Delhi District Court
State vs Acharya Paramdev on 27 September, 2023
IN THE COURT OF SH. AYUSH SHARMA, MM-02, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI
STATE VS. ACHARYA PARAMDEV
FIR NO. 144/2005
PS: KANJHAWALA
U/S: 293/377 IPC
Date of institution of the case : 16.05.2008
Date of judgment reserved : 19.08.2023
Date of commission of offence : 08/09.05.2005
Name of the complainant : Sh. Bacchan Singh S/o Sh. Jai Singh
R/o H. No. 243, VPO Khera Kalan,
Delhi.
Name of accused and address : Acharya Paramdev S/o Shri Swami
Jagdishvara Nand R/o Gurkul,
Tatesar, Village Jonti, Delhi.
Offence complained of : 293/377 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 27.09.2023
Final order : Held guilty/Convicted
JUDGMENT
I. CASE OF THE PROSECUTION
1. The case of the prosecution is that on 24.05.2005 complainant came to the police station and gave a written complaint against the accused. The version of the sequence of events put forth by the prosecution against the accused, may, in brief, be described as under:
i. On 8.05.2005, complainant along with his son 'MS', (aged about 9 years) went to Gurukul Tatesar with a view to get him admitted there. He left his son 'MS' with all the necessary items and returned back to his home.State vs. FIR No. 144/2005 PS Kanjhawala Page No. 1 / 51
Acharya Paramdev ii. On 9.05.2005, at around 5 pm, complainant's wife contacted her son 'MS' and was told by 'MS' to come to Gurukul along with his father (complainant herein) immediately. She was further told by 'MS' that there is something and he will tell all the things personally to her. The child 'MS' was afraid and weeping at that time.
iii. On 10.05.2005, in the morning, the complainant's wife again contacted her son 'MS' who was crying at that time. 'MS' again told her mother to come and take him back from the Gurukul. The complainant sent her wife to Gurukul on the same day and left for his work. When the complainant's wife met her son 'MS', she was told by him that accused Acharya Paramdev is a bad man and further told that he will tell all the things once she takes him back to home. The wife of the complainant brought her son 'MS' back to home and asked the reason for not staying in the gurukul.
iv. The son of the complainant 'MS' told his mother that in the night when he was left in Gurukul and was sleeping in the courtyard with other children inside the mosquito net (machardaani) on the takht, accused came to him with a torch and started flashing it on his eyes. Suddenly, when he woke up, accused asked him to come and sleep with him in his room telling him that there was a fan inside and it can prevent him from mosquito bites. The accused took him to the room and started watching a film of nude girls on the computer kept in that room. The accused thereafter paused the movie on the monitor and switched off all the lights of the room. The accused removed all his clothes except his 'langot' and also removed the clothes of 'MS' and started kissing him on his face and lips due to which he felt nervous and an urge to pass urine. 'MS' thereafter requested the accused that he wants to go for urination and after that he went back in the courtyard and slept on his takht.State vs. FIR No. 144/2005 PS Kanjhawala Page No. 2 / 51
Acharya Paramdev v. It was further told by 'MS' that on the next day i.e., 9.05.2005, when he came out after taking bath accused asked him to come to computer room as he would teach him to wear 'langot'. Thereafter, when 'MS' went to the room, accused took his penis in his mouth. After that accused told 'MS' that there was a thief that has come in night in gurukul and he should not tell this fact to anyone, otherwise all the students will get afraid.
vi. On 12.05.2005, complainant along with his son 'MS' went to police station Kanjhawala to register the complaint, wherein accused along with the members of the management of the gurukul reached the police station. The complainant was told by the members of management of gurukul to enquire from 'MS' peacefully as his son 'MS' may be telling a lie on the pretext of not staying in the gurukul. The complainant on this wrote on his complaint not to take any action in the matter till the time he makes further enquiries from his child 'MS'.
vii. On 24.05.2005, complainant again came to the police station and gave his written complainant against the accused. On the basis of this complaint, the present FIR was registered against the accused. Upon completion of the investigation, chargesheet u/s 293/377 Indian Penal Code ('IPC') was filed and the accused was sent for trial.
II. COURT PROCEEDINGS
2. Vide order dated 28.06.2008, the ld. Predecessor of this court took cognizance of the offence u/s 293 IPC only and observed that the ingredients of Section 377 are not made out in the present case. The accused was thereafter summoned in the present case. Pursuant to the appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC. Upon hearing the arguments, vide order dated 02.09.2008, charge u/s 293 IPC only was ordered to State vs. FIR No. 144/2005 PS Kanjhawala Page No. 3 / 51 Acharya Paramdev be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
III. EVIDENCE OF THE PROSECUTION
3. In order to substantiate its case, the prosecution has examined seven witnesses in toto. The witnesses cited by the prosecution could be divided in the following categories:
i.) Complainant/father of victim 'BS' ('PW1').
ii.) Victim 'MS' ('PW2').
iii.) Police witnesses: ASI Jor Singh ('PW3'), Retired Inspector Ram
Kanwar Dahiya ('PW4'), Retired SI Kanwal Singh ('PW-5', inadvertently mentioned as PW4 in record), ASI Rajpal ('PW6' inadvertently mentioned as PW5 in record) and Retd. SI Rajender Prasad ('PW7' inadvertently mentioned as PW6 in record).
Complainant/father of victim 'BS' ('PW1')
4. PW1/ 'BS' is the father of the victim. He disclosed that the date of birth of his son 'MS'/PW2 is 10.01.1996 and about 15 days prior to 08.05.2005, he went to Arya Gurukul, Tateshwar, Delhi and met the accused, who was the principal/head of gurukul at that time and conducted enquiries regarding admission of his son in gurukul. He has further deposed that in relation to his queries, it was informed by accused that the total expenses would be around 10- 12 thousand and along with Vaidik Shiksha, they will also provide latest education. He further deposed that accused told him to leave PW2 on trial basis so that he may adjust in the environment of gurukul and after making the enquiries, PW1 left the gurukul and came back to his house. He has further disclosed that on 8.05.2005, at about 5 pm, he along with his wife and son PW2 went to gurukul with all the necessary articles of day-to-day use and left him there.
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 4 / 51Acharya Paramdev
5. PW1 further stated that on 9.05.2005, in the morning hours, his wife contacted PW2 on telephone and in the evening, she told PW1, that PW2 was afraid and requested them to take him from gurukul. He further deposed that on 10.05.2005, his wife and he himself talked to his son on telephone and observed that his son/PW2 was nervous and was insisting them to visit him immediately at gurukul. He deposed that PW2 told him that there is some material which he cannot disclose on telephone and would tell all the things personally. He further stated that on the same day, he sent his wife to gurukul to meet his son/PW2 and he left for his work and when he returned back in evening, he asked his wife the reason of bringing back his son from gurukul.
6. PW1 further stated that his wife told him that, she along with PW1's friend Kuldeep Singh and his wife Kamla Devi went to Bahadurgarh and while returning she went to gurukul. PW1 further testified that his wife told him that when PW2 saw her on the gate of the gurukul in Maruti Van, he rushed towards her and disclosed to his wife and his friend, that Acharya Paramdev (accused) was a bad man. He further deposed that PW2 told his wife that on the same night when he was left in the gurukul, accused took him to a room and would tell the complete facts at home and thereafter his wife brought back PW2 to home. PW1 further testified that PW2 thereafter told all the facts to him elaborately. PW1 deposed that PW2 told him that on the night when he was left in the gurukul and was sleeping in the open space along with other children in 'machhardani', accused came to him with a torch and started flashing it on his eyes. PW1 further stated that he was told by PW2, that he woke up suddenly and was asked by accused to sleep with him in his room under the fan as it was very hot and the mosquitoes would be biting him. PW1 further stated that he was told by PW2, that the accused took him to his room and laid him on a takht and started watching a porn movie on the computer. He was further told by PW2 that the accused watched the porn movie for a long time and after that paused the monitor and switched off the lights of the room. He further disclosed that PW2 told him State vs. FIR No. 144/2005 PS Kanjhawala Page No. 5 / 51 Acharya Paramdev that the accused thereafter removed all his clothes except 'langot' and removed all the clothes of his son/PW2 and started kissing on his lips and cheeks, due to which PW2 became nervous and felt an urge for urination and PW2 thereafter taking permission from accused went for urination. PW1 was further told by PW2 that after urination he laid down on his takht in the open space and on being asked by the other students as to where he was, told them that he had gone for urination. He further deposed that PW2 told him that after sometime accused again came to his son/PW2 with the torch but PW2 did not open his eyes and after some time, the accused went away.
