were complied and the documents were supplied to the accused. Vide Order dated 04.02.1998, charge for commission of offence under section 377 IPC was framed by my Ld. Predecessor Sh. A. S. Dateer to which accused pleaded not guilty and claimed trial.
3 The prosecution has examined seven witnesses to bring home the guilt of the accused.
4 PW1 ASI Satyawati was the DO Officer and registered the FIR.
5 PW2 was the victim boy R.B who deposed consistently on the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 3/ 16 lines of the prosecution case. 6 PW3 Sh. Hem Raj was the father of the victim boy namely R.B. 7 PW4 Ct. Jaipal deposited the samples in the FSL, Malviya Nagar. 8 PW5 Dr. Nishu Dhawan deposed on behalf of Dr. Vipin
Mohanty and deposed about the MLCs of accused and victim boy R.B. 9 PW6 Desh Raj, Record Clerk from DDU Hospital proved the order of MRO destructing the MLC of R.B. 10 PW7 HC Prit Singh joined the investigation with the IO and deposed consistently on the lines of the prosecution. 11 Unfortunately IO ASI Ram Chander expired before he could step into the witness box. No other PW was examined by the prosecution.
12 In his statement U/s. 313 Cr.PC, the accused had taken the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 4/ 16
plea that he has been falsely implicated in this case and claimed to be innocent. He further submitted that the father of the boy had some altercation with the sister of the accused before the incident and wants to take revenge from him. Accused chose to lead defence evidence in his support.
13 in support of his defence the accused examined DW1, Smt Raj who, was the sister of the accused.
14 Ld. APP for the State has argued that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. He further submitted that the testimony of R.B. is reliable and trustworthy which has been able to bring home the guilt of the accused beyond reasonable doubt. 15 On the other hand, the Ld. Defence Counsel has submitted that prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He further submitted that medical evidence does not corroborate the testimony of boy R.B. He further submitted that prosecution has not examined the IO and that there is no public witness in the present case. He further submitted that there are contradictions in the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 5/ 16 evidence led by the prosecution on record which have rendered the case of the prosecution unbelievable and without any credence. 16 I have heard the Ld. APP for the State and Ld. Counsel for the accused at length and perused the record carefully.
17 In this case the accused has been charged with the commission of offence U/s. 377 IPC. Section 377 IPC defines Unnatural Offences. The essential ingredients of the offence are:
A. A person voluntarily has carnal intercourse.
B. Such intercourse is against the order of nature. C. It is with man or woman or an animal.
D. That there was penetration.
18 In Sudesh Verma Vs. State of Madhya Pradesh, Criminal Revision No. 184 of 2000, Hon'ble Chattisgarh High Court had cited the judgment of Birkha Vs. State of Madhya Pradesh relied upon by the Counsel for Petitioner wherein High Court of Madhya Pradesh had held that allegations U/s. 377 IPC is easy to make but to refute it is very difficult, therefore, unless there is some corroboration of the evidence of complainant, FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 6/ 16 there should be no conviction U/s. 377 IPC. In the same case, Ld. Counsel for the Petitioner had relied upon Nand Kishore Vs. State of Madhya Pradesh in which High Court of Madhya Pradesh had held that in case of conviction U/s. 377 IPC, it is really that conviction should not be based merely on uncorroborated testimony of the subject of evidence whether girl or boy. In the same case, Ld. Counsel for the petitioner also relied upon the case of Ishaque Mohammed Vs. State of Madhya Pradesh wherein Hon'ble High Court of Madhya Pradesh held that statement of complainant not corroborated even with medical evidence, is not sufficient for conviction. Accordingly, in view of the aforesaid propositions of law, it is well settled that the conviction U/s. 377 IPC should not be done on the testimony of complainant alone unless it is corroborated from sufficient medical evidence. In Lohana Vasant Lal Dev Chand, AIR 1968 Guj 252, it was held that corroboration of complainants testimony is not essential but the necessity of corroboration as a matter of prudence, except where circumstances make it safe to dispense with it, must be present to the mind of the Judge in a case under this Section. In Emperor Vs. Sain Dass, AIR 1926 Lahore 375, it was held that a charge of attempting to commit sodomy is very easy to bring but is very difficult to refute, the evidence in support of such a charge has to be very convincing in order to convict the accused. In Devi Dass (1928) 10 FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 7/ 16 Lahore 794, it was held that in a charge of sodomy stains of semen constitute important evidence and great weight, must, therefore be attached to the Chemical Examiners report.
