Delhi District Court
Civil Suit For Civil Judge/344/2003 on 18 December, 2013
IN THE COURT OF NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1.FIR No. : 344/03
2.Date of Offence : 17.10.2003
3.Name of the complainant : Sh. Saket Gautam
4.Name, parentage and Address :
of the accused Kuldeep
S/o Sh. Kanhiya Lal
R/o 16/1196 E, Khalsa Nagar,
Gali No. 1, Tank Road, Bapa
Nagar, Karol Bagh, Delhi.
5.Offences charged with : Section 341/377/511/34 IPC.
6.Plea of the accused : Pleaded not guilty.
7.Date of reserving order : 05.12.2013
8.Sentence or final order : Accused is convicted.
9.Date of order : 18.12.2013
JUDGMENT
1. The case of the prosecution is that on 17.10.2003 at about 8.45 pm at Ratia Wali Piyau, on the back side of Shiv Mandir ground, the accused Kuldeep alongwith juveniles namely Parveen @ Hemant, Sonu, Jitender and Harish @ Haria in furtherance of their common intention, wrongfully restrained the complainant Saket Gautam and attempted to commit carnal intercourse with him against the order of nature.
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to him in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against him under Section FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 1/11 341/377/511/34 of the Indian Penal Code (for short 'IPC') to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined six witnesses. PW-1 is Saket Gautam (complainant). He submitted that on 17.10.2003 at about 8.45 pm, he was going to buy articles; when he reached outside gali no. 4, Dev Nagar, Karol Bagh; in the meantime, 3-4 persons namely Kuldeep, Jitender, Hemant, Harish and Sonu came there and they forced him to go with them, but he refused; they threatened him if he would not go with them, they would beat him. All the said persons forcibly took him at open ground near to his house; accused Jitender and Hemant caught his both hands; accused Sonu covered his mouth with his hand and accused Harish opened his wearing pant and tried to hold him from his back and also tried to do sexual things with him, but he refused so accused Harish left him; but accused Kuldeep caught him from his back and tried to have forcible anal intercourse with him. All the accused persons threatened him if he told the said facts to anybody, it would be not good for his health; then he came back to his home. He did not tell the said facts to anyone on that night due to fear. On the very next day, he told the said facts to his father. His father took him to PS Prasad Nagar for lodging an FIR. IO recorded his statement vide Ex. PW-1/A. Police took him to Lady Harding Hospital for his medical examination. He tendered arrest memo of accused Kuldeep vide Ex. PW-1/B and disclosure statements of the accused persons vide Ex. PW-1/C to PW-1/G. PW-2 is Gyan Chand Gautam. He submitted that on 17.10.2003, he sent his son Saket Gautam to bring bread etc. from Jyoti General Store FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 2/11 at about 8:45 pm; he came back to house after about 45 minutes by running and went to his room; in the night, his son Saket was very nervous and scared. On the very next day, his wife asked Saket what happened with him but he did not tell anything as he was scared. His son Saket told the facts of happening to his mother in his absence and in the evening, when he came back to the house, his son Saket told him that he while going to buy bread etc., accused persons namely Jitender, Sonu, Haria, Praveen and Kuldeep met him on the way and took him to the ground situated at the back side of the temple and two accused persons out of the said five accused persons committed anal intercourse with him forcibly, while remaining three accused persons caught hold him covering his face with hands. On 20.10.2003, he took his son Saket to PS Prasad Nagar and lodged the complaint against the said accused persons.
PW-3 is SI Pritam Singh. He tendered FIR, copy of which is Ex. PW-3/A and endorsement at point A on Ex. PW-1/A. PW-4 is HC Jeet Singh. He submitted about the steps taken by the investigating officer during investigation into the present case. He submitted that on 19.10.2003, Gian Chand Gautam alongwith his son Saket Gautam visited PS Prasad Nagar and told that on 17.10.2003, five persons had committed sodomy on Saket Gautam. IO recorded the statement of Saket Gautam and FIR was recorded. Thereafter, he alongwith IO and above-said persons reached at the spot and IO prepared site plan at the instance of the complainant Saket Gautam. He tendered arrest memo and personal search memo of accused Kuldeep vide Ex. PW-1/B and PW-2/A respectively, disclosure statements vide Ex. PW-1/C to PW-1/G and pointing out memos vide Ex. PW-2/B to PW-2/F. PW-5 is FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 3/11 Retd. SI Ayodhaya Prasad (investigating officer). He submitted on the similar lines as deposed by PW-4. He submitted that he got PW-1 medically examined. Subsequently, he apprehended the accused. He tendered MLC of Saket vide Ex. PW-5/A, site plan vide Ex. PW-5/B and application for medical examination of accused Kuldeep vide Ex. PW-5/C. PW-6 is Dr. H.R. Singh. He identified the handwriting and signature of Dr. Pardeep Siwang on MLC No. 2049/03 dated 19.10.2003 of Saket Gautam, aged about 13 years male. He tendered the said MLC vide Ex. PW-6/A.