7. PW1 further disclosed that he was also told by his son/PW2 that on the next day i.e., 09.05.2005, after the bath, accused told him that he would teach him to wear 'langot' and took him to the same room. He has further stated that PW2 told him that he removed the towel of his son/PW2 and tied a 'langot' on his person and then removed it again and thereafter took PW2's private part in his mouth and started sucking it. He was further told by PW2 that after doing this for some time, the accused left him and PW2 returned back to his room. He further stated PW2 also told him that accused came to his room after some time, and asked him that if he was aware that thieves had come in the gurukul on the previous night and told him not to disclose all these facts to anyone, otherwise other children of the gurukul would get afraid and leave it. He was further told by PW2, that he was afraid due to these things and on the night of 09.05.2005, he slept in a closed room after bolting it from inside.
8. PW1 further deposed that on 12.05.2005, he went to police station Kanjhawala with a written complaint along with his son/PW2 and his wife and gave his complaint to ASI Ram Kumar Dahiya/PW4. He further stated that PW4 made enquiries from PW2 and took PW1 and PW2 along with one Mr. Satish (who was present there in the PS) to gurukul in Maruti car. He further disclosed that one Constable also sat from Kanjhawala chowk in the Maruti van when they were going to gurukul. The witness further stated that after reaching the gurukul, State vs. FIR No. 144/2005 PS Kanjhawala Page No. 6 / 51 Acharya Paramdev PW4 went to the room of accused and checked the CDs kept therein. It is further deposed that PW4 played four CDs in the computer kept in the room and out of which three CDs were found to be obscene. He further stated that PW4 recovered 15-20 packets of CDs along with some loose CDs and kept the same in a bag and apprised the accused about the allegations against him. He further testified that all of them thereafter came back to the police station waited for further directions of SHO PS Kanjhawala till 6 pm. He further stated that when the SHO came, all things were narrated to him and SHO thereafter made enquiries from PW2. The witness further disclosed that subsequently, 5-6 persons who were stating themselves to be members of Gurukul Sanchalak Samiti along with 35-40 persons entered into the police station and pressurized the SHO not to take any action in this matter and also threatened him and his son/PW2 to withdraw the complaint. As per PW1, SHO told him that there is no substance in the allegations made by him and torn the receipt of his complaint and removed the second and third page of his original application and wrote a compromise on the back of the first page as per his wish and directed him and the accused to go back. He has also stated that recovered CDs were also returned to accused. PW1 further deposed that he made written complaints to LG, Delhi, DCP, North-West, Ashok Vihar, DCP Vigilance, Jt. CP and Human Rights Commission against SHO, PS Kanjhawala.
9. PW1 further testified that on 24.05.2005, he along with his son personally met DCP Rajesh Khurana and apprised him about all the facts in the matter and thereafter, DCP directed the SHO on telephone to register the FIR and also directed him and PW2 to go to PS Kanjahawala. PW1 further stated that thereafter, he went to police station along with one Gyan Prakash and Shri Krishan and handed over the copy of complaint to SHO and asked him to register the FIR but the SHO told him that if he wishes to register the complaint against him, he would take favour of the accused and depose against him in the court. As per PW1, SHO told him to write another complaint against accused and then State vs. FIR No. 144/2005 PS Kanjhawala Page No. 7 / 51 Acharya Paramdev he would register the FIR. PW1 further deposed that he thereafter wrote another application running into three pages and requested the SHO to take further action. As per PW1, SHO objected to the last page of his complaint dated 24.05.2005 by saying that these facts do not match with his initial complaint and then, PW1 wrote down the last page of his complaint according to his wish. He has further stated he had to change the third page of his complaint Ex. PW1/A (running into three pages) three times upon the directions of SHO. As per PW1, SHO told him that he would not arrest the accused as there was political pressure upon the SHO and thereafter ACP Ram Kishan, DIU, Rohini was deputed for investigation of the case.
10. PW1 further deposed that on 26.05.2005, he along with his son/PW2 went to ACP Ram Kishan but he did not talk to them politely. He further stated that he requested ACP Ram Kishan to talk to his son/PW2 politely and thereafter, his son/PW2 narrated all the facts to him. He further testified that on 6.06.2005, Inspector Narender Gulati from Vigilance Office called him and his son/PW2 and recorded the statement of his son/PW2. As per PW1, he requested Inspector Narender Gulati to take action against the accused, on which he misbehaved with him and pushed him out of his room. The witness further disclosed that, after some days, ACP (Public Grievances) Birmati called him personally to his office after sending a messenger at his home and inquired him about the case for almost two hours. He further stated that ACP Birmati thereafter threatened and pressurized him to withdraw his complaint against the accused. PW1 further stated that thereafter he met several police officials namely Joint CP Deep Chand and Jt. CP Anil Kumar Sinha and requested them to take action against the accused. PW1further stated that thereafter he met DCP Ashok Vihar, Sh. Virender Kumar Chahal and requested him to take action against the accused. It is further deposed by PW1, that DCP Ashok Vihar sent HC Nirmala and SI Rajender Kumar of Vigilance department at his home for further enquiry but HC Nirmala enquired from his son/PW2 in a hard manner and did not pay any heed State vs. FIR No. 144/2005 PS Kanjhawala Page No. 8 / 51 Acharya Paramdev to the request of PW1 to enquire his son/PW2 politely. The witness further deposed that he wrote letters to several officers of police, LG and Chief Minister of Delhi, Human Rights Commission, Hon'ble Chief Justice, Delhi High Court, Hon'ble Chief Justice of India, Hon'ble Law Minister, Hon'ble Home Minister, Hon'ble Prime Minister, Hon'ble President of India and Hon'ble Chairman of National Commission for Protection of Child Rights against police officers but no action was taken against the accused.
11. PW1 further deposed that his friend Gyan Prakash told him that the accused had sent some of his supporters in his office and offered him to withdraw the complaint against the accused for an amount of Rs. 1,25,000 or 1,50,000/-, but his friend refused to do so. As per PW1, supporters of accused namely Acharya Yashvir and Satender Dabas came to his house along with his brother Baldev Singh and pressurized him to withdraw the complaint against the accused. He further stated that subsequently these persons also went to the house of his friend Krishan Kumar and requested him to get the complaint withdrawn and to compromise the matter. He has also stated that supporters of accused also went to the house of his brother-in-law (jija) Krishan Kumar and tried to pressurize him through his jija to withdraw his complaint and compromise the matter. As per PW1, BJP leader Shri Ram Niwas and one Master Chand Ram along with two other persons also visited his house two times and pressurized him to withdraw his complaint against the accused but he refused to do the same. PW1 further stated the he had obtained some papers through RTI from Child Rights Commission and came to know that the investigating agency turned this case in a dispute of property/agricultural land of gurukul.
12. In his cross-examination by Ld. Counsel for defence, PW1 was confronted with several portions of his complaint Ex. PW1/A by the Ld. Counsel for accused to point out the omissions and improvements made by him during his examination- in-chief. The same are listed in a tabular form for easy reference:
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 9 / 51Acharya Paramdev a. The date of birth of my son 'MS' Confronted with Ex. PW1/A during (PW2) is 10.01.1996. About 15 cross-examination conducted on days prior to 08.05.2005, I went 31.10.2012 wherein this portion was at Arya Gurukul, Tatesar, Delhi not so mentioned.
near Kanjhawala and met Acharya Paramdev who was the principal/head of the said gurukul at that time and I enquired from him regarding the admission of my son, about the fee structure and food charges etc. Acharya Paramdev told me that the total expense of a child is about 10-12 thousand and I agreed to it. I also inquired from Acharya Paramdev regarding the education which they will provide to my son, then Acharya Paramdev had told me that in addition to Vedic Shiksha they will also provide the latest education and further told that the latest education is recognized from MD University, Rohtak.
b. 15 days prior to 08.05.2005, accused told me that I have to leave my son there in the Gurukul for trial basis so that State vs. FIR No. 144/2005 PS Kanjhawala Page No. 10 / 51 Acharya Paramdev my child may adjust in the environment of gurukul.
c. On 08.05.2005, at about 5 pm, Confronted with Ex. PW1/A during I along with my son MS aged cross-examination conducted on about 9 years went at gurukul 07.06.2013 wherein this portion was aforesaid along with all the not so mentioned.
goods of day-to-day use of my son. My wife was also with me at that time. We left our son at gurukul along with all the necessary goods and clothes etc. and we returned to our house.
d. Same day I sent my wife Sunita Confronted with Ex. PW1/A during Devi to Gurukul to meet my son cross-examination conducted on and left for my work, When I 18.01.2014 wherein this portion was returned back to my home in the not so stated.
evening, I met my son and asked my wife the reason for bringing back my son. My wife told me that she went Bahadurgarh along with my friend Kuldeep Singh and his wife Kamla Devi in a Maruti Van and on return she went gurukul. She told me that when my son saw her on the gate of the gurukul in Maruti Van, he (PW-2) rushed towards her. He also told to my wife and my friend that on the State vs. FIR No. 144/2005 PS Kanjhawala Page No. 11 / 51 Acharya Paramdev same night when he was left in the gurukul, Acharya Paramdev took him to a room and he would tell the complete facts in the home and took him immediately to home.
e. After that I gave my complaint Confronted with Ex. PW1/A during to ASI Ram Kumar Dahiya and cross-examination conducted on got it registered and took the 30.04.2016 wherein this portion was receiving from ASI Ram Kumar not so stated.
