Delhi District Court
In Re: State vs Vinay Chauhan on 4 July, 2013
IN THE COURT GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
EAST DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS VINAY CHAUHAN
F.I.R. No: 244/08
U/s 377 IPC
P.S. Sarita Vihar
Date of Institution of Case : 11.07.2000
Date of Judgment Reserved for : 04.07.2013
Date of Judgment : 04.07.2013
JUDGMENT:
(a) The serial no. of the case : 324/2/10
(b) The date of commission of offence : 24.04.2008
(c) The name of complainant : Tarun Kumar s/o Shyam Rao
(d) The name, parentage of accused : Vinay Chauhan s/o Ram Prasad
Chauhan, R/o B1/297, JJ
Colony, Madanpur Khadar, New
Delhi.
Present Address :As above
(e) The offence complained of : 377 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 04.07.2013
FIR No. 244/08 State Vs. Vinay Chauhan 1/11
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 24.04.2008 in public toilet at B1 Block, JJ Colony, Madanpur Khadar, New Delhi, within the jurisdiction of PS Sarita Vihar, accused Vinay Chauhan committed carnal intercourse against the order of nature with complainant Tarun Kumar and thus thereby the accused committed offence punishable u/s 377 IPC.
2. Charge sheet filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 03.09.2008 charge u/s 377 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined seven witnesses, thereafter the PE in the matter was closed and the statement of accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Tarun Kumar deposed that he does not remember the exact date but it was fifth month of current year at about 08.30 p.m. the light had gone and there was complete dark and he was playing along with his friend in Gali near his house. He deposed that one boy came and asked him to come for toilet FIR No. 244/08 State Vs. Vinay Chauhan 2/11 and they went to toilet opposite their gali there he committed carnal intercourse against the order of nature on him against his consent. He deposed that he also criminally intimidated to kill him. He deposed that blood was oozing out from his rectum. He deposed that he was wearing white colour shirt, pant and undergarment and his clothes were having blood stain marks. He deposed that he was taken to hospital. He deposed that threat was extended to him at that time by that boy. He deposed that his mother noticed and he explained the whole incident to her and her mother informed his father. He deposed that police was called by his father by dialing 100 number. He deposed that they suspected one person and he can identify the said person. He deposed that accused is not the same person who committed bad act upon him. He deposed that he was medically examined and accused was sent to jail. He deposed that he had shown the spot of occurrence to the police and site plan Ex. PW1/A was prepared at his instance. He deposed that police recorded his statement Ex. PW1/B. He deposed that he does not remember whether he read the statement but he had explained the entire incident to the police. He deposed that the person apprehended had not made any disclosure statement/confession statement in his presence. He deposed that he had not seen the face of accused who had committed bad act upon him. He deposed that the person apprehended at his instance is not present in the court. He admitted that disclosure statement Ex. PW1/C bears his signature at point A and pointing out memo Ex. PW1/D bears his signature at point A. He also admitted that arrest memo Ex. PW1/F and personal search memo Ex. PW1/G bear his signature at point A. He FIR No. 244/08 State Vs. Vinay Chauhan 3/11 deposed that he had not seen the face of accused.
5. Thereafter Ld. APP cross examined the witness after declaring him hostile. During his cross examination conducted by Ld. APP he denied the suggestion that accused Vinay is the same person who committed carnal intercourse against the order of nature upon him or that he is not identifying him in the court since he has been won over by the accused or his relatives. He stated that the light came after half an hour. He denied the suggestion that he had named accused Vinay in his statement Ex. PW1/B. He stated that accused Vinay is not known to him. He stated that he had not gone for toilet on asking of anyone prior to the incident. He admitted that he usually go for toilet along with known person. He stated that his underwear, pant and shirt was taken by the police and he can identify them if shown to him. He denied the suggestion that he was deposing falsely to shield the accused.
6. During his cross examination conducted by Ld. Defence counsel he admitted that police had got plain papers signed by him in the police station. He admitted that he had not read the papers which the police got him signed.