4. After conclusion of prosecution evidence, statement of accused was recorded wherein he claimed himself innocent. He stated that Saket Gautam used to reside in the neighbouring gali; about 6-7 days prior to the impugned alleged day, he had a scuffle with father of Saket Gautam for playing cricket in his gali; his father abused him and the persons who had gathered there beat him; during that incident, he (accused) slapped Saket 2-3 times; his father told him that he would see him; thereafter, he was falsely implicated in the present case. The allegations made by PW-1 against him were false; no such incident had happened. Accused opted to lead defence evidence.
5. In support of his defence, accused examined two witnesses. DW-1 is Satish. He submitted that on 02.10.2003, he alongwith 4-5 other boys were playing cricket at gali no. 6, Tank Road, Delhi; accused Kuldeep was playing cricket with them; Kuldeep was batting and he hit the ball with force, due to which, the said ball hit the glass of the window of house of Saket and broke the said window glass. Father of Saket came there and slapped accused Kuldeep; Saket also accompanied with his FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 4/11 father; accused Kuldeep slapped Saket; thereafter, accused scuffled with the father of Saket; thereafter, father of Saket threatened them by saying that he would not allow them to play there and he would see them. DW-2 is Sumit Aggarwal. He submitted that on 02.10.2003, many boys were playing cricket in gali no. 4, Block no. 6, Dev Nagar, Karol Bagh, Delhi; during the said cricket match, ball was hit with the window of the first floor belonging to a person who was running his business of chappal and broke the glass of the window; the owner of the said house came down and some hot altercation took place between the accused and the above-said person; thereafter, some scuffling took place. Thereafter, Kuldeep was removed by the other boys from there. Thereafter, the owner of the above-said house extended threat to send Kuldeep in jail. The owner of the above-said house left for his house. Father of the accused also reached at the spot and took the accused.
6. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
7. Ld. APP has argued that prosecution has examined the victim as PW-1 and his father as PW-2. Both the witnesses have corroborated with each other. Further, the testimony of PW-1 has been supported by his MLC Ex. PW-6/A. Further, since PW-1 had been threatened by the accused and his associates that if he would tell about the impugned incident to anybody, it would not be good for his health; hence, he could not disclose about the impugned incident to his parents on the same day of its occurrence. Moreover, the accused could not bring anything on record as to why PW-1 or his father PW-2 would falsely implicate four persons other than the accused too in the present case FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 5/11 and that too, by leveling allegations for commission of offence of carnal intercourse. In these circumstances, the prosecution has proved its case against the accused beyond reasonable doubt.
8. Ld. Defence Counsel has argued that the prosecution has failed to explain the delay of two days in registration of FIR in the present case. Further, it is beyond comprehension as to when five persons tried to have carnal intercourse with PW-1, then why the act could not be completed. Further, the prosecution did not examine any independent witness. In these circumstances, prosecution has failed to prove its case against the accused beyond reasonable doubt.
9. Ld. APP has opposed the argument advanced by Ld. Defence Counsel.
He has submitted that such alleged offences are not committed at open place, rather such offences are committed at secluded places; hence, the probability of presence of any independent witness at the time of commission of such offence uses to be negligible.
10.Now, the prosecution has examined the victim as PW-1. He has provided the detail of the facts related to the alleged incident. He narrated as to how he was taken by five persons including accused at the spot of alleged incident i.e. he was threatened and forcibly taken at the spot by them. Further, accused Kuldeep and Harish tried to have anal intercourse forcibly with him and they were assisted by Jitender, Hemant and Sonu. He has further stated that he could not shout as one of those persons was covering his mouth with his hand. During his cross-examination, he remained unmoved from his above-said version. Ld. Defence Counsel has argued that prosecution has failed to explain FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 6/11 the delay of two days in registration of FIR. On this aspect, PW-1 has categorically stated that he did not tell the said facts to anyone on that night due to fear. On the next day, he told the said facts to his father. Further, he clarified during his cross-examination that he told the said facts to his father in the evening on the next day. He voluntarily stated that they went to the PS on 19.10.2003 for lodging of FIR. It is pertinent to note that in the MLC Ex. PW-6/A, the age of PW-1 has been written as 13 years. It is further pertinent to note that threat had been given to the child of 13 years by five persons including the accused and the said threat must have definitely created great fear in the mind of PW-1. Hence, it is natural for a child of 13 years that in the circumstances depicted by PW-1 and threat given by the accused persons, he (PW-1) must have not found sufficient courage to tell about the incident to his parents on the same day. Moreover, PW-2 (father of PW-1) has corroborated PW-1 on this aspect that in the night [of 17.10.2013], his son was very nervous and scared and he (PW-1) told the facts of the present case to him on the next day in the evening. The above-said version of PW-2 was not challenged during his cross- examination. Furthermore, no specific question was put to PW-1 and PW-2 on the aspect of reason for delay in making complaint to the police.