Dahiya. ASI Ram Kumar
Dahiya inquired my son and
took me along with my son to
gurukul at Tatesar. One Mr.
Satish Kumar S/o Raghubir
Singh of Village Siraspur, Delhi
who was acquainted to me by
face was also present at the PS
and he also heard all the things.
After knowing the seriousness
of the case, Mr. Satish also
accompanied us to gurukul. We
went there in Maruti car of ASI
Ram Kumar. One constable
also sat in the Maruti van from
Kanjhawala Chowk. After
reaching the gurukul ASI Ram
Kumar went at the room of
accused and checked the CDs
kept inside the room. He played
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 12 / 51
Acharya Paramdev
four CDs in the computer kept
in the room, out of which three
CDs were found obscene. ASI
Ram Kumar recovered 15-20
packets of CDs along with some
loose CDs and kept the same in
one bag and apprised the
accused about the allegations
against him Mr. Satish,
constable, myself and ASI Ram
Kumar and accused Paramdev
were present at the spot. I did
not mention the name of Satish
in FIR as did not want to make
it lengthy. After that ASI Ram
Kumar returned back to the PS
along with the accused and the
recovered CDs and started to
wait for further directions of
SHO Kanjhawala who was not
present at that time. I along
with my son waited in the PS till
6.00 pm, When SHO came, we
narrated all the things. SHO
again inquired my son.
Meanwhile, 5-6 persons who
were stating themselves as
members of Gurukul Sanchalak
Samiti along with 35-40
persons entered the PS and
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 13 / 51
Acharya Paramdev
requested SHO not to lodge FIR
in the case and pressurized the
SHO not to do further action in
the matter. Supporters of
Acharya Paramdev threatened
me and my son to kill and
pressurized me to withdraw my
complaint. In the pressure,
SHO Ramphal Dahiya told me
that nothing much wrong
committed with my son and
there is no substance in the
case. He also suggested me that
I should not develop enmity
with the accused and his
supporters. SHO also torn the
receipt of my complaint and
removed second and third page
of my original application and
got written the compromise on
the back of the first page as per
his wish and then directed me
and the accused to return back.
Recovered CDs were returned
to accused.
13. PW1 during his further cross-examination deposed that no enquiry was made by police from Kuldeep Singh in his presence when he accompanied his wife on the day when PW2 was brought back from school. He further deposed that the room from which CDs were recovered was opened and not locked. PW1 further State vs. FIR No. 144/2005 PS Kanjhawala Page No. 14 / 51 Acharya Paramdev testified that he had seen all the CDs which were played on the computer and out of the four CDs that were played, three CDs were found obscene. He further deposed that the CDs were not played completely and hence, he did not have any knowledge regarding the length (time duration) of those CDs. He testified that IO has neither recorded statement of any persons present in that room or in that gurukul on 12.05.2005 nor made any seizure memo of the obscene CDs in his presence. He further stated that he does not know that where the offence allegedly took place, four more Acharyas namely Swami Chakradhar, Indrabhandu Shastri, Avdesh Kumar and Sanjeev Kumar also used to sleep apart from the accused. He further stated that he does not know whether the above said Acharyas were present in the room on the date of alleged offence. He denied the suggestion that on the date of the alleged offence his son PW2 was caught red handed while stealing food articles and money due to which he was called in gurukul and due to this humiliation, he has filed the present case against the accused. He has denied that no action was taken on his first complaint by the police officials because of this reason. He has also denied the suggestion that he has lodged the present case on false grounds in connivance with some of the teachers who were removed from service by the managing committee of gurukul. He has further denied that the present case has been filed in connivance with his jija Krishan Pehlwan to usurp seven acres of land of gurukul. He has further denied that accused has not committed any offence with his son and no porn CDs were recovered from the office of gurukul.
Victim 'MS' ('PW2')
14. PW2/ 'MS' is the principal witness/victim of the case. He has testified that he does not remember the date and the year of incident, however, it was about 3-4 years back. He has deposed that on that day, he along with other students was sleeping in the verandah of the gurukul and at about 1-1.30 am, Acharayaji (whose name he did not remember) came to him and flashed the light of torch State vs. FIR No. 144/2005 PS Kanjhawala Page No. 15 / 51 Acharya Paramdev on his face to see whether he was sleeping or not. He has further disclosed that when he woke up, the accused asked him to come inside as there were mosquitoes outside in the verandah. As per PW2, the accused took him inside the room and removed all his clothes and laid him. He further disclosed that the accused thereafter started to watch CDs of nude girls on computer and removed all his clothes and started to kiss on his lips and face. He further testified that after asking the accused, he went for urination and went back to his bed in the verandah where he was sleeping earlier.
15. PW2 further deposed that on the next day, when he came out after taking bath, accused told him that he would teach him to wear 'langot'. He further stated that he went to the same room where he was taken at night by the accused and the accused asked him to see upside and thereafter took his penis in his mouth. PW2 further stated that the accused told him that there was a thief at night and that he should not tell this fact to anyone, otherwise all the students will be in fear. According to the witness, on the same evening his mother called him at the number of the gurukul and he narrated all the things to her and asked her to take him from gurukul. PW2 further deposed that the incident took place at the night of 08.05.2005 and at day on 09.05.2005. PW2 correctly identified the accused in the court.
16. In his cross-examination by Ld. Counsel for defence, PW2 denied that he has been tutored by his father. He testified that he does not remember as to whether any admission form was filled at gurukul, or the fee structure or the number of workers working therein or the articles carried by him. He testified that he was called at the PS for identification of the accused. He denied that he was caught red handed while stealing the food articles and money from the office of gurukul and his father/PW1 was called due to the said reason. He further denied that due to the humiliation of his father/PW1, his father had threatened the gurukul acharyas to teach them a lesson and thereafter filed the present case. He testified State vs. FIR No. 144/2005 PS Kanjhawala Page No. 16 / 51 Acharya Paramdev that some CDs were recovered in his presence which were seized by the police officials. He denied that no such incident of sexual harassment occurred with him and he is deposing falsely as he has been tutored by his father. He further denied that the allegations levelled by him are false and concocted and due to this reason, he did not cooperate with the investigating agency and because of this reason statement of his mother was not recorded by police.
Police witnesses
17. PW3/ASI Jor Singh deposed that on 5.10.2007, the present case was marked to him by the concerned SHO and he got recorded the statement u/s 164 CrPC of the victim/PW2. He further deposed that he prepared the chargesheet and filed it before the court.
18. In his cross-examination, PW-3 denied that victim/witness (PW2) was tutored by him so as to create false evidence against the accused and he has conducted unfair investigation in the matter.
19. PW4/Retired Inspector Ram Kanwar Dahiya deposed that on 12.05.2005, he was posted as Sub-Inspector at PS Kanjhawala and on that day a complaint filed by PW1 was marked to him for inquiry. According to the witness, during inquiry he along with PW1 went to gurukul at village Tatesar and took the possession of one computer and 15 CDs from a room in gurukul. He further deposed that the computer was checked for nude pictures but nothing was found. He further disclosed that he took the computer and 15 CDs to the PS, and Acharya Paramdev (accused) also came to the PS along with Samiti members and the matter was compromised on the request of samiti on the ground that the child (PW2) is required to be examined in detail by the parents and if the allegations are found to be true then the FIR shall be lodged in the present case. He further deposed that on 24.05.2005, the present FIR along with rukka was handed over to him for investigation. During investigation, he prepared the site plan at the instance of PW2 Ex. PW4/A, recorded the statements of witnesses' u/s 161 CrPC and seized State vs. FIR No. 144/2005 PS Kanjhawala Page No. 17 / 51 Acharya Paramdev the alleged 15 CDs vide seizure memo Ex. PW/B. He further deposed that the case was thereafter transferred to Vigilance Branch by the order of ACP Sultanpuri. PW4 correctly identified the accused and the case property i.e., 15 CDs Ex. P1 (Colly).