19 Modi in his classical titled as MODI's Medical Jurisprudence and Toxicology, 23rd Edition at page no. 955 has made the following observations in the examination of passive agent in a case of sodomy. The same are reproduced hereunder: "................................................................................................................... The following signs may be discovered if the boy (passive agent) is not accustomed to sodomy:
(i) Abrasions on the skin near the anus with pain in walking and on defecation, as well as, during examination. These injuries are extensive and well defined in cases where there is a great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence, lesions will be most marked in children, while they may be almost absent in adults where there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. In most of the cases brought before Modi, he had seen suferficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the sphincter ani. In some cases, there may be bruising of the parts round about the anus and the abrasions may extend into the anus beyond its sphincter.
(ii) Owing to the strong contradictions of the sphincter ani, the penis rarely penetrates beyond an inch, and consequently, the laceration produced on the mucous membrane within the anus with more or less effusion of blood is usually triangular in nature, having its base at the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 8/ 16 anus and the sides extending vertically inwards into the rectum. Modi had found lacerations internal to the sphincter ani in several cases, but a typical triangular would only in a few cases. These signs may not be present in cases where the active agent has used lubricants or/and has introduced his penis slowly and carefully without using force into the anus of the passive agent who is consenting party.
(iii) Blood may be found around the anus, on the perineum or thighs, and also on the clothes.
(iv) Semen may be found in or at the anus, on the perineum, or on the garments of the boy too young to have seminal emissions. Swabs from inside and around the anus must be taken and examined microscopically.
20 In case of Shyam Bir Vs. State, 2009 (3) JCC 2121, it was held that:
"17. We also note that since the doctor, who conducted the postmortem examination, has not been examined, his report and opinion with regard to the cause of death cannot be looked into. With regard to the attempt of the prosecution to prove the postmortem report through a record clerk and not by the concerned doctor, this court had occasion to make certain observations on such an approach in the case of Ikramuddin Vs. The State:
CRLA. 189/1994 decided on 29.04.2009. The same are reproduced hereunder: "15. We may also note that the prosecution has undertaken the unsatisfactory approach of proving the MLC and the postmortem report through record clerks and not by the concerned doctors. Such a practice had been deprecated by courts time and again.
The fact that doctors are not examined to prove the MLC and the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 9/ 16 postmortem report certainly affects the probative value of these documents. The following passage appearing in a decision of a Division Bench of this Court in the case of Chander Dev Rai Vs. The State: 2009 (1) JCC would be instructive: '24. The FSL reports also completely exonerate the appellant. Even their probative value is not sufficient as they have not been proved to the satisfaction of the Court as they have been proved by a record clerk. In Sher Singh (Supra) it was held that before the documents like postmortem report and other reports are proved by a person other than the person who had prepared them, a thorough enquiry is to be done by the investigating officer by going personally to the concerned hospital and making efforts to trace the addresses of the doctor. Even if the persons who had prepared the documents are not traceable, it was held, that it is not proper to examine a clerk or a record keeper. In such cases another doctor working in the hospital who is acquainted with the handwriting and signatures of the doctor who prepared the same should have been examined. In the present case only a record keeper was examined and the said person was again examined for proving the back of the medical report. He has simply stated that he can identify the signatures and handwriting of the concerned doctors. No semblance of effort seem to have gone into tracing the doctors who had recorded the MLC and conducted the gynecological examination of the prosecutrix. Prosecution witness simply making the statement that the said doctor is not available or has left the service is not sufficient. Invariably before a doctor or for that matter any other person is employed he is enjoined to give permanent address to the employer. Same must have been the case here but the prosecution as usual has chosen a short cut of adducing the record keeper to prove the documents like MLC, medical examinations by simply stating that doctors are not available. This affects the probative value of these documents.' FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 10/ 16 The defence had suggested the alternative theory of suicide. Therefore, the examination of the doctor who conducted the postmortem examination was all the more crucial for the purposes of establishing whether death of Ashraf Jahan was homicidal or suicidal. The nonexamination of the doctor who conducted the postmortem examination is also a circumstance which certainly goes against the prosecution and weakens their case".
