Delhi District Court
State vs . Ghanshyam on 13 December, 2022
IN THE COURT OF AJAY SINGH PARIHAR
METROPOLITAN MAGISTRATE (NORTH WEST) : ROHINI, DELHI.
State Vs. Ghanshyam
FIR No. 482/98
PS Mangol Puri
Unique Case Identification No. 535224/16
JUDGMENT
(a) Sr. No. of the case 1027/2 (b) Date of offence 27.05.1998
(c) Accused person 1. Ghanshyam S/o. Sh. Shaitan Singh, R/o. A-706, Sector 2,Rohini, Delhi.
2. Sachin S/o. Sh. Anil Sethi, R/o. A-700, Sector 2, Rohini, Delhi.
(d) Offences Under Section 363/377/506(II)/34 IPC (e) Plea of accused Pleaded not guilty. (f) Final Order Acquitted (g) Date of institution 16.03.1999 (h) Date of judgment 13.12.2022
1. The allegations against the accused as detailed in the charge-sheet are that on 27.05.1998 accused Ghanshyam and Sachin (being juvenile) in furtherance of their common intention kidnapped complainant/ victim or enticed away from his lawful guardianship without his consent and took him to a roof adjacent to House No. A-706, Sector 2, Rohini, Delhi and had carnal intercourse with complainant against the order of nature and criminally intimidated the complainant by threatening him to kill with FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 1/12 intent to cause alarm to him and therefore they were prosecuted for commission of offences punishable under section 363/34, 377/34 and 506(II) IPC.
2. On the basis of aforesaid allegations FIR bearing no. 482/98 was lodged under section 363/377/506(II)/34 IPC. After investigation charge- sheet was filed for commission of offences under aforesaid sections. Charge was framed against accused Ghanshyam for commission of of- fences under sections 363/377/506(II)/34 IPC on 15.05.2001. However, thereafter vide order dt. 12.04.2002, it was observed by Ld. Predecessor that challan with respect to accused Sachin was filed before the Juvenile Court by the IO and Juvenile Court vide order dt. 23.05.2000, transferred the case and hence, on appearance of accused Sachin, fresh charge against accused Ghanshyam and Sachin was framed for commission of offences under sections 363/377/506(II)/34 IPC on 12.04.2002 to which, both the accused pleaded not guilty and claimed trial.
3. In order to prove above allegations against accused prosecution ex- amined as many as six witnesses.
PW-1 ASI Somna being Duty Officer was examined and has proved the registration of FIR Ex.PW1/A. PW-1 was not cross-examined by Ld. Defence counsel despite grant of an opportunity in this regard.
PW-1 (wrongly renumbered as PW-1 as ASI Somna was examined as PW-1 on 18.12.2001) Ct. Krishan Kumar has deposed that on 30.05.98, ASI Rama Nand received a DD No.10-A and he alongwith him reached at H.No. A-407, Sector 2, Rohini, Delhi but no incident was found to have been committed there. When they reached near A-706, Sector 2, Rohini, upon further enquiries, they found a gathering of people. PW-1 deposed FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 2/12 that one complainant/ victim and his father Prahlad were also present there and complainant / victim got recorded his statement to the IO and IO prepared tehrir and PW-1 went to PS and got the case registered and returned at the spot and handed over tehrir and copy of FIR to IO. There- after, accused persons present in Court on that day were arrested vide Ex.PW1/A and PW1/B. PW-1 was not cross-examined by Ld. Defence counsel despite grant of an opportunity in this regard.
It is pertinent to mention here that upon allowing of application u/s. 311 Cr.P.C, PW-1 was duly cross-examined by Ld. Defence counsel on 02.04.2022.
PW-2 Ct. Bhagwan Dass was examined, who deposed that on 30.05.1998, he alongwith Ct. Kishan took Sachin, complainant / victim and Prahlad to DDU hospital and got conducted their medical examina- tion and their medical reports were handed over to IO.
PW-2 was duly been cross-examined by Ld. Defence counsels.