20. In his cross-examination by Ld. Counsel for defence, PW4 testified that he remained at the spot for 1-1.5 hours and recovered the said CDs from a room at the ground floor. He further deposed that some CDs were recovered by him and some were provided by the accused. He further deposed that the said compromise took place verbally. He further deposed that the said computer was handed over to accused and the CDs were retained by him. He denied the suggestion that no computer was recovered from the spot. However, he admitted that no paper work was done while taking in possession the said computer and CDs. He further denied that he had never visited the spot and he is deposing falsely.
21. PW5/Retd. SI Kanwal Singh deposed that on 24.05.2005, he was posted as duty officer in PS Kanjhawala and registered the FIR Ex. PW4/A on the complaint of PW1 and made the endorsement Ex. PW4/B. On the direction of SHO concerned, he marked the investigation of the case to SI Ram Kumar.
22. In his cross-examination by Ld. Counsel for accused, he denied the suggestion that the FIR is antedated and ante timed.
23. PW6/ASI Rajpal deposed that on 14.11.2005, he was posted as HC in Vigilance Branch, N/W District, Ashok Vihar and on that day, SI Rajender handed over him a letter bearing no. 480/Inspector/Vig/NWD dated 14.11.2005 Ex. PW5/A with the directions to produce the same to Zonal Manager, MTNL, Rohini Zone, Delhi. He further deposed that the letter Ex. PW5/A was addressed to Zonal Manager, MTNL for verification about internet connection with respect to telephone no. 24902659. He has further stated that he went to MTNL, Zonal Manager, Rohini where he came to know that the information sought in the letter State vs. FIR No. 144/2005 PS Kanjhawala Page No. 18 / 51 Acharya Paramdev would be available with Kanjhawala Telephone Exchange. He further stated that on 17.11.2005, he went to Kanjhawala Exchange and handed over the letter Ex. PW5/A to SDO. He further deposed that SDO gave his report Ex. PW5/B stating that no internet connection is provided at the said telephone number. He thereafter handed over the report Ex. PW5/B to SI Rajender Pal.
24. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
25. PW7/Retd. SI Rajender Prasad deposed that on 13.07.2005, he was posted in Vigilance Branch, NW and the present file was marked to him for further investigation. He disclosed that on 22.07.2005, he went to the gurukul and met the Acharyas and members of the gurukul samiti and recorded their statements. He further stated that he also met the students of the gurukul and recorded their statements. According to the witness, after 7-10 days, he went to the house of the complainant (PW1) but the house was found locked and neighbors told him that the complainant has gone to his relative's home. He further disclosed that he again went to the house of the complainant after 5-7 days and asked for the statement of his son to which the complainant replied that he will tell him after consultation with his advocate. He further stated that after 15 days, complainant came to the office of DCP, NW and enquired regarding the progress of the case and at that time, he along with Insp. Banwari lal appeared before DCP/NW and DCP directed him and W/ASI Darshana to record the statement of PW2. He further testified that after 2-3 days, he along with W/ASI Darshana went to the house of the complainant and recorded the statement of PW2 but several times, complainant interrupted and used to tutor PW2 while recording his statement u/s 161 CrPC. He further disclosed that he thereafter wrote an application to SDO, Telephone Exchange. Kanjhawala in order to verify whether any internet connection was existing or not on telephone no. 24902659 on 08.05.2005 and after 2-3 days, PW5 collected the reply of the same. He further stated that on 17.12.2006, due to transfer, he handed over the file to Reader of Vigilance.
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 19 / 51Acharya Paramdev
26. In his cross-examination by Ld. Counsel for defence, PW7 stated that he had not made the list and recorded statements of all the Acharyas and students staying in the gurukul. He disclosed that he had recorded the statements of Rajpal, Anand Prakash, Chatar Singh, Kuldeep Singh, Rai Singh, Balraj Singh, Lalan Kumar as per their depositions. The same were exhibited as Ex. PW6/D1, Ex. PW6/D2, Ex. PW6/D3, Ex. PW6/D4, Ex. PW6/D5, Ex. PW6/D6 and Ex. PW6/D7 respectively during his cross-examination. He further stated that during the course of investigation, evidence collected by him and the statement of his witnesses, it was found that the complainant had lodged a false case against the accused. He further stated that so long as the investigation remained with him, neither the complainant nor PW2 cooperated in the investigation and every time despite his best efforts they refused to give their statements.
IV. STATEMENT / DEFENCE OF THE ACCUSED
27. Vide separate statement recorded u/s 294 CrPC, Ld. Counsel for accused admitted the genuineness of statement recorded u/s 164 CrPC Ex. P1. Accordingly, vide order dated 28.09.2019, PE was closed. In the statement recorded under Section 313 CrPC, accused stated that this is a false case against him and the same has been filed as a counter blast as the child was caught red- handed while committing theft. He further stated that the parents were informed and the child was handed over to them and therefore the present case has been filed. The accused opted to lead Defence Evidence.
V. DEFENCE EVIDENCE
28. In order to substantiate its case, defence has examined 3 witnesses in toto namely Kuldeep Singh ('DW1'), Hanumant Prasad ('DW2') and Sanjeev Kumar ('DW3').
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 20 / 51Acharya Paramdev
29. DW1/Kuldeep Singh deposed that he is the member of the managing committee of the gurukul and his job includes looking after the affairs of the gurukul and supervising the activities of the students and the teachers. He further stated that he used to also collect donations for gurukul and also do administrative work. He further stated that police had made enquiries from him in the present case and his statement Ex. PW6/D4 was recorded. He further deposed that the present case is false and baseless as no such incident occurred in the gurukul on the date and time as stated in the complaint. He disclosed that in the year 1998, certain teachers were fired since the govt. had declined the aids and due to this reason, a conspiracy was hatched by the said teachers as they wanted to have complete control over the affairs of the gurukul and usurp its valuable property. He further stated that alleged victim was a student in the gurukul and was caught red handed while stealing some coins from the office/room of Acharya Paramdev (accused). He further disclosed that the parents of PW2 were informed and the mother of PW2 came to gurukul and she took away her son. He further stated that on 11/12.05.2005, they were called at PS Kanjhawala, where the parents of PW2 apologized to them for the wrongdoing of their son and went away after compromising the matter. He further stated that thereafter we came to know that this false case has been registered against the accused. He further stated that the present case has been registered to tarnish the image of the gurukul and in order to grab its property. He further stated that according to him, this conspiracy was hatched between land grabbers and teachers who were removed from the job in the year 1998. He further stated that the office of the gurukul was used for administrative work and in the evening 5 teachers used to sleep in the said room/office on daily basis.
30. In the cross-examination conduced by Ld. APP, DW1 disclosed that as of now, he is not the member of the managing committee of the gurukul. He admitted that the fact regarding stealing of coins was disclosed by the accused and he was not a witness to the incident of stealing of coins by PW2. He further deposed that State vs. FIR No. 144/2005 PS Kanjhawala Page No. 21 / 51 Acharya Paramdev his signatures were not obtained on any compromise and he came to know about the compromise from the people who were present in the PS. He denied that he is an interested witness and has deposed falsely at the instance of the accused.
31. DW2/Hanumant Prasad deposed that he joined the gurukul in the year 2003 as Vice Principal and used to teach Atharva Veda to the students. He further disclosed that before 2003, the gurukul was financed by Delhi Govt. and thereafter, it was financially managed by virtue of donations received from the public at large. He further stated that since the financial aid was stopped by Delhi Govt., the teachers who were retrenched were contesting various litigations with the Delhi Govt. He further stated that he knows a student by the name M (PW2) who was admitted in gurukul in 2005. He further stated that the behavior of the said student was suspicious and he was sent back to his home on 10.05.2005. He further deposed that the student was sent back as he had stolen some money from the table of accused which was lying in his office cum residence. He further stated that the accused had called the parents of the said student and handed his custody to them. According to him, the present case has been registered owing to the reason that the parents of the said student did not want to take him back and threatened that they will malign the image of the gurukul by getting a false case registered against them. He further disclosed that after 4-5 days, they were called at the PS and enquiries were made from the child who stated that no such incident happened with him. He further stated that once again, they were called at the PS and due to instigation of some person, the present case was registered. He further deposed that the property of the gurukul is a prime property and some unscrupulous persons were having an evil eye over it. He further stated that the present case is an outcome of a conspiracy hatched between the teachers who were removed and land grabbers in order to malign the image of the gurukul.
