Delhi District Court
State vs . Ram Shankar Gupta on 22 September, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. RAM SHANKAR GUPTA
FIR No. 29/2006
PS: MOTI NAGAR
U/S: 377 IPC
JUDGMENT
Sr. no. of the case : 29/06
Unique Case ID no. : 02401R1238082006
Date of commission of offence : 27.01.2006
Date of institution of the case : 24.03.2006
Name of the complainant : Withhold being father of the
victim, however, available
on the judicial file.
Name of accused and address : Ram Shankar Gupta
S/o Sh. Jagan Nath Gupta
R/o Jhuggi No.397, Rakhi
Market, Zakhira, Delhi.
Offence complained of or proved : 377 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 22.09.2014
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 27.01.2006 at about 07:30 PM at Jhuggi Rakhi Market, Jakhira, accused had carnal intercourse which is against the order of nature, with victim (name withhold). Accordingly, after the investigation, police filed the present charge sheet against the accused.FIR No. 29/2006, PS Moti Nagar Page 1/9
2. Complete set of copies were supplied to the accused. After hearing arguments, charges were framed against the accused by my Ld. Predecessor for trial of offence U/s 377 IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. In order to prove the case against the accused, the prosecution has examined seven witnesses i.e (1) HC Krishan Lal (2) father of the victim (3) the victim (4) HC Narender Singh (5) Ct. Ghasi Ram (6) Sh.
Prashant Kumar, the then Ld. MM (7) Dr. Babita.
4. PW1 HC Krishan Lal stated that on 28.01.2006 he was posted as Duty Officer at PS Moti Nagar. On that day his duty hours were 12:00 night to 08:00 AM and at about 01:35 AM he received rukka through Ct. Ghasi Ram sent by SI Mewa Ram. It is stated by him that he lodged the FIR No.29/06 Ex.PW1/A and endorsed the rukka Ex.PW1/B (OSR).
5. PW2 i.e. father of the victim stated that in the year 2006 he was residing in Delhi alongwith his family members and was working as a Kuli near Zakhira Railway line. It is further stated that he does not remember the exact date but it was winter season and on that day he had come to his house in evening. At that time, his son aged about 6 years came to house and he was weeping. He asked his son, who told him that Shanker uncle had committed carnal intercourse with him. Blood was oozing out from the anus of his son. It is further stated by him that he informed the PCR officials and they took his son to DDU Hospital where he was medically examined. It is further stated that Shankar was residing nearby his jhuggi and this witness correctly identified the accused present in the Court. It is further stated that police had recorded his statement Ex.PW2/A. The clothes of his son were taken by the doctor. It is further stated by him that after registration of FIR, police had arrested the accused from his jhuggi in his presence vide memo Ex.PW2/B and personal search of accused was conducted vide memo Ex.PW2/C. Police had also interrogated his son. It is further stated by him that accused had committed wrong with FIR No. 29/2006, PS Moti Nagar Page 2/9 his son. His son had given a statement before Magistrate also.
6. PW3 is the victim in the present case. It is stated by him that his father is doing business of kabadi. They left Delhi since 1 year. It is stated by him that he do not remember the exact date. On that day his father had gone to outside and he was present at jhuggi in Delhi and he had gone to a electric shop where the accused met him. This witness correctly identified the accused present in the Court. This witness further stated "Phir usne kaha ki chal beta tujhe film dikhauna aur paise doonga. Tab wo mujhe ek ghar mein le gaya and ghar band karke meri gaand maar liya". It is further stated that then he came back at his house and he was weeping. His father asked him then he told about the incident. Police took him to DDU Hospital where he was medically examined. It is further stated by him that accused Shankar was residing nearby their jhuggi.
7. PW4 HC Narender Singh stated that during the course of investigation of this case on the instruction of IO, on 21.02.2006 he collected the exhibits of this case from MHC(M) vide RC No.1121 and deposited the same at CFSL at Kalkatta and after depositing the same to CFSL at Kalkatta, he returned the same to MHC(M).