PW-3 Sh. J.C. Vashisht being Record Clerk, DDU Hospital has de- posed on behalf of Dr. Bhuvnesh and Dr. A. Arora as they had left the hospital and their whereabouts were not known. PW-3 further deposed that he had seen the MLC No.004718 dt. 23.05.1998 in respect of com- plainant / victim prepared by Dr. Bhuvnesh Kumar Gupta and surgery notes given by Dr. A. Arora. Witness identified the writing and signature of both aforesaid doctors during the course of his duty and MLC was ex- hibited as Ex.PW3/A. PW-3 also proved MLC No.004715 and 004716 in respect of injured Ghanshyam and Sachin Sethi respectively. Both the aforesaid MLCs were prepared by Dr. Alok Kumar and surgery notes were given by Dr. A.Arora. The MLC of Ghanshyam is Ex.PW3/B bearing signa-
FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 3/12tures of Dr. Alok Kumar and Dr. A.Arora. The MLC of Sachin Sethi is mark A. Both the doctors had left the hospital and their whereabouts were not known.
PW-3 was duly cross-examined by Ld. Defence counsel for accused Ghanshyam and PW-3 was not cross-examined by Ld. Defence counsel for accused Sachin Sethi despite grant of an opportunity in this regard.
PW-4 complainant/ victim has deposed that on 27.05.1998, he was studying in 5th class and was residing at premises no. A-665, Sector 2, Avantika, Rohini, Delhi alongwith his parents and brothers. PW-4 further deposed that his father was working as transporter in Punjabi Bagh. PW- 4 deposed that on the day of incident in question i.e. 27.05.1998 in the evening at about 9.00 PM while he was playing in the front lawn of afore- said residence at Avantika, one boy namely Ghanshyam present in the court on that day (correctly identified) who resided at A-706, Sector-2, Avantika, Rohini, came to him and asked PW-4 to go with him and he would get PW-4 toffee. Thereupon PW-4 believed him and went with him. At some distance, accused Ghanshyam met with his associate namely Sachin Sethi (correctly identified on that day) R/o A-700, Sector-2, Avan- tika, Rohini and they both took PW-4 on the roof of nearby house of Ghanshyam. At that time, the light was not there as it has already gone so that it was dark. PW-4 further deposed that first of all, Ghanshyam took off his worn pent and took out his penis and forcefully took off the wearing nicker of PW-4 and tried to insert his pens into his anus after erecting it. Thereupon PW-4 had tried to raise alarm but his mouth was closed and his associate Sachin Sethi got caught hold PW-4 and Ghan- shyam put his penis into the mouth of PW-4 for a long time and left some thicky and waterly substance into mouth of PW-4, then Ghanshyam got caught hold of PW-4 and Sachin Sethi also took off his worn pent and took out his penis and after erecting it kept it into the mouth of PW-4 for FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 4/12 a long time. PW-4 further deposed that after quite a lot of time, he was left by them there after giving threat for dire consequences that if PW-4 told it to anybody they would be kill him and his family members. Due to fear of his life and that of his family members, PW-4 had not narrated the facts of the said incident to his father and also to his other family mem- bers on that day. On 30.05.1998 when he was tried to chase again by the said both accused persons for the said purpose the whole incident was narrated by PW-4 to his father who had informed telephonically to the po- lice and one police official had come to PW-4 at his residence, where he narrated the whole above incident to that police official who had recorded his statement Ex. PW4/A. Thereafter PW-4 alongwith his father and that police official had gone to PS Mangol Puri, from where, PW-4 was taken by that police official to DDU Hospital, Hari Nagar, where he was thoroughly medically examined by the doctor concerned. Both the ac- cused persons present in the court on that day were correctly identified being the culprits of the offence in question who had caused the carnal intercourse and above bad act forcefully and against the wish and con- sent of PW-4. PW-4 further deposed that during proceedings except recording of his statement, the place of incident was inspected and the site plan mark A was prepared at instance of PW-4 by the IO of this case.
PW-4 was not cross-examined by Ld. Defence counsel despite grant of an opportunity in this regard.
It is pertinent to mention here that upon allowing of application u/s. 311 Cr.P.C, PW4 was duly cross-examined by Ld. Defence counsel on 28.05.2022.