32. In his cross-examination by Ld. APP, DW2 stated that he had met accused in Gokarana in the year 1996. He further stated that there used to be a computer in the office of the principal and he, Acharya and other officials had accessibility to State vs. FIR No. 144/2005 PS Kanjhawala Page No. 22 / 51 Acharya Paramdev the same. He further stated that they used to play the CDs of Ramyana, Mahabharata etc. and the said computer was not under any password. He further admitted that there was no other electronic device except the computer. He denied that he was not serving as a teacher in the gurukul when the alleged incident took place. He further denied that he is an interested witness and is deposing falsely.
33. DW3/Sanjeev Kumar deposed that in May, 2005, he was teaching at gurukul and a boy named M (PW2) was brought by his parents. He further disclosed that on examining him, he was not found suitable for admission but after the repeated requests of his father, he was kept in Ashram for eight days. He further stated that the child kept crying when left by his parents till the next day. He further disclosed that some money was also found missing from the table of Acharya and on search, the same was found with the child. He further deposed that call was made to the parents of the child to take him back and they came on the next day and the child was taken back to home. He further disclosed that when parents were living with the child, they threatened us saying that they will see us and thereafter filed a case against them. He further stated that after 3-4 days, police came at the gurukul and then we came to know that a case has been registered against accused and gurukul. He further deposed that the police checked the CDs and took them to PS. He further disclosed that a settlement was arrived between the parties. He further stated that there was some dispute of the staff who were removed after the govt. aid was stopped and the teachers who were removed were inimical towards the gurukul. He further stated that some villagers tried to capture and grab the land of gurukul and he cannot say whether PW1 was interested in grabbing the land.
34. In his cross-examination by Ld. APP, PW3 testified that there was only one computer in the office which was used collectively and the money was stolen from the table on which the computer was kept. He admitted that he has not brought any record register to show his employment with the gurukul at that State vs. FIR No. 144/2005 PS Kanjhawala Page No. 23 / 51 Acharya Paramdev time. He further deposed that they used to sleep in office and students used to sleep in different rooms. He further deposed that child M (PW2) used to sleep with other children. He further deposed that computer was not password protected and students were not allowed to operate the computer. He denied that he was not working as a teacher in the gurukul when the incident occurred and he is deposing falsely as he is an interested witness.
VI. SUBMISSIONS OF PARTIES
35. Sh. Dinesh Kumar, Ld. APP for the State has submitted that PW2/child has given a consistent account of the happening with him and there is nothing to doubt his credibility or veracity. He has further submitted that it is the quality of the evidence and not the quantity of evidence which is necessary for proving or disproving a fact and the accused should be convicted of the offence.
36. Sh. Ravi Chawla, Ld. Counsel for the complainant while assisting the Ld. APP has submitted that the testimony of PW2 is self-sufficient to bring home the charge against the accused. He has submitted that PW2 has given a consistent account of the incident in his statement u/s 161 CrPC, statement u/s 164 CrPC and during evidence in the court. He has next submitted that in the entire cross- examination of PW2, no suggestion has been put to PW2 so far as the offence is concerned. He has further argued that PW2 attained majority during his cross- examination in 2017 and therefore it cannot be stated that he has been tutored by PW1. He has also argued that PW1 has explained the reasons for delay in lodging in the FIR and the same cannot inure to the benefit of the accused. He has submitted that the court should take into account the surrounding circumstances and the reasons explained by PW1 in lodging the FIR while appreciating the evidence. So far as the defence evidence is concerned, he has highlighted the difference between the suggestion put to PW2 during cross-examination and the story narrated by the defence witnesses in their examination in chief. At the end, he has urged that the accused should be convicted of the offence charged. In State vs. FIR No. 144/2005 PS Kanjhawala Page No. 24 / 51 Acharya Paramdev support of his submissions, Ld. Counsel for complainant has relied upon Namdeo v. State of Maharashtra (2007) 14 SCC 150; Ganeshan v. State Represented By Its Inspector of Police (2020) 8 SCR 768.
37. Sh. Mukesh Kalia along with Sh. Siddharth Gaurav, Ld. Counsels for accused have pointed out the various improvements along with contradictions made by PW1 during his cross-examination. They have submitted that the entire testimony of PW1 is nothing but hearsay and is inadmissible in evidence. They have further argued that the unexplained delay in lodging the FIR casts a serious doubt on the genuineness and truthfulness of the allegations of the victim. Sh. Kalia argued that PW2 in his testimony has deposed that he had narrated all the things to his mother in the evening of 09.05.2005 and on the next day, his mother came to gurukul and took him home. However, the very first complaint was made on 12.05.2005 without any reference of sexual assault and the second complaint on which the present FIR came to be lodged was given on 24.05.2005 i.e., after a delay of 15 days. He has next submitted that as per PW2, she had narrated the whole incident to his mother but she has not been made a witness in the present case which is highly unnatural.
38. Sh. Kalia has further argued that PW1 apart from the local police had made complaint to several other agencies and all of them observed that PW2 was being tutored and PW1 never allowed PW2 to make any statement independently. He has submitted that this assertion is supported with the testimony of PW6 who stated that PW1 used to tutor PW2 while recording of his statement u/s 161 CrPC. He has further urged to take into account that during the entire investigation and materials collected, PW6 was of the view that the complainant/PW1 has lodged a false complaint against the accused.
39. So far as the statement of PW2 u/s 164 CrPC is concerned, he submitted that the same was recorded after more than 2 years and 5 months from the date of the alleged incident and is prone to manipulation and tutoring. He has argued that in State vs. FIR No. 144/2005 PS Kanjhawala Page No. 25 / 51 Acharya Paramdev the present case, the application for recording of statement of PW2 u/s 164 CrPC was not sponsored by the investigating agency and therefore, the same cannot be relied upon. He has also submitted that the first-time identification of accused after almost 7 years from the date of alleged incident without any judicial TIP cannot be treated as proper identification of the accused. He has next urged this court to consider that neither any incriminating material in the form of CDs were recovered nor any internet connection was found to substantiate the allegations of PW2.
40. It is further submitted by Ld. Counsel that the witnesses cited by prosecution from Serial No. 3 to 9 in the list of witnesses, all do not support the case of the prosecution and in such an eventuality, there is no logical reason to doubt their version/statement. He has also urged that version of the defence witnesses clearly shows that the allegations levelled by the complainant are false and fabricated and is a result of the conspiracy hatched between the land mafias and few others in order to usurp the land belonging to gurukul and to take its administrative control. In support of his submissions, he has placed reliance Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra (2008) 12 SCC 565; Manoj Gautam v. State of Haryana CRA S-3454-SB-2017 (O & M) of Hon'ble Punjab and Haryana High Court; Babu @ Rahul Jagtap v. State of Madhya Pradesh Cr. Appeal No. 349/2013 of Hon'ble Madhya Pradesh High Court; Tahsildar Singh & Anr. v. State of UP AIR 1959 SC 1012; Jogender Nahak & Ors. v. State of Orissa & Ors. (2000) 1 SCC 272; Panchhi & Ors. v. State of UP (1998) 7 SCC 177; Jagjit Singh @ Jagga v. State of Punjab (2005) 3 SCC 689; State of T.N v. Suresh & Anr. (1998) 2 SCC 372; Rameshwar v. State of Rajasthan AIR 1952 SC 54 and P. Ponnuswamy v. State of Tamil Nadu 2022 SCC Online SC 1543.
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 26 / 51Acharya Paramdev VII. APPRECIATION OF EVIDENCE: ANALYSIS AND FINDINGS
41. I have heard the submissions of Ld. APP, Ld. Counsel for complainant and the Ld. Counsels for accused and perused the record along with the written submissions filed by the parties. Before embarking on the exercise of appreciating the evidence, it is apt to take note of a contention of Ld. Counsel for complainant. He has submitted that though charge u/s 377 IPC has not been framed against the accused, this Court has ample power to alter or add any charge u/s 216 CrPC before the judgment is pronounced. After careful consideration of record, it is found that the cognizance of the offence was taken specifically u/s 293 IPC and the accused was discharged of the offence punishable u/s 377 IPC vide order dated 02.09.2008. This order was not challenged either by the State or the complainant and therefore, the provisions of Section 216 CrPC cannot be utilized for reviewing the order of discharge. The contention of the Ld. Counsel for complainant is untenable in law.