8. PW5 Ct. Ghasi Ram stated that on 28.01.2006 he was posted at PS Moti Nagar and on that day on receipt of DD No.24A he alongwith ASI Mewa Singh went to Jhuggi Rakhi Market near Railway Line, where they came to know that the father of the victim has taken the victim to DDU Hospital. In the meantime IO received DD No.31A and he alongwith IO went to DDU Hospital where IO collected MLC of victim. It is further stated by him that in the hospital IO recorded the statement of father of victim and on the basis of the statement IO prepared rukka and rukka was handed over to him. Accordingly, he went to PS, got the FIR registered and came back at the spot and handed over copy of FIR and original rukka to IO. It is further stated that on the same day IO collected the pullandas and sample seal of victim and seized the same vide seizure memo Ex.PW5/A. It is further stated by him that IO arrested the accused Ram Shankar Gupta vide arrest memo Ex.PW2/A FIR No. 29/2006, PS Moti Nagar Page 3/9 on the identification of complainant, conducted his personal search vide memo Ex.PW2/C, got the accused medically examined and seized the sample seal, blood seal and underwear seal vide the seal of DDU CMO vide seizure memo Ex.PW5/B.
9. PW6 Sh. Prashant Kumar, the then Ld. MM stated that on 06.02.2006 while he was posted as MM at Rohini Court Complex, application on behalf of IO SI Mewa Singh for recording statement of victim was marked to him by the Court of Sh. Rajesh Kumar, the then Ld. MM, Rohini Courts. It is further stated by the witness that he had proceeded as per law to record the statement of victim. The victim was approximately 6 years old. It is stated by him that he had ascertained the competency of the witness by putting him some fundamental and general questions. After satisfying himself that the witness was competent enough to be examined U/s 164 Cr.P.C. This witness recorded his statement in his own handwriting. It is further stated that all the proceedings for recording the statement of victim U/s 164 Cr.P.C were conducted in camera in his chamber after the witness was duly identified by the IO. The application for getting the statement recorded filed by IO is mark X6. The proceedings of recording the statement U/s 164 Cr.P.C running in three pages is Ex.PW6/A bearing signatures of this witness at point A, B, C and D. It is further stated by him that during recording of the statement, the ink of the pen being used had run out of flow, therefore, part of the proceedings were recorded in one ink and some part was recorded with another pen. It is further stated that he had recorded correctly the statement of victim as narrated by him.
10. PW7 Dr. Babita stated that she had been working in DDU Hospital since 2002. On 27.01.2006 she was posted as CMO in DDU Hospital and on that day the victim aged 6 years, male was brought in hospital with alleged history of sexual assault. It is further stated by her that patient was examined by Dr. Swati Aggarwal and MLC no.1936 Ex.PW7/A bearing signatures of Dr. Swati Aggarwal at point A was prepared. As per the MLC report, on local examination there was tear over 12, 8 and 6 'O' clock position over posterior aspect of rectum and FIR No. 29/2006, PS Moti Nagar Page 4/9 para anal region and there was abrasion and bruise over left gluteal region. After that patient was referred to surgery for further management. It is further stated that on 28.01.2006 Ram Shankar Gupta S/o Sh. Jagan Nath Gupta age 19 years was examined by Dr. Swati Aggarwal and MLC no.1938 Ex.PW7/B bearing signatures of Dr. Swati Aggarwqal at point A was prepared. It is further stated by her that as per the MLC, report of Ram Shankar Gupta, there was nothing to suggest that the person Ram Shankar Gupta was unable to perform the sexual act. Dr. Swati Aggarwal has left the services of DDU Hsopital and her whereabouts are not known. It is further stated by her that she had worked with Dr. Swati Aggarwal during the course of duty at hospital and she is fully acquainted with her handwriting as she had seen Dr. Swati Aggarwal writing in the course of her official duties.
THE DEFENCE :
11. Statement of accused U/s 281 Cr.P.C r/w Section 313 Cr.P.C was recorded. In his statement, the accused controverted and denied the allegations leveled against him. Accused stated that he is innocent and has been falsely implicated in the present case as he was not present on the spot at the time of the alleged incident. In fact on that day at the alleged time he had gone to Chandni Chowk market for purchasing the electrical wires for his house. He further stated that he reached to his house at about 04:30 PM on the date of alleged incident and found that some quarrel was being taken place between his family and the family members of the alleged victim. His father confined him in a room of his house and called the police on the spot. He was falsely implicated and arrested by the police. Accused opted not to lead any defence evidence.
THE ARGUMENTS:
12. Ld. APP for state has argued that complainant and victim have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of testimony of prosecution FIR No. 29/2006, PS Moti Nagar Page 5/9 witnesses, offence U/s 377 IPC is proved beyond doubt. He has further submitted that keeping in view the nature of the offence, the sole testimony of the victim is sufficient to convict the accused for the offence alleged.
