Delhi District Court
State vs Harish Kumar on 20 September, 2018
IN THE COURT OF MS. NABEELA WALI, MM (East)
KARKARDOOMA COURTS, DELHI
FIR No. : 616/04
Case No. : 5519/2016
PS : Shakarpur
Offence Complained of : 377 IPC
Date of commission of Offence : 31.08.2004
Unique Case I.D. No. : 02402R0009481997
Serial No. : 2041/2009
JUDGMENT
STATE VS HARISH KUMAR Harish Kumar, S/o Sh. Gajpal Singh, R/o House No. 370, 2nd Floor, West Guru Angad Nagar, Laxmi Nagar, Delhi ......................Accused Sh. Suraj Kumar S/o Sh. Gauri Shankar, R/o 8-A, DDA Flat, Priyadarshini Vihar, Laxmi Nagar, Delhi ................Complainant Date of Institution : 23.10.2004 Plea of the accused : Pleaded not guilty Date of reserving judgment/order : 29.08.2018 Date of pronouncement : 20.09.2018 Final order : Acquitted Brief reasons for the decision of the case: -
1. In brief, the facts of prosecution case are that on 31.08.2004 at about 1.30 P.M. at vacant flat, Priyadarshini Vihar, Delhi, accused Harish Kumar voluntarily had carnal intercourse against the order of FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7 nature with complainant Suraj Kumar.
2. Accordingly, on the complaint dated 31.08.2004 of complainant Suraj Kumar, the present FIR was registered against the accused for offences punishable u/s 377 IPC. After completion of investigation, charge Sheet was filed against the accused for offence punishable U/S 377 IPC and cognizance of the offence was taken on the same day.
3. Charge was framed against the accused for offence punishable u/s 377 IPC on 02.07.2005 to which accused pleaded not guilty and claimed trial.
4. During, prosecution evidence 08 witnesses were examined by the prosecution. Dr. S.B. Jangpangi, CMO, LBS Hospital, Delhi was examined as PW1. As per PW-1, on local examination of the complainant he found the observations at point A, B, & C on MLC No. 7019/04 which is Ex. PW 1/A. The witness deposed that after local examination complainant was referred to Forensic Expert for opinion and he also collected the anal swab of the patient and sealed it with the hospital seal and handed over the same to the IO alongwith the MLC.
5. Mr. Gori Shanker, father of the complainant, deposed as PW2. He stated that on 31.08.2004, at about 2.15 pm while he was at work, his wife telephonically informed that his son master Suraj was weeping. As per PW-2, he came to his house and found that his son FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7 was weeping and bleeding from his anus. As per PW-2, he inquired, from his son, who told him that one boy had taken him for playing in a vacant DDA flat and forcibly done sodomy with him and also threatened to kill him, if he raised alarm. As per PW-2,he went to the police station with his son,who was then taken to the hospital by the police. As per PW-2, the doctor handed over the sample to to the police in his presence and the police seized it vide seizure memo Ex.
PW 2/A, bearing his signature at point 'A. The witness was cross- examined by Ld. APP for the State after taking permission of the court, and during his cross-examination by Ld. APP, the witness admitted his signatures at point A on arrest memo Ex. PW 2/B and personal Search memo of accused Ex. PW 2/C. PW-2 was also cross-examined by counsel for the accused.
6. Smt. Janakai was examined as PW-3 who deposed on similar lines as PW-2. She further identified one gauze cloth which is Ex. P-1. PW-3 was also cross-examined by counsel for the accused.
7. The Complainant, in the present case was examined as PW-4.
During his chief, he stated that he does not remember anything about the incident. He was thus cross-examined by Ld. APP for the State wherein he stated that he could not identify the accused due to lapse of time. PW-4 further stated that he does not remember if he had visited the residence of the accused along with his father and had identified the accused. Ld. counsel for the accused did not cross-examine the witness despite opportunity.
FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7
8. ASI Suraj Pal deposed as PW6 and stated that on 31/08/2004, he was posted at P.S. Shakarpur and ASI Narender had handed over one rukka on receipt of which he recorded the formal FIR 616/2004 which is Ex.PW6/A(OSR). HC Ramesh was examined as PW-7 who had brought the register, showing entry of deposit of sealed bottle/vial with MHC(M), which was subsequently sent to FSL. Entry in this regard is Ex. PW7/A.
9. Retired IO/SI Narender Singh was examined as PW-5, who deposed that on 31.08.2004, he received complaint Ex. PW-4/A, thereafter, which he took the complainant to the hospital for medical examination. Thereafter, as per the IO he prepared the site plan Ex. PW-5/B. PW-5 also deposed that accused was arrested at the instance of the complainant on 02.09.2004. As per the IO he collected three samples of exhibits from LBS hospital, vide memo Ex. PW-5/D of the accused and thereafter prepared the pointing out memo Ex. PW-5/E. PW-5 was extensively cross-examined by the counsel for the accused. PW-8, HC Pratap Singh who had joined the investigation with the IO , also deposed on the similar lines. He too was cross-examined by the defence counsel.