Hearsay Evidence of PW1
42. To accomplish the purpose of proving the case, prosecution has produced PW1 & PW2 as the material witnesses. It has been argued by Ld. Counsel for defence that PW2 has specifically stated that he had narrated all the events to her mother and in any case, the testimony of PW1 is nothing but hearsay evidence. Without reiterating all the contents of the testimony of PW1, it is suffice to note that the testimony of PW1 on the aspect of the narration of the events/allegations as told to him by PW2 or his wife is nothing but hearsay and is inadmissible in evidence. Section 60 of the Evidence Act prescribes that the oral evidence must be direct and must be given by the person by the person who has directly heard, seen or sensed the fact. In this context, reference can be made to Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr. (2011) 2 SCC 532, wherein Hon'ble Supreme Court while dealing with hearsay rule of appreciation of evidence has noted:
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 27 / 51Acharya Paramdev "18. The word 'evidence' is used in common parlance in three different senses: (a) as equivalent to relevant (b) as equivalent to proof and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts. Though, in the definition of the word "evidence" given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as : best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. The idea of best evidence is implicit in the Evidence Act. Evidence under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature. These principles are expressed in Sections 60 and 64 of the Evidence Act.
19.The term 'hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of State vs. FIR No. 144/2005 PS Kanjhawala Page No. 28 / 51 Acharya Paramdev them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.
21. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.
22.The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal State vs. FIR No. 144/2005 PS Kanjhawala Page No. 29 / 51 Acharya Paramdev responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me", (b) truth is diluted and diminished with each repetition and (c) if permitted, gives ample scope for playing fraud by saying "someone told me that...........". It would be attaching importance to false rumour flying from one foul lip to another. Thus, statement of witnesses based on information received from others is inadmissible."
43. Significantly, PW2 in his deposition has stated that he had narrated the entire episode to his mother and thus, the deposition of PW1 with respect to information received from PW2 or his wife regarding the episode/allegations in issue are hearsay and therefore, inadmissible in evidence. The Court should not be misunderstood that in such an event the entire testimony of PW1 has been written off altogether. PW1 is a witness to the entire investigation conducted in the present matter and that part of the testimony which is credit worthy and reliable can still be acted upon.
Testimony of Child witness (PW2)
44. Significantly, the Indian Evidence Act, 1972 ('Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has the intellectual capacity and give rational answers thereto. The law on this aspect has been distilled in Nivrutti Pandurang Kokate & Ors. v.
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 30 / 51Acharya Paramdev State of Maharashtra (2008) 12 SCC 565 wherein the Hon'ble Supreme Court held:
"8. ... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make- believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
45. In Panchhi v. State of UP AIR 1998 SC 2726, the Hon'ble Supreme Court observed that the evidence of a child witness cannot be rejected outright. However, the said evidence ought to be carefully evaluated and scrutinized with greater circumspection because a child is susceptible to be swayed by what others tell him and can be an easy prey to tutoring. The Court must assess as to whether the statement of the victim in his voluntary expression of what had transpired or was it made under the influence of others.
46. In State of Rajasthan v. Omprakash (2002) 5 SCC 745, the Hon'ble Supreme Court elaborated the approach that Courts must adopt in cases of child testimony, as follows:
"13. The conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim is well settled proposition. In State of Punjab v. Gurmit State vs. FIR No. 144/2005 PS Kanjhawala Page No. 31 / 51 Acharya Paramdev Singh & Ors. [(1996) 2 SCC 384], referring to State of Maharashtra v. Chandraprakash Kewal Chand Jain [(1990) 1 SCC 550], this Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr. Justice A.S. Anand (as His Lordship then was), speaking for the court, that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
47. On a close scrutiny of evidence of PW2, it is found that he has been consistent and very clear in not only pointing out the accused but where he was taken and what was done with him. PW2 has been consistent in all material facts relating to the incident and in his testimony, he has mostly reiterated what was recorded earlier in his statement u/s 164 CrPC. PW2 reiterated the fact that on the fateful day, he along with other students was sleeping in the Verandah and at about 1.00/1.30 am, Acharayaji (whose name he did not remember) came to him and flashed the light of torch on his face to see whether he was sleeping or not. He has further disclosed that when he woke up, the accused asked him to come inside as there were mosquitoes outside in the verandah. As per PW2, the accused took him inside the room and removed all his clothes and laid him on a takht and thereafter started to watch CDs of nude girls on computer and thereafter also removed all his clothes and started to kiss on his lips and face. He further testified State vs. FIR No. 144/2005 PS Kanjhawala Page No. 32 / 51 Acharya Paramdev that after asking the accused, he went for urination and went back to his bed in the verandah where he was sleeping earlier. PW2 has further stated that on the next day, when he came out after taking bath, accused told him that he would teach him to wear 'langot' and thereafter took him to the same room where he was taken at night and the accused asked him to see upside and thereafter took his penis in his mouth. PW2 further testified that the accused told him that there was a thief at night and that he should not tell this fact to anyone, otherwise all the students will be in fear.
48. It is further pertinent to point that the during his cross-examination in 2017, PW2 was a major and has categorically denied the suggestion put to him that he has been tutored by his parents so as to tarnish the image of Acharya of gurukul. The testimony of the child is reflective of the fact that he understands the duty of speaking the truth and was able to discern between right and wrong. It is also apparent that PW2 understood the implications what he was saying. During his deposition, he firmly stood by his statement as recorded u/s 164 CrPC and minced no words in explaining the events of crime committed by accused, without any improvement or embellishment. There is no reason to believe that he was tutored by his father. No motive can be attributed to a child of such a tender age and that too in a case when no malice has been shown on his part by the defence.
49. The victim has also categorically denied the case of the accused that he was caught red handed while stealing food articles and money from the office of gurukul and his father was called to gurukul due to this reason and he was humiliated and therefore the present case has been filed. Nothing has emerged in the cross-examination of PW2 which could shake his credibility despite he being subjected to lengthy cross-examination. Significantly, the entire cross- examination is silent so far as the offence is concerned. No questions have been put doubting the presence of victim or accused in the gurukul or the presence of the computer or the acts committed by the accused on the night of the fateful day State vs. FIR No. 144/2005 PS Kanjhawala Page No. 33 / 51 Acharya Paramdev or the next morning. It is fairly well settled that if the opponent asks no question to the witness produced by the prosecution, then it must be taken that the version of the said witness is accepted by him. (AEG Carapiet v. AY Derderian AIR 1961 Cal 359; Ashis Sen & Ors. v. Arun Kumar Bose & Ors. 2006 SC Online Cal. 131; Ravinder Singh v. State (NCT of Delhi) 197 (2013) DLT 99 (DB) and Vipin Kumar Saini v. State 257 (2019) DLT 772 (DB)).
50. There is no rule that in instances of child testimony, there should invariably be corroborative evidence in all circumstances, irrespective of the facts of a given case. In the case of the present nature, where there is no witness to such an act except the victim himself, the Court cannot insist on corroborative evidence, if the evidence of the child is otherwise found creditworthy. Having perused the entire deposition of PW2, the child witness, no impression can be gathered that his statement suffers from the vice of tutoring or it is controversial or full of contradictions so as to raise a doubt about its correctness.
Delay in lodging the FIR and recording of statement u/s 164 CrPC
51. Coming to the first claim of the Ld. Counsel for the accused about the delay in lodging the FIR, it is relevant to point out that PW1 has given satisfactory explanation for the delay in lodging the FIR. The plausibility of the explanation forthcoming from PW1 reasonably explains the delay in lodging the FIR and must fall for consideration in light of all the facts and circumstances of the case. PW1 during his deposition has maintained that he went to police station on 12.05.2005 and gave a written complaint and ASI Ram Kumar Dahiya made enquiries from his son and thereafter took him along with PW2 to gurukul along with two other persons. It has further emerged that 15-20 packets of CDs were recovered and thereafter, all of them came back to PS and waited for the directions of SHO. He has further stated that meanwhile 35-40 supporters of accused entered the PS and pressurized the SHO not to take any further action in the matter. He further explained that the supporters of accused also threatened him to withdraw his complaint against the accused. PW1 has further testified that State vs. FIR No. 144/2005 PS Kanjhawala Page No. 34 / 51 Acharya Paramdev SHO torned the receipt of his complaint and removed the second and third page of his complaint and thereafter got a compromise done between them as per his wish. He further disclosed that the recovered CDs were returned to accused and thereafter, he gave a complaint against SHO, Kanjhawala to all the higher authorities. He further stated that on 24.05.2005, he along with his son/PW2 personally met DCP Sh. Rajesh Khurana and on his direction, the FIR was got registered in the present matter. In Apren Joseph @ Current Kunjukunju & Ors. v. State of Kerala (1973) 3 SCC 114, the Hon'ble Supreme Court held:
"11. Now first information report is a report relating to the commission. of an offence given to the police and recorded by it under s. 154, Cr. P.C. As observed by the Privy Council in H.E. v. Khwaja the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under s. 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonably for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation for the coming for such delay accordingly must fall for consideration on all State vs. FIR No. 144/2005 PS Kanjhawala Page No. 35 / 51 Acharya Paramdev the facts and circumstances of a given case."