21 In view of the aforesaid observations of Modi, the medical evidence assumes importance in this case. The MLC of boy R.B. Shows that Dr. Rakesh Gupta who examined the boy in Surgery Department observes the injuries i.e. abrasion in the anal orifice, tone not decreased, P/R painful and........... (illegible) not present. MLC of accused Raj Kumar shows that no obvious external injury is seen on his person. His sexual characters were well developed. It was also observed that there was no semen or smegma seen with the genitals or under clothings. Doctor advised that semen samples of accused should be preserved and under garments should also be preserved. Doctor finally observed that there was nothing to suggest that the accused was incompetent to perform sexual intercourse. 22 Now, the first question arises whether the MLC of boy and accused have been proved on record in accordance with law or not. PW5 FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 11/ 16 Dr. Nishu Dhawan has been examined by prosecution who deposed that Dr. Vipin Mohanty who examined boy and accused in casualty had left the hospital. She further deposed that the boy was referred to surgery. Prosecution has also examined PW6 Desh Raj i.e. Record Clerk from the DDU Hospital. He deposed that Dr. Rakesh Gupta, who examined the boy and the accused in the surgery department, had left the hospital and there was no other doctor available in the Hospital who could identify the signatures and handwriting of Dr. Rakesh Gupta. In my opinion, prosecution has failed to prove the MLCs on record as per law in view of the aforesaid judgments mentioned by me. Inf act, the injuries on the body of boy have not been proved on record, in as much, Dr. Nishu Dhawan who was an expert did not depose about the injuries on the boy. Ld. APP has not asked from the doctor as to whether going by the injuries mentioned in the MLC, whether there was a case of sodomy was made out. Doctor was not asked to give her opinion after seeing the MLC of boy. The opinion of Dr. Nishu Dhawan would have been relevant evidence u/s. 47 of Evidence Act as she was an expert person in that particular field. Even no doctor has been examined in place of Dr. Rakesh Gupta and merely a record clerk has been examined. No efforts has been taken by prosecution to examine the concerned doctor or any other doctor. The opinion of the doctor has not been proved on the FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 12/ 16 record. In my opinion, prosecution was supposed to examine the concerned doctor or some other doctor, if the concerned doctor was not traceable. The prosecution has rather opted an easy way and was satisfied with the examination of the record clerk only. I have no doubt in find that the prosecution has failed to prove the medical evidence on record beyond reasonable doubt.
23 Perusal of chargesheet reveals that pants of boy and the swab sample was taken into possession by the IO and the same were sent to the FSL. However, what happened to the said result from the FSL is not known to anybody. No efforts has been made by the prosecution to file FSL Report on record. No supplementary chargesheet either was filed. In my opinion, FSL Report was the scientific evidence which was the best evidence to prove the case against the accused. It is well settled principle of law that the best evidence should be produced by the prosecution, however the same has not been done in this case for the reasons best known to the prosecution. By producing the FSL Result and by examining the FSL Expert, it could have been ascertained on record whether there was semen of accused or not on the swab. The scientific evidence is lacking in this case due to which benefit of doubt should go to accused.
FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 13/ 16 24 Moreover the story of the prosecution is not reliable. As per
the prosecution, the incident had happened on 15.02.1996. Statement of complainant shows that he told this incident to his father after one day who had brought him the police station. However in his cross examination, complainant stated that after the incident he came to his house from jhuggi of accused and told the incident to his family whereupon his father took him to Mandir. He further stated that he went to police station along with his father and stayed in the police station for half/one hour but no detailed inquiry was conducted from his father and the matter was compromised. He further stated that in the night when he felt pain, they again reached in police station where the case was registered. However, the testimony of the father of the boy, PW3, the complainant was in contradictions to the testimony of the boy. He deposed he took his son to police station on the next day of incident.
Moreover, there are contradictions in the fact whether the boy had met his father in his jhuggi or whether his father went to the house of accused. The boy had deposed that after the incident he directly reached to his house and told the same to his father whereas his father had deposed that he was told by one girl of the locality that the boy was crying in the house of the accused and he reached there after hearing the same.
FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 14/ 16 25 The incident in this case is of dated 15.02.1996 and the time
is about 11.30 AM. However the FIR was registered on 16.02.1996 at about 02.50 PM on the next day. The victim boy had stated that he alongwith his father remained in the police station for about one and half hours and the matter was compromised in the police station itself. It is beyond any comprehension as to what was compromised in the police station and why no prompt FIR was registered leaving the crucial evidence to be lost in this case. Had there been a prompt FIR and investigation thereto, the crucial evidence in the shape of presence of semen on the undergarments of the accused as well as the clothes of victim could have been obtained very easily. The anul swab of the victim would have shown the presence of semen of accused which could have been the most crucial evidence. Therefore, In my considered opinion, the prosecution by taking a chance so that these evidences are lost, has only weakened the case of prosecution. A reasonable doubt has crept in the story of prosecution which must be extended to the accused.
26 In view of the aforesaid oral and documentary evidence, I am of the considered opinion that the prosecution has miserably failed to prove the case against the accused for commission of offence U/s. 377 IPC.
FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 15/ 16 Accordingly, the accused deserves to be acquitted in this case. He stands acquitted for the offence U/s. 377 IPC. His previous B/Bs and the S/Bs are cancelled and discharged respectively. The B/Bs and the S/Bs furnished by the accused for the purposes of section 437A Cr.P.C shall remain extended for a period of six months from today.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e. ON 4th FEBRUARY, 2013 MM09:WEST:THC
DELHI:04.02.2013.
FIR No. 97/1996 STATE V/s RAJ KUMAR PAGE No. 16/ 16