Delhi District Court
State vs Pramod Kumar S/O Jagdish, on 21 October, 2011
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0374272010
Sessions Case No. 14/2011
Assigned to Sessions. 04.03.2011
Arguments heard on 20.10.2011
Date of order. 21.10.2011
FIR No. 519/2010
State Vs Pramod Kumar s/o Jagdish,
1. r/o Village Durga, Town plus PS
Jahangirabad, Distt. Bulandshahar, U.P.
Police Station Bhajanpura
Under Section 363/377/506 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off this case in which Station House Officer of Police Station Bhajanpura had filed a challan vide FIR No. 519/2010 dated 25.10.2010 u/s 363/367/377/506 IPC for the prosecution of accused Pramod Kumar in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. SC No.14/2011 State Vs. Pramod Kumar 1/12
2. Case of the prosecution is that on 25.10.2010 a DD No.20A Ex.PW6/A was recorded at police station Bhajanpura in connection of beating a boy near School, C 2, Yamuna Vihar, Delhi and same DD was marked to SI Dhan Singh and on receipt of said DD, SI Dhan Singh along with Ct. Jaswant and Ct. Sita Ram reached at spot i.e. in front of Government Boys Senior Secondary School at C2, Yamuna Vihar, Delhi where complainant Radhey Shyam Sharma had produced accused Pramod Kumar along with his two wheeler scooter. I.O. had recorded statement of complainant Radhey Shyam Sharma vide Ex.PW2/A and made endorsement upon the same vide Ex.PW6/D for registration of FIR and on the basis of said rukka Ex.PW3/A, FIR Ex.PW3/B u/s 363/367/377/506 IPC was registered against accused. During the course of investigation police arrested the accused Pramod Kumar.
3. On the basis of material available on record ld. Predecessor of this court vide order dated 29.01.2011 framed a charge against accused Pramod Kumar for the offence punishable u/s 363/377/506 IPC to which accused did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 06 witnesses namely PW1 Ishu Sharma @ Ishu, PW2 Sh. Radhey Shyam Sharma, PW3 SI Balbir Singh, PW4 Ct. Brijesh Kumar, PW5 Shubham and PW6 SI Dhan Singh.
5. PW1 Ishu Sharma @ Ishu is a material witness being victim. This witness has been examined by this court for ascertaining his knowledge and capacity of understanding SC No.14/2011 State Vs. Pramod Kumar 2/12 of this witness being child witness by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
6. This witness has been got declared hostile by Ld. APP for the State as this witness has not supported the prosecution on any count. This witness has been cross examined by the Ld. APP for the State and his statement Ex.PW1/B was confronted.
7. PW2 Sh. Radhey Shyam Sharma, father of victim/complainant. This witness is a hearsay witness. This witness has also been got declared hostile by Ld. APP for the State as this witness has also not supported the prosecution on any count. This witness has been cross examined by the Ld. APP for the State and his statement Ex.PW2/A was confronted.
8. PW3 SI Balbir Singh. This is the witness of registration of FIR. This witness was duty officer on 25.10.2010 and this witness had recorded FIR Ex.PW3/B u/s 363/367/377/506 IPC on receiving the rukka Ex.PW3/A through Ct. Jaswant.
9. PW4 Ct. Brijesh Kumar. This witness had got medically examined victim Subham from GTB Hospital vide MLC mark 'X' and doctor had delivered one sealed parcel along with sample seal to him which were seized by the I.O. vide seizure memo Ex.PW4/A. SC No.14/2011 State Vs. Pramod Kumar 3/12
10.PW5 Shubham is a material witness being victim. This witness has been examined by this court for ascertaining his knowledge and capacity of understanding of this witness being child witness by putting some questions and after getting reply on being satisfied that this child witness can understand questions and reply the same.
11.This witness has also been got declared hostile by Ld. APP for the State as this witness has also not supported the prosecution on any count. This witness has been cross examined by the Ld. APP for the State and his statement Ex.PW5/A was confronted. This witness has deposed that no incident had taken place with him in last year and he does not know the accused Pramod Kumar. This witness has also deposed that accused did not commit any wrong act with him and he did not take him any where.
12.PW6 Sub Inspector Dhan Singh is a material witness being Investigating Officer. On 25.10.2010 on receipt of DD No.20A, Ex.PW6/A in connection of beating to a boy Near School, C2, Yamuna Vihar, Delhi, this witness along with Ct. Jaswant and Ct. Sita Ram had reached at spot i.e. in front of Govt. Boys Senior Secondary School at C2, Yamuna Vihar, Delhi where complainant Radhey Shyam Sharma produced accused Pramod Kumar along with his two wheeler scooter.