52. In the case at hand, PW1 has reasonably explained the delay and the mere delay in lodging the FIR cannot inure to the benefit of accused. The explanatory evidence of PW1 seems to be trustworthy and has not at all be shaken in cross- examination. Indeed, there is hardly any effective cross-examination or suggestion on the point eliciting any information indicative of suspicion with respect to any motive for falsely implicating the accused. The unreasonable inaction on the part of the concerned police official who had knowledge about the victim, the accused and the incident but yet chose, not to register the FIR cannot by itself raise any suspicion on the case of the prosecution.
53. It has been further canvassed by the Ld. Counsel for accused that the statement of PW2 u/s 164 CrPC was recorded after almost 2 years and 5 months from the date of incident and the same was not sponsored by the investigating agency. In this context, he has placed reliance on the judgment of Hon'ble Supreme Court in Jogender Nahak & Ors. v. State of Orissa & Ors. (2000) 1 SCC 272. He has argued that there is every possibility that the same has been tutored and not voluntarily made.
54. The argument of Ld. Counsel for accused that the application for recording of statement of PW2 u/s 164 CrPC was not sponsored by the investigating agency does not find support from the record as the application was moved by ASI Jor Singh/PW3 on 30.10.2007. Thus, the judgment in Jogender Nahak (supra) is not applicable to the facts of the present case. In this context, the Hon'ble Bombay High Court in Patiram v. State of Maharashtra (2002) SCC Online Bom 1071 has noted:
"14. The Apex Court in para 24 of its judgment has categorically observed that the Apex Court was disinclined to interpret Section 164(1) of the Code of Criminal Procedure as empowering the Magistrate to record statement of a person unsponsored by the State vs. FIR No. 144/2005 PS Kanjhawala Page No. 36 / 51 Acharya Paramdev Investigating Agency. These observations, in no uncertain terms, convey that the Apex Court neither Intended to interpret the provisions of Section 164(1) or any other sub-clause of Section 164 of the Code. The Apex Court in Para 22 has made observations in respect of the Magistrate, who is not expected to record statement under Section 164 of the Code without the Investigating Officer moving for it and this does not indicate that such statement, if recorded by the Magistrate, is either inadmissible in law or cannot be admitted in the evidence. The Apex Court was more concerned about the ensuing consequences if such practice is adopted by the Magistrate which, in a given case, may be helpful to the culprit to shield his crime."
55. So far as the argument of delay in recording the statement u/s 164 CrPC and it being prone to manipulation is concerned, Ld. Counsel for accused has placed reliance upon Jagjit Singh @ Jagga v. State of Punjab (2005) 3 SCC 689, State of T.N v. Suresh & Anr. (1998) 2 SCC 372; Rameshwar v. State of Rajasthan AIR 1952 SC 54. In Jagjit Singh (Supra), the Hon'ble Court did not rely upon the testimony of the child on the ground that certain facts stated by her during her deposition were not found in her earlier statements recorded u/s 161 CrPC and Section 164 CrPC and thus, came to the conclusion that the delay in examination u/s 161 CrPC and 164 CrPC gave opportunity for being tutored. The reliance placed on this judgment is of no avail since the factum of the aforesaid judgment are different from the evidence in the present case. It is not the case of the accused that PW2 has not stated certain facts or has made any improvements vis-à-vis his statement u/s 164 CrPC. On the contrary, the child witness has remained consistent throughout and has minced no words in explaining the events of crime committed by accused.
56. In Suresh & Ramesh (Supra), the Hon'ble Court laid down that the expression "at or about the time when the fact took place" under Section 157 of the Evidence Act should be understood in the context according to the facts and circumstances State vs. FIR No. 144/2005 PS Kanjhawala Page No. 37 / 51 Acharya Paramdev of each case and the test that should be adopted is whether the witness have the opportunity to concoct or being tutored. It further observed that mere fact that was an intervening period may not be sufficient to exclude the statement from the use as envisaged by Section 157 of the Act. The aforesaid judgments cited by Ld. Counsel for accused do not support his case. It is the well settled principle that a statement of a witness u/s164 CrPC is not a substantive piece of evidence but it is a former statement and can be used either to corroborate or contradict the evidence of the person in the court. If a statement of the witness has been recorded u/s164 CrPC, it leads to an inference that there was a time when the police thought that the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 CrPC will not be sufficient to discard it. (Ram Charan & Ors. v. State of UP AIR 1968 SC 1270). In the context of this judgment, the mere delay in getting the statement recorded of the victim/PW2 u/s 164 CrPC would not automatically dilute the worth of his statement u/s 164 CrPC and the evidence in the court particularly when, PW2 has remained consistent throughout his testimony. The delay of the IO to get the statement recorded of PW2 u/s 164 CrPC cannot be viewed as having been made involuntarily or being tutored or being doubtful as it is not within the domain of the victim to get his statement recorded u/s 164 CrPC.
Failure to hold Test Identification Parade ('TIP')
57. As for the plea of Ld. Counsel for accused that the prosecution had failed to conduct the TIP of accused and he had been identified by the victim for the first time in Court, it may be emphasized that the underlying purpose of a prior test identification is to put to test, the trustworthiness of that evidence. In the case of Malkhan Singh & Ors. v. State of Madhya Pradesh (2003) 5 SCC 746, after examining the earlier decisions on the effect of not holding prior test identification parade, the Hon'ble Supreme Court held as under:
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 38 / 51Acharya Paramdev "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact.
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10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court."State vs. FIR No. 144/2005 PS Kanjhawala Page No. 39 / 51
Acharya Paramdev
58. As can be seen from the above, failure to hold a TIP cannot make the evidence of identification in the Court, inadmissible. The TIP only corroborates the identification of the witness in the Court, if necessary. However, each case has to be examined on its own facts to see the extent of weightage that can be attached to such an identification. In the present case, failure to hold a test identification of accused is not fatal to the prosecution case as the accused was not completely stranger to PW2. Nor is it anybody's case that PW2 had such a fleeting glimpse of the accused that he was not in a position to recognize him. It has been proved in evidence that PW2 has remained in the gurukul for 2 days which was sufficient time for him to have identified the accused from the memory imprinted in his mind after the horrendous incident committed by accused, without a TIP having been conducted.
Non-Recovery of CDs or any other incriminating articles
59. Another limb of argument raised by Ld. Counsel for defence is that apart from the statement of PW2 that the accused watched the CDs of nude girls on the computer nothing incriminating has been recovered either in the form of CDs or otherwise to substantiate the allegations of PW2. He has further submitted that it is apparent from the testimonies of PW4 and PW6 that there was neither any internet connection nor any nude pictures were found in the computer when it was checked. He has placed reliance Babu @ Rahul Jagtap v. State of Madhya Pradesh Cr. Appeal No. 349/2013 of Hon'ble Madhya Pradesh High Court to submit that non-recovery of any material in the form of CDs or otherwise creates a serious doubt on the story of the prosecution. Reliance placed upon the aforesaid judgment is of no avail to defence as the present case is not one based on mere conjectures or surmises. In the aforesaid judgment, the court has acquitted the accused persons as the statement of complainant was not found reliable coupled interalia with the fact of non-recovery of video recordings. In the present case, non-recovery of any incriminating CDs cannot alone be taken State vs. FIR No. 144/2005 PS Kanjhawala Page No. 40 / 51 Acharya Paramdev as a ground to exonerate the accused of the charge, more so when his participation in the crime is unfolded in ocular account of the occurrence given by the PW2, which has been found to be clinching, trustworthy and reliable.