7. To the court question he replied that he was not tutored by anyone to depose in the court.
8. PW2 ASI Manohar Lal deposed that on 25.04.2008 he was posted as FIR No. 244/08 State Vs. Vinay Chauhan 4/11 Duty Officer at PS Sarita Vihar and on that day he registered the present case FIR i.e. Ex. PW2/A on receipt of rukka from Constable Keshav Dutt sent by HC Sukhpal Singh. His endorsement on the rukka is Ex. PW2/B.
9. PW3 Ct. Keshav Dutt deposed that on 24.04.08 he was posted at PS Sarita Vihar , PP Madanpur Khadar as Ct and on that day he was on night duty from 8 PM to 8 AM and at about 11 PM a PCR call was received. He deposed that he along with HC Sukhpal Singh went to the spot at B1/375, J. J. Colony, Madan Pur Khadar and at the spot victim Tarun and his father were found present. He deposed that Sunil , Vinay and Tarun were taken to AIIMS hospital for medical examination. He deposed that IO obtained the MLCs. He deposed that IO gave him a rukka for the registration of FIR and he I went to PS and got the FIR registered and came back at the spot with the original rukka and copy of FIR and SI Rajeev Ranjan who was entrusted for further investigation. He deposed that HC Sukhpal handed over the pullandas to the IO. He deposed that they all went to the place of the incident i.e public toilet of B1, J. J. Colony. He deposed that after inspection of the spot accused Sunil and Vinay Chauhan were arrested. He deposed that accused Sunil was arrested. He again said accused Vinay Chauhan wwas arrested and his personal search was conducted vide memo Ex. PW1/F and G. He deposed that IO recorded his statement .
10. During his cross examination by Ld. APP he admitted that Sample pullandas were seized by the IO vide memo Ex. PW5/A, B and C. He stated that FIR No. 244/08 State Vs. Vinay Chauhan 5/11 accused made the disclosure statement i.e. Ex. PW1/C. He stated that accused also pointed out the place of incident and pointing out memo is Ex PW1/D. He admitted that accused Sunil was also involved in this case and was arrested as he was minor therefore, he was sent for trial before JJB. He denied the suggestion that he has not deposed completely and properly and has been won over by the accused. He stated that it is only due to lapse of the time and the fact that accused was sent to JJB later on.
11. During his cross examination by Ld. Defence counsel he stated that the information was received by HC Sukhpal Singh . He stated that ASI Manohar Lal was the duty officer on the day he took the rukka. He stated that the accused was arrested from B1, block toilet. He stated that Juvenile Sunil was also arrested from the B1 block toilet. He denied the suggestion that accused Vinay was arrested in PP M. P. Khadar. He denied the suggestion that he did not join the investigation at any point of time and had signed the relevant papers in the police station. He denied the suggestion no disclosure statement was given by the accused. He stated that his statement was recorded on 25.04.08. He stated that today before deposing before the Hon. Court he had gone through his statement . He denied the suggestion that he was deposing falsely. He denied the suggestion that accused did not commit any offence or that he has been falsely implicated. He denied the suggestion site plan was not prepared at the instance of accused. He denied the suggestion that accused was summoned by the IO in the police station and thereafter implicated in this FIR No. 244/08 State Vs. Vinay Chauhan 6/11 case. He denied the suggestion there were some family dispute in between the family of Tarun Kumar and that of accused Vinay and because of that accused Vinay has been falsely implicated. He stated that he cannot tell whether any public persons were present at B1 toilet at the time they reached at the spot. He admitted that block B1 toilet was situated at a crowded place. He stated that the IO asked few public persons to join the investigation however, none agreed for. He stated that he cannot tell the name and address of public persons. He stated that he cannot tell whether IO gave any notice to the public persons or not .