10. Thereafter, PE was closed. Statement of accused was recorded U/S 313 Cr.P.C, read with Section 281 Cr.P.C. wherein accused denied committing any such offence. Accused stated that he was called at the police station and was thereafter arrested. He denied the fact that he was arrested from his house. Accused stated that he is innocent and has been falsely implicated in this case. No defence evidence was however led by the accused.
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11. Thereafter, final arguments were addressed by both sides. Ld. APP prayed for conviction of the accused on the strength of prosecution evidence. He stated that case of the prosecution against the accused, is proved beyond reasonable doubt as PW-2 and PW-5 have identified the accused, in the Court.
12. On the other hand, Ld. Defence counsel argued that the case against the accused stands not proved. He argued that no statement under Section 164 Cr. P.C. of the complainant has been recorded. He further argued that no TIP of the accused was conducted and that complainant has not supported the case of the prosecution.
13. Submissions heard and record perused. In the instant case, the accused has been charged for offences punishable U/S 377/506 IPC. The said section read as under:-
377. Unnatural offences.--Whoever voluntarily has carnal inter-
course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.--Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
14. In light of the above provision, let us first examine whether the complainant was subjected to any sexual assault as alleged? The complainant who was examined as PW-4 stated that he does not FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7 remember anything due to lapse of time. However, PW-2 and PW-3 in their examination in chief stated that on 31.08.2004 their son i.e. PW-4 had told them that one boy had forcibly done sodomy with him. MLC of complainant which is Ex. PW-1/A mentions about linear laceration at anal verge. Thus, the MLC of the complainanant establishes that some sort of assault sexual or otherwise had taken place with the complainant. It is now to be examined whether such assault, which is alleged to be sexual was committed by the accused or not.
15. The complainant in the present case did not support the case of the prosecution and was thus cross-examined by Ld. APP for the State. PW-4 therein stated that he could not tell if the accused present in the Court was the same person who had carnal intercourse with him on 31.08.2004. He further state that he does not remember the face of the accused due to lapse of time. He further denied the suggestion that accused present in the Court was the same person who had committed carnal intercourse on the alleged date of incident. Moreover, PW-4 also denied making his statement which is Ex. PW-4/A to the IO, though he has admitted his signature on the same. He also denied the suggestion of joining the investigation with the police on 01.09.2004. PW4 also stated that he does not remember identifying the accused and the fact that the accused was apprehended by the police, on his identification, on 2/9/2004.
16. The case of the prosecution on this point, also remains doubtful as PW2 i.e. father of the complainant, during his examination-in-chief did not state about the fact of accused being arrested at the instance FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7 of his son, and in his presence. It was only during his cross- examination by Ld. APP, that he stated that the accused was arrested in his presence. Moreover, PW-5 who is the IO in the present case during his cross-examination stated that no TIP of the accused was got conducted. He also stated that he did not get the statement of the victim i.e. PW-4, recorded u/s.164 Cr. P.C. Moreover, PW-5 and PW-8 in their examination in chief have stated that on 02.09.2004, they had visited the residence of the accused and had apprehended the accused at the instance of the complainant. However, PW4 i.e. the complainant as stated above, stated that he does not remember if he along with his father had visited the residence of the accused on 02.09.2004, and had identified the accused. Thus, in light of the testimony of PW4, and in absence of any TIP proceedings, the testimony of PW5 & PW8 does not hold much significance.
17. Also, the MLC of the accused which is on record as Ex. C-1 mentions that "it cannot be ruled out that the accused is unable to perform sexual intercourse." But the fact that accused was capable to do sexual intercourse does not in itself establish that the sexual assault on complainant as alleged was committed by accused and one has to look for other evidence brought on record. IO in his cross-examination stated that he did not seize any cloth of the victim during investigation. As per the forensic laboratory reports, on record there is no evidence to connect the accused with alleged act of sexual assault or sodomy on complainant.
18. Thus, considering the overall facts and circumstances of the case FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7 and evidence on record I am of the view that prosecution has failed to prove its case beyond reasonable doubt against the accused. Accordingly accused Harish Kumar S/o Gajpal Singh is acquitted for the offence punishable U/S 377 IPC in present case.
19. Let Bail Bond U/S 437 A Cr.P.C., be furnished.
NABEELA Digitally signed by
NABEELA WALI
Announced in open court
WALI Date: 2018.09.20
16:42:56 +0530
on Dated: 20/09/2018 (NABEELA WALI)
MM(E)/KKD/Delhi/20.09.2018
FIR No. 616/04 PS Shakarpur State Vs. Harish Kumar 7 of 7