13.This witness had took into possession two wheeler scooter and its keys vide seizure memo Ex.PW6/B. SC No.14/2011 State Vs. Pramod Kumar 4/12
14.This witness had prepared site plan of place of occurrence i.e. bushes, near Yamuna river, Sonia Vihar Pusta, Delhi vide seizure memo vide Ex.PW6/C. This witness had got medically examined accused vide MLC Ex.PW6/D and victim Ishu vide MLC Ex.6/E.
15.This witness had recorded statement of complainant Ex.PW2/A and made endorsement Ex.PW6/F upon the got FIR Ex.PW3/B registered through Ct. Sita Ram.
16.This witness has deposed that on 27.10.2010 SI Deepk had seized three sealed parcels and two sample seals vide seizure memo Ex.PW6/G.
17.During investigation, on 28.10.2010 this witness had seized one sealed parcel containing blood as sample of accused and one sample seal vide seizure memo Ex.PW6/H which was produced by Ct. Karamvir.
18.During investigation, this witness had got recorded statements of victim u/s 164 Cr.P.C. before Ld. MM vide Ex.PW1/A and Ex.PW5/B.
19.During investigation, on 04.11.2010 this witness had got medically examined victim Subham vide MLC Ex.PW6/I and seized two sealed parcels along with one sample seal which belongs to victim Subham vide seizure memo Ex.PW3/A on being produced by Ct. Brijesh Kumar.
SC No.14/2011 State Vs. Pramod Kumar 5/12
20.During investigation, on 30.11.2010 this witness had deposited sealed parcels containing exhibits of this case containing sample seal with FSL vide RC No.Ex.PW6/J.
21.This witness has proved arrest memo of accused Pramod Kumar vide Ex.PW2/B and his personal search memo vide Ex.PW2/C. This witness had collected certificate mark 'Y' pertaining to ages of both the victims and copy of attendance register of victim Ishu mark 'Z'. This witness had filed FSL report vide Ex.PW6/K. In his cross examination by ld. Defence counsel, this witness has denied that both the victim had been tutored by their family members before recording of their statements by Ld. MM u/s 164 Cr.P.C.
22.After examination of prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein the accused denied all the circumstances and evidence put to him and claimed to be innocent. He had not preferred to lead any defence evidence.
23.Thereafter, case was fixed for arguments.
ARGUMENTS:
24.Ld. APP for state, Sh. Zenual Abedeen argued that this is case of unnatural offence of minor victims. Ld. APP for the State further argued that on 23.10.2010 accused Pramod Kumar had taken one child boy at a deserted place behind the bushes of the bank of Yamuna river and sodomized the said boy. Complainant Radhey Shyam had SC No.14/2011 State Vs. Pramod Kumar 6/12 got recorded his statement Ex.PW2/A. Accordingly, FIR No.519/2010 dated 25.10.2010 Ex.PW3/B under section 363/367/377/506 IPC was registered against accused.
25.PW1 Ishu Sharma, victim, PW2 Sh. Radhey Shyam Sharma, father of victim and PW5 Shubham, victim have been won over. PW6 SI Dhan Singh is the investigating officer.
26.Ld. APP for the State further argued that PW3 SI Balbir Singh is a Duty Officer who had recorded FIR of the present case. PW4 Ct. Brijesh Kumar had got medically examined the victim Shubham and their statements are sufficient to convict the accused persons for offence charged as prosecution has proved its case beyond reasonable doubt.
27.On the other hand, Ld. counsel for accused submits that all material witnesses have been declared hostile by Ld. APP for the State.
28.On these grounds, Ld. counsel for accused is pressing for acquittal of accused persons.
29.Arguments heard. Record perused. On perusal of record it is revealed that on the statement of complainant Ex.PW2/A, FIR No.519/2010 dated 25.10.2010 Ex.PW3/B under section 363/367/377/506 IPC was recorded at police station SC No.14/2011 State Vs. Pramod Kumar 7/12 Bhajanpura against accused. Accordingly, accused Pramod Kumar was arrested vide arrest memo Ex.PW2/B and his personal search was conducted vide personal search memo Ex.PW2/C.
30.On perusal of record, it is further revealed that site plan Ex.PW6/C of the place of incident was prepared by the Investigating Officer at the instance of victim.
31.On perusal of record, it is further revealed that IO had taken into possession two wheeler scooter and its keys vide seizure memo Ex.PW6/B.