12. PW4 HC Baljor Singh deposed that on 27.05.2008 he was posted as MHCM in PS Sarita Vihar and as per the directions of the IO he gave the sample duly sealed to the IO for FSL Rohini vide RC no. 87/21 dated 27.05.2008. He deposed that case property was intact till it remained in his custody. He deposed that IO recorded his statement.
13. PW5 Dr. Akhilesh Raj duly proved the MLC no. 34105/08 and 34107/08 prepared by Dr. Sushil Sharma as Ex. PW5/A and Ex. PW5/B.
14. PW6 HC Sukhpal and PW7 SI Rajeev Ranjan have deposed on the same lines as deposed by PW3 Constable Keshav Dutt.
15. This so far is the prosecution evidence.
FIR No. 244/08 State Vs. Vinay Chauhan 7/11
16. I have heard the arguments advanced at bar by the accused as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
17. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
18. Complainant/victim Tarun Kumar was the star/material prosecution witness however his deposition proved to be of no help to the prosecution and rather it created serious doubts upon the prosecution case. He was examined as PW1 however he turned hostile on material particulars and gave an absolute clean chit to the accused. It was his complaint Ex. PW1/B which had formed the basis of present FIR/prosecution against the accused however during his testimony he categorically denied the involvement of accused Vinay Chauhan in the crime. On account of his turning hostile the identity of the accused as the perpetrator of the crime could not be established. In fact Tarun Kumar vehemently denied that it was accused Vinay Chauhan who had committed carnal intercourse upon him against the order of the nature or criminally intimidated him as alleged by the prosecution.
19. The relevant portion of deposition of complainant/victim Tarun Kumar which casted serious doubts upon the prosecution case are reproduced FIR No. 244/08 State Vs. Vinay Chauhan 8/11 hereunder:
"we suspected one person and I can identify the said person however he was not the same person who committed bad act upon me...............The person apprehended in (at) my stance(instance) is not present in the court....................I had not seen the face of the accused".
During his cross examination by Ld. APP he stated as under:
"....... It is wrong to suggest that accused Vinay is present the same person who committed carnal intercourse against the order of nature upon my person................It is wrong to suggest that I had named accused Vinay in my statement Ex. PW1/B"
During his cross examination by Ld. Defence counsel he stated as under:
"It is correct that the police have got plain papers signed by me in the police station".
20. Deposition of complainant/victim Tarun Kumar in terms of the prosecution story was sine qua non for brining home the guilt against the accused however he himself rendered it untrustworthy and unreliable. His turning hostile proved fatal and sounded death knell for the prosecution case as there is no other eye witness of the alleged incident.
21. Prosecution had proposed to examine 8 witnesses in all and apart FIR No. 244/08 State Vs. Vinay Chauhan 9/11 from the complainant the remaining witnesses proposed to be examined are formal/official witnesses who came into the picture only after the alleged incident had occurred and information in this regard was received by them. None amongst them is the eye witness of the incident. Accordingly their deposition is insufficient to nail the accused and there shall always be shadow of doubts upon the prosecution story.
22. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
and "must be true".
23. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. (Criminal) 662).
24. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some FIR No. 244/08 State Vs. Vinay Chauhan 10/11 statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
25. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
26. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 04.07.2013 MM (SE)/Delhi
FIR No. 244/08 State Vs. Vinay Chauhan 11/11
F.I.R. No: 244/08
U/s 377 IPC
P.S. Sarita Vihar
04.07.2013
Pr: Ld. APP for State.
Accused Vinay Chauhan is on bail present today.
I have gone through my last orders. However records reveals that the complainant turned hostile on material particulars. Statement of accused has already been recorded by Ld. Predecessor of this court vide proceedings dated 31.01.2013.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437 Cr.P.C. furnished, considered and accepted.
File be consigned to Record Room.
(Gaurav Rao) MM (SE)/Delhi.
04.07.2013
FIR No. 244/08 State Vs. Vinay Chauhan 12/11
FIR No. 244/08 State Vs. Vinay Chauhan 13/11