13. On the other hand, Ld. counsel for accused has stated that there is no legally sustainable evidence against the accused. It is argued that name of the victim is different in his MLC and statement recorded by the Ld. MM U/s 164 Cr. P.C then the name stated by him before court or to the police officials, hence, identity of the victim has not been duly proved, thus it cannot be held that prosecution has proved its case beyond reasonable doubt.
14. Arguments were heard on behalf of the state and the accused, thereafter, the matter was listed for judgment.
THE FINDINGS:
Offence U/s 377 IPC:
15. Section 377 IPC defines Unnatural offences as:-
"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 to fine Explanation- Mere penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
16. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
FIR No. 29/2006, PS Moti Nagar Page 6/917. In the case at hand, the testimony of the victim has remained intact and the defense has not been able to shake its veracity or to impeach the credibility of this witness. The testimony of the victim has been sufficiently corroborated by his statement under section 164 Cr.P.C as well as by the testimony of his father PW-2.
18. There has been a minor contradiction in the present matter as name of the victim is "A" but his name has been mentioned as "SA" in his MLC and his statement recorded U/s 164 Cr.P.C, however, it is to be noted that both the name "A" and "SA" are phonetically similar, further, father's name of the victim and their address is correct in MLC as well as 164 Cr. P.C statement. Further, in his statement U/s 313 Cr.P.C accused has not stated that the person deposed before the Court was not the actual victim. In fact it is stated by him that on the date of alleged incident there was some quarrel being taken place in the family of the accused and the victim. Thus, the accused has nowhere disputed identity of the victim. The discrepancy in the name of the victim is not material as the same may be a clerical mistake due to phonetically similarity between the two names or the victim might be using the names as alias. However, it is only a minor contradiction and does not create doubt on the identity of the victim.
19. The statement of the victim and his father had remained unshaken on material points. That apart, medical evidence lends credence to the testimony of the victim. In his MLC Ex.PW7/A, it has been recorded that there were tears over 12, 8 and 6 'O' clock position over posterior aspect of rectum and para anal region and there was abrasion and bruise over left gluteal region. After further inspection, it was also observed that there were blood spotting in perianal region, bruise in perianal region, anal tear at 12 'O' clock, 6 'O' clock, 07 'O' clock and 10 'O' clock region. It is further observed that muccrions material present, slide prepared. Also, as per the MLC of the accused Ex.PW7/B, the male sexual organs of the accused were found to be well developed and the doctor had given the opinion that there was nothing to show that the accused was not capable of having sexual intercourse.
FIR No. 29/2006, PS Moti Nagar Page 7/920. The undergarment of the accused, blood sample of the accused, undergarment of the victim and anal swab side of victim were sent to the CFSL for forensic opinion. The CFSL Report is admissible in evidence as per Section 293 of the Code of Criminal Procedure. In the said report, neither blood nor semen was detected on the anal swab of the victim.
21. Now As per the Explanation to Section 377 IPC, "Mere penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." It has been held in a catena of judgments that even the slightest penetration by penis with or without emission of semen is sufficient for the commission of offence under Section 377 IPC. Hence, the mere absence of semen or blood on the rectal swab of the victim would not wipe out the commission of offence alleged.
22. It is a well-established principle of criminal law that in cases of sexual offences, even the uncorroborated testimony of the victim can be relied upon and can form the sole basis of conviction of the accused. In "Ranjit Hazarika v State of Assam",(1998) 8 SCC 635, it was held by the Hon'ble Supreme Court of India, "The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated."
23. In the case at hand, the testimony of the victim has remained intact and the defence has not succeeded to create any dent in his testimony, rendering it cogent and trustworthy. His testimony has been sufficiently corroborated by PW2 as well as other Prosecution witnesses, and the Medico-Legal reports.
FIR No. 29/2006, PS Moti Nagar Page 8/924. Thus, in view of the above discussion and the case-laws, the Court is of the considered view that the prosecution has proved its case beyond reasonable doubt. As such, accused Ram Shanker Gupta stands convicted under Section 377 IPC.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 22.09.2014 MM-04 (WEST)/DELHI
Containing 9 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 29/2006, PS Moti Nagar Page 9/9