32.On perusal of record, it is further revealed that IO had got medically examined accused vide MLC Ex.PW6/D and victim Ishu vide MLC Ex.6/E.
33.On perusal of record, it is further revealed that on 27.10.2010 SI Deepak had seized three sealed parcels and two sample seals vide seizure memo Ex.PW6/G.
34.On perusal of record, it is further revealed that IO had seized one sealed parcel containing blood as sample of accused and one sample seal vide seizure memo Ex.PW6/H which was produced by Ct. Karamvir.
35.On perusal of record, it is further revealed that IO had got recorded statements of victim u/s 164 Cr.P.C. before Ld. MM vide Ex.PW1/A and Ex.PW5/B. SC No.14/2011 State Vs. Pramod Kumar 8/12
36.On perusal of record, it is further revealed that IO had got medically examined victim Subham vide MLC Ex.PW6/I and seized two sealed parcels along with one sample seal which belongs to victim Subham vide seizure memo Ex.PW3/A on being produced by Ct. Brijesh Kumar.
37.On perusal of record, it is further revealed that IO had deposited sealed parcels containing exhibits of this case containing sample seal with FSL vide RC No.Ex.PW6/J.
38.Further perusal of record shows that accused Pramod in his statement u/s 313 Cr.P.C. has deposed that he is innocent and have been falsely implicated in this case by police.
39.Before coming to any conclusion it would be relevant to discuss sections of charge. The relevant section of 363/377/506 IPC are being reproduced verbatim which is as under: Section 363 IPC: Punishment for kidnapping. Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 377 IPC "Unnatural offence : whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with ( imprisonment for life ), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable SC No.14/2011 State Vs. Pramod Kumar 9/12 to fine."
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
40.Having given careful consideration to the statements of PW1, PW2 and PW5, it is revealed that all these witnesses have not supported the prosecution case on any count. None of the public witnesses have deposed any word against the accused even PW1 and PW5 victims had denied to identified the accused as culprit who has done unnatural offence with them. PW5 and PW1 have not made any allegation against the accused for causing injury to him. This part of testimony of this material witness goes to the root of this case and cause to believe that these contradictions form the part of major contradictions. Since none of the public witnesses in their testimony pointed out towards the accused for commission of crime. Hence, these witnesses cannot be said to be reliable for prosecution. PW3, PW4 and PW6 are formal witnesses being official witnesses. On the point of major contradictions the Hon'ble Supreme Court of India in a case titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' has also observed the following facts that: SC No.14/2011 State Vs. Pramod Kumar 10/12
"When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
41.It is true that in terms of hostile witness creditability of entire evidence of such witness cannot be rendered unworthy of consideration merely because he has declared hostile but in the present case none of the prosecution witness has supported the case and in such circumstances it will not be safe to convict accused. Hon'ble High Court of Delhi, judgment dated 05.07.2006 in case titled as "Shafiquddin Vs. State, 199 200/2006".
"According to the prosecution case there was a quarrel between Shafiquddeen and Kallu whereas according to the Kallu himself there was no quarrel between him and Shafiquddeen and no person at any time abused him. In fact, PW2 Kallu went to the extent to say that he did not know with whom the quarrel had taken place and who had injured Abid. The said witness was declared hostile. It cannot be said beyond any shadow of doubt that the accused petitioners were guilty of the offence for which they have been convicted. "
42.Hon'ble Supreme Court in case "AIR 1976 SC 978", wherein it has held that:
"The evidence of witness should not be rejected outright. Such witness has no regard for truth. So the court should look for corroboration."
As in the fact of present case there is no corroborative evidence against accused to convict him.
SC No.14/2011 State Vs. Pramod Kumar 11/12
43.Since in this case none of the public witnesses have supported the prosecution case and they denied to identify the accused present in the court as culprit. Since, in this case none of the material witnesses has identified the accused persons. Therefore, all these facts and circumstances clearly indicate that prosecution has miserably failed to prove the offence u/s 363/377/506 IPC against accused beyond reasonable doubt. Therefore, this court acquit accused Pramod Kumar by giving him benefit of doubt for the offence u/s 363/377/506 IPC.
44.In terms of section 437 A Cr.P.C. and directions of Hon'ble High Court of Delhi, accused Pramod Kumar is directed to execute bail bond in sum of Rs.15,000/ with one surety in the like amount for the period of six months. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 21.10.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.14/2011 State Vs. Pramod Kumar 12/12 SC No.14/2011 State Vs. Pramod Kumar 13/12