11.Further, it is the defence of the accused that he has been falsely implicated by PW-2, father of the victim to take revenge of previous incident depicted by DW-1 and DW-2. Firstly, DW-1 and DW-2 were not witnesses of the impugned alleged incident. Further, the said defence of the accused was not put to PW-1 or PW-2; hence, the testimony of DW-1 and DW-2 can not be relied upon. Moreover, FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 7/11 DW-1 and DW-2 had stated about the scuffle between accused and PW-2 occurred on 02.10.2013 and it is not the case of the accused that PW-2 had threatened to implicate other persons too namely Jitender, Hemant, Harish and Sonu in a criminal case. Even otherwise, if the plea of accused that he has been falsely implicated by PW-2 in the present case due to previous enmity is accepted; then it is beyond comprehension as to why PW-2 would lodge such complaint against the accused wherein there was a delay of two days in reporting the matter to the police. It is worth noting that incident was related to commission of anal intercourse with a child and any parent would hesitate in reporting the matter to the police so as to avoid any stigma to be attached with the child. Above all, the accused had not brought on record any complaint made by him before the Court or competent authority qua his false implication in the present case to bring home this argument. Hence, this plea of false implication is not sustainable.
12.Further, the impugned incident occurred on 17.10.2003 at about 8:45 pm. PW-1 disclosed about the incident to his father in the evening of 18.10.2013 and thereafter, PW-2 alongwith PW-1 reported the matter to the police on the next day i.e. 19.10.2003. In the MLC Ex. PW-6/A, time of arrival in the hospital has been mentioned as 6:30 pm on 19.10.2003. From the above-mentioned, the version of PW-2 that his statement was recorded at 9:00 am [on 19.10.2003] is tenable. As when he had approached the police around 9:00 am on 19.10.2003, the police official must have taken sometime in preliminary enquiry etc. and thereafter, PW-1 had been taken to hospital for medical examination. It appears that there had been some lapse on the part of investigating FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 8/11 officer that he sent rukka Ex. PW-1/A for registration of FIR at 9:50 pm; while PW-1 had already been examined at 6:30 pm.
13. The Apex Court in Ambika Prasad v. State (Delhi Administration), AIR 2000 SC 718, has held that:
8. [D]ealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP, 1995(5) SCC 518 observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar, 1998(2) RCR(Crl.) 403 : 1998(4) SCC 517 para 13 this Court observed :-
"....In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
9. Further in Paras Yadav and others v. State of Bihar, 1999(1) RCR(Crl.) 628 : 1999(2) SCC 126 this Court held :-
"...It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not....."
In Zindar Ali SK v. State of West Bengal, 2009 (2) RCR (Criminal) 26, the Apex Court has further elaborated that:
13. [I]t is trite law that the defence can not take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case.FIR No. 344/03
PS: Prasad Nagar State v. Kuldeep 9/11 In these circumstances, prosecution has been able to explain the delay of two days in getting the FIR registered in the present case.
14.Further, PW-1 has categorically deposed that no other person was present when the accused persons stopped him at the corner of the street. No known person met him during the way from the corner of the street to the spot. It has already been observed that he (PW-1) shouted in the ground but one of the accused was covering his mouth with his hand. Further, there was no source of light on the ground. It is pertinent to note that the alleged incident had occurred at about 8:45 pm i.e. in the late hours; hence, movement of persons/vehicles during the said time decreases substantially. All the above-said circumstances lead to infer that no other independent witness must have witnessed the occurrence of alleged incident. Hence, the Court is in agreement with the submission made by Ld. APP that there was no possibility of joining any independent witness into the present case. Further, Ld. Defence Counsel has argued that why the alleged act while committed by five persons could not be completed. The said argument is not acceptable. There might be several reasons as to why any person would not be successful in completion of a criminal act.
15.Further, the testimony of PW-1 that accused Kuldeep had tried to have forcible anal intercourse has been corroborated with his MLC Ex. PW-6/A. In the MLC, it has been observed that abrasion on outer side of the anus, there is laceration or tear on anal canal, anal sphincter intact. The accused did not challenge the above-said observation made in the MLC during examination of PW-6. The said observation made in the MLC shows that even after two days of the incident, marks of FIR No. 344/03 PS: Prasad Nagar State v. Kuldeep 10/11 injury were visible on the outer side of the anus of PW-1. Accused did not put any suggestion to PW-1 that he was not present at the spot on the impugned day and time. Hence, it is proved beyond reasonable doubt that accused Kuldeep had attempted to have anal intercourse with PW-1. Further, from the above mentioned discussion, it is proved that PW-1 was restrained by the accused and his associates when he was going to buy articles and thereafter, he was forcibly taken to the spot of incident. Hence, the prosecution has proved beyond reasonable doubt that accused wrongly restrained PW-1 from proceeding in direction in which he had right to proceed. Further, he did not even put suggestion to PW-1 that he was not associated with other persons namely Jitender, Hemant, Harish and Sonu. In view of the above-said discussion, it is further proved that all the five persons including accused committed the alleged offence in furtherance of their common intention.
16. Considering the above mentioned, prosecution has proved the ingredients of offences punishable under Section 341/377/511/34 of the Indian Penal Code against the accused beyond reasonable doubt. Hence, accused is held guilty for the offences punishable under Section 341/377/511/34 of the Indian Penal Code.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/18.12.2013
FIR No. 344/03
PS: Prasad Nagar
State v. Kuldeep 11/11