PW-5 Retd. SI Ramanand has deposed that on 30.05.98, he was on emergency duty from 8.00 a.m to 8.00 p.m alongwith Ct. Kishan Kumar and during the same on the receipt of DD No. 10-A Ex. PW5/A, he along- with said constable reached at the place of incident i.e. a roof of adjacent FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 5/12 of house no. A-706, Sector -2, Avantika, Rohini where complainant / vic- tim was found present alongwith his father Prahlad Pd Gaur. Com- plainant/ Victim was examined about the incident in question and what- soever he had stated about the incident in question, the same was re- duced into writing i.e. his statement Ex.PW5/A. On the basis of his state- ment, PW-5 prepared rukka Ex.PW5/B and same was handed over to Ct. Kishan Kumar who got registered the present case and had come at the spot with copy of FIR and its original rukka which, he received. During the investigation of this case, PW-5 alongwith victim and his father reached at the place of incident where he prepared site plan Ex. PW5/C at the instance of complainant/ victim and he was got medically exam- ined at DDU Hospital. PW-5 had tried his best to inquire about the inci- dent from the neighbourhood from the place of incident but none had given their statements including the owner of house no. A-706. PW-5 tried to trace out the accused persons. On the same day, i.e on 30.05.98, when PW-5 reached at near house no. 665 along with father of the victim where a secret informer met & informed about the presence of culprits of offence in question namely Ghan Shyam and Sachin Sethi in the market of Avantika Rohini. On the receipt of said information, he alongwith father of victim reached at Avantika Mkt where at the instance /pointing out of father of the victim, both accused persons Ghan Shyam & Sachin Sethi (correctly identifled on that day) were apprehended. PW-5 further de- posed that in the meantime Ct. Kishan Kumar came there along with complainant / victim and PW-5 telephonically called the Ct. Ghan Shyam there and both accused were got medically examined at DDU Hospital af- ter their arrest and personal search vide memo of arrest and personal search Ex.PW1/A and PW1/B. PW-5 further deposed that during the pro- ceedings it had come to his notice that the accused Sachin Sethi was mi- nor at the time of incident so that the matter was put up before the court concerned for issuance any appropriate directions wherein the concerned FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 6/12 court had decided to sent back this matter to the court concerned by the court of Ld ACMM, Tis Hazari Court. Accused Sachin Sethi was declared major by the court concerned. After completion of investigation, includ- ing the recording of statements of all relevant witnesses and obtaining the all requisite medical documents challan was prepared and it was filed in the court on behalf of the SHO concerned.
PW-5 was duly cross-examined by Ld. Defence counsel for accused Sachin, though, not cross-examined by Ld. Defence counsel for accused Ghanshyam despite grant of an opportunity in this regard.
4. After completion of prosecution evidence all incriminating evi- dences were put to accused persons under sec 313 Cr.P.C. Accused per- sons stated in their statement under sec 313 Cr.P.C that they had been falsely implicated in the present case at the instance of parents of com- plainant/ victim because prior to the day of alleged incidence, a fight took place between them and father of complainant and denied allega- tions.
ANALYSIS AND FINDINGS
5. Ld. APP for State submitted that prosecution has been successful in proving guilt against accused persons beyond reasonable doubt as victim PW4 has corroborated his complaint Ex PW4/A and has correctly identi- fied the accused persons. Per contra Learned counsel for the accused has submitted that victim PW4 during his cross-examination has turned hos- tile qua accused sachin and has categorically denied recording of his statement by police official. It is argued that the testimony of victim PW4 cannot be relied as he has turned hostile and denied his statement which is the basis of registration of FIR against the accused persons. It is further argued that except victim PW4 there is no other independent witness ex- amined by the prosecution. It is submitted by the learned counsel that FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 7/12 PW1 Ct. Krishan Kumar during his cross-examination has stated that both the accused were arrested from their respective houses however PW5 IO retired SI Ramanand has stated in his cross-examination that both ac- cused were arrested on secret information from Avantika market. It is fur- ther argued by the learned counsel that prosecution has failed to explain the delay in registration of FIR are as date of offence is 27/05/1998 whereas complaint was filed on 30/05/1998. Ld. defense counsel submit- ted that prosecution remained unsuccessful in proving that accused per- sons had commited aforesaid offence. Ld. defence counsel further sub- mitted that accused persons were falsely implicated as prior to the day of alleged incidence, a fight took place between accused persons and father of complainant.
6. The prosecution case solely rest on the testimony of PW4 who is the victim in the present case. As per the prosecution case, the FIR was reg- istered on the basis of complaint Ex PW4/A made by victim PW4 where in victim has narrated whole incident. PW4 during his examination in chief has reiterated the prosecution story at the same time corroborating the complaint exhibit PW4/A. However, during cross-examination, PW4 turned hostile qua accused sachin and totally absolved him from the of- fences charged against him. It is pointed out by Ld. defence counsel that PW4 in his examination in chief has stated that his statement was recorded by police official, however, during cross-examination PW4 has stated that his statement was not recorded by police official rather state- ment of his father was recorded by police officials. PW4 was further cross-examined by Ld. APP. Specific questions were put to the victim PW4 by Ld. APP which are reproduced alongwith answer given by PW4.
"Ques. - In your chief examination recorded on 27.10.2010, you have de- posed accused Sachin Sethi took off his wearing pant and took out his penis and after erecting it keep it in into my mouth for a long time. But FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 8/12 now in your cross-examination you have deposed that accused Sachin had not committed any unnatural sex and put his penis into my mouth, which of these two statement is correct.
Ans- Today I have deposed correctly in my cross examination.
Ques.- In your chief examination recorded on 27.10.2010, you have de- posed your statement exhibit PW 4/A was recorded but now you have de- posed in your cross examination that your statement was not recorded, Which of the statement is correct.
Ans- Today I have deposed correctly in my cross examination."
It is clear from the cross examination that PW4 turned hostile and has de- nied the role of accused sachin and at the same time denied his com- plaint Ex PW4/A. Hon'ble Supreme Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567 has held that evidence of hostile witness can not be re- jected as a whole and relevant parts of such testimony can be used by ei- ther of the parties to a case, relevant paras are reproduced hereunder:
"81. It is settled legal proposition that:
"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be ac- cepted to the extent their version is found to be dependable on a careful scrutiny thereof." (Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC 627, SCC p. 635, para 6.)
82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360:
1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evi- dence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 9/12 has been reiterated by this Court in Balu Sonba Shinde v. State of Maha- rashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106].
83. Thus, the law can be summarised to the effect that the evi-
dence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecu- tion or the defence."
7. Hence, testimony of hostile witness can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case PW4 during his cross-examination stated that his state- ment was recorded in the court on 27/10/2010. It is further stated that he was accompanied by a police officer and that police officer tutored him about the statement to be given in the court. It is further stated by PW4 in his cross-examination that he made earlier statement in the court on the asking of police officer who accompanied him to the court however the PW4 did not remember the name of police officer. Apart from the above statement, PW4 in his cross-examination turned hostile qua ac- cused sachin and also denied his complaint Ex PW4/A. In such circum- stances it has to be seen whether evidence of PW4 can be relied.
Hon'ble Supreme Court in Rajesh Yadav & Anr. etc. Versus State of U.P has held regarding reliability of evidence in following terms:
"20. We have already indicated different classification of evidence. While appreciating the evidence as aforesaid along with the matters at- tached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly re- liable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evi- dence is not believable. When evidence produced is neither wholly reli- able nor wholly unreliable, it might require corroboration, and in such a FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 10/12 case, court can also take note of the contradictions available in other matters."
8. In the present case PW4 has in part favoured the prosecution and in part favoured the defence hence the evidence of PW4 falls in third cate- gory which is "neither wholly reliable nor wholly unreliable". In such cir- cumstances there is a need for corroboration from other witnesses. The father of PW4 was a witness in the case however he could not be exam- ined as he expired during the proceedings. Apart from victim and his fa- ther there are only official witness. The testimony of PW4 in favour of prosecution could have been corroborated from complaint Ex PW4/A how- ever PW4 has categorically denied recording of complaint Ex PW4 /A. Since the victim PW4 admitted that his statement in his examination in chief was a result of tutoring by a police officer his whole evidence has become doubtful and it will not be prudent or justified to rely on such tes- timony.
9. Apart from the victim PW4, there are only official witnesses. PW5 is the IO of the case and PW1 accompanied IO during investigation. No fruitful purpose shall be served by going into the testimony of these wit- nesses as the evidence of victim PW4 is unreliable. Even if testimony of these witnesses are accepted in toto then also the burden of proof rest- ing on the prosecution cannot be discharged in the absence of reliable evidence of victim.
10. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 11/12 well settled that in case of doubt, the benefit must necessarily be al- lowed to the accused.
11. In light of above discussion, it can be safely said that prosecution has remain unsuccessful in proving guilt of both accused persons be- yond reasonable doubt. Therefore benefit of doubt is hereby given to both accused persons and both accused persons are hereby acquitted for charges of commission of offence under Section 363/34, 377/34 and 506(II) IPC.
AJAY SINGH Digitally signed by AJAY
SINGH PARIHAR
PARIHAR Date: 2022.12.15 16:41:06
+05'30'
(Ajay Singh Parihar)
Metropolitan Magistrate (North West)
Rohini Courts : Delhi
Announced in the open court on 13.12.2022
FIR No. 482/98 State Vs. Ghanshyam & Anr. Page No. 12/12