60. Significantly, the testimonies of PW1 & PW4 are relevant on this aspect. PW1 has deposed that on 12.05.2005, he along with PW4, PW2 and others went to gurukul and PW4 went to the room of accused and played 4 CDs out of which 3 were found to be obscene. It is further stated by him that PW4 recovered 15-20 packets of CDs along with some loose CDs and came back to PS. He has further stated that the recovered CDs were returned to accused, after the supporters of accused threatened him and pressurized the SHO not to lodge FIR against the accused. This fact finds support from the testimony of PW4 who stated that on 12.05.2005, on reaching the gurukul, he had taken the possession of the computer and 15 CDs from the room disclosed by the victim. However, he has deposed that the computer was checked for nude pictures but nothing was found. Interesting, DW3 has also corroborated the fact when he says "After 3-4 days police came at Gurukul, then we came to know that a case has been registered against Acharya Paramdev and Gurukul. Police Checked the CD in the computer and CDs were taken to PS." It is further relevant to note that it is no body's case that the nude pictures were stored in the computer or the accused was watching the porn by using the internet and therefore the argument that neither any internet connection nor any nude pictures were found in the computer deserves to be rejected.
Investigation and Evidence of IO
61. Coming next to the argument advanced by Ld. Counsel for defence that PW7 has deposed that during the entire investigation and material collected by him, he was of the view that the complainant has filed a false case against the accused, itself renders the prosecution's case untrustworthy entitling the accused benefit State vs. FIR No. 144/2005 PS Kanjhawala Page No. 41 / 51 Acharya Paramdev of doubt. It is settled position of law that if there are discrepancies, contradictions or omissions, the entire evidence cannot be discarded outright. In such an eventuality, it is the duty of the court to sift the evidence so as to separate the truth from falsehood, after exercising due care and caution so that all exaggerations, embellishments and improvements can be thrown out. On doing so, the Court is empowered to arrive at a conclusion that the remaining evidence would still be sufficient to convict the accused. The law on this aspect has been distilled in Sohrab & Anr. v. State of MP (1972) 3 SCC 751; State of UP v. MK Anthony (1984) 1 SCC 505; State of Rajasthan v. Omprakash (2007) 12 SCC 381 and Essa & Ors. v. State of Maharashtra, through STF, CBI Mumbai (2013) 3 Scale 1. It is relevant to note that PW7 in one breath says that, he found during the course of investigation that the complainant has lodged a false case and subsequently says that, so long as the investigation remained with him, the complainant or his son/PW2 did not cooperate in the investigation or refused to give the statement. It is highly incomprehensible to a reasonable mind to assess as to how PW7 reached such a conclusion when he admittedly was not able to complete the investigation due to non-cooperation of PW1 or PW2. So far as the evidence of PW7 is concerned that PW1 did not allow PW2 to make any statement independently and used to interfere is not corroborated from the record as there is no statement of PW2 u/s 161 CrPC. The conclusion of PW7 is a mere opinion based on incomplete investigation and does not in any manner affect the case of the prosecution and that is the reason, the other IO of the case ASI Jor Singh/PW3 filed the charge sheet against the accused and not a closure report. In this context, reference may be made to the judgment of Hon'ble Supreme Court in Sachin Kumar Singhania v. State of Madhya Pradesh 2019 SCC Online SC 363 has laid down to the effect that justice ought not to become a casualty because of minor mistakes committed by the Investigating Officer and that the criminal trial is to be conducted to ascertain the guilt or innocence of an accused arraigned and that in arriving at a conclusion about the truth, the Courts State vs. FIR No. 144/2005 PS Kanjhawala Page No. 42 / 51 Acharya Paramdev are required to adopt a rational approach and to judge the evidence by intrinsic words and animus of the witnesses. The observations read as:
"18. At this juncture, we would like to recall that it is well settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that if the Investigation Officer suppresses the real incident by creating certain records to make a new case altogether, the Court would definitely strongly come against such action of the Investigation Officer. There cannot be any dispute that the benefit of doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently such inefficient investigation would accrue to the benefit of the accused. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial."
62. The verdict of the Hon'ble Supreme Court in Dhanraj v. State of Punjab (2004) 3 SCC 654 is also relevant on the issue in contention. The Hon'ble Court in unequivocal terms has observed that defective investigation does not by itself suffice to acquit an accused person in as much as it is for the Court to examine de hors the omissions committed by the Investigating agency to find out whether the evidence put forth is reliable or not. The observations are to the effect:
"4. ......Though the deceased and the complainant had criminal track records that per se will not affect the State vs. FIR No. 144/2005 PS Kanjhawala Page No. 43 / 51 Acharya Paramdev evidence of witnesses if it is otherwise credible and cogent. Both the trial Court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to investigate the evidence is that of the police and when the police has given clean chit, that should prima facie be accepted is clearly without substance.
5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh vs State of M.P.: 1995CriLJ4173).
6. In Paras Yadav and Ors. v. State of Bihar:
1999CriLJ1122 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise, the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors.: 1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-iterated in Amar Singh v. Balwinder Singh and Ors.:
2003CriLJ1282. As noted in Amar Singh's case (supra) it would have been certainly better if the fire arms were sent to the forensic test laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to State vs. FIR No. 144/2005 PS Kanjhawala Page No. 44 / 51 Acharya Paramdev it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version."
63. As has been held, primacy cannot be given to the opinion of the IO and his opinion should invariably be accepted is clearly without any substance. The defective investigation in the present case of the IO concerned is not fatal to the prosecution once the ocular testimony of PW2 fully establishes the prosecution version and has been found to be credible and cogent.
Dropping/Non-examination of witnesses by the Prosecution not supporting its case
64. The next argument advanced by the Ld. Counsel for defence is that the witnesses cited by prosecution from Serial No. 3 to 9 in the list of witnesses, all do not support the case of the prosecution and in such an eventuality, there is no logical reason to doubt their version/statement. He has urged that it is not in the canons of justice to drop the witnesses who do not support the case of the prosecution. This argument has been recorded only to be summarily rejected. It is fairly well settled that Public Prosecutor has a coruscating role in the administration of justice in so far as picking and choosing, giving up or closure, the deletion or addition of prosecution witnesses for the criminal trial in his attempt to unravel the truth and help the court in arriving at a just decision. In Banti @ Guddu v. State of Madhya Pradesh (2004) 1 SCC 414, the Hon'ble Supreme Court while explaining the duty of Public Prosecutor held:
"12. In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1993 (for short 'the Code') enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence the proposes to adduce for State vs. FIR No. 144/2005 PS Kanjhawala Page No. 45 / 51 Acharya Paramdev proving the guilty of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the Court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.
13. When the case reaches the stage envisaged in Section 231 of Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the persecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved form repetition depositions on the same factual aspects. That principle applies when there are too many witnesses cited, if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.
14. The situation in a case where the persecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the State vs. FIR No. 144/2005 PS Kanjhawala Page No. 46 / 51 Acharya Paramdev other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court."
65. The same position has also been explained by Hon'ble Supreme Court in Hukam Singh and Ors. v. State of Rajasthan 2001 Cri LJ 511 (SC). The witnesses cited from serial No. 3 to 9 were not supporting the version of the prosecution in their statement recorded u/s 161 CrPC and as held it is within the province of the public prosecutor to make a formative assessment of the position of witnesses. The non-examination of those witnesses cannot be a factor to completely throw out the prosecution version when otherwise cogent and trustworthy evidence has been adduced by the prosecution in proving the guilt of accused beyond reasonable doubt.
Defence Version
66. It has been further urged that version of the defence witnesses clearly shows that the allegations levelled by the complainant are false and fabricated and is a result of the conspiracy hatched between the land mafias and few others in order to usurp the land belonging to gurukul and to take its administrative control. Since much stress has been laid on the version of defence witnesses, I have carefully gone through the same. At the outset, it is relevant to note that during the cross-
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 47 / 51Acharya Paramdev examination of PW1 and PW2, the accused has projected his case by giving three different suggestions to the witnesses. First, being that PW2 was caught red handed while stealing food articles and money from the office of gurukul due to which PW1 was called and PW2 had confessed regarding the same and due to this humiliation, the present case has been filed. Second, the present case has been filed on false grounds in connivance with the teachers who were removed from the service by the managing committee. Third, the present case has been filed in connivance with one Krishan Pehlwan (jija of complainant) to usurp the land of the gurukul. It may also be pointed out that the accused during recording of his statement u/s 313 CrPC has only offered the first suggestion to explain the incriminating circumstances and has not stated anything with regard to other two suggestions.
67. Significantly, the first suggestion has not been supported by any of the Defence Witnesses. DW1 has stated that PW2 was caught red handed while stealing some coins from the office/room of Acharya Paramdev. It does not state anything with regard to stealing of food articles. During his cross-examination, the claim of DW1 that PW2 was caught red handed falls on the ground as he disclosed, that the fact regarding stealing of coins was disclosed to him by the accused and he had not witnessed the alleged act of PW2. Similarly, DW2 also deposed regarding the stealing of money only and not the food articles. DW2 further goes on to state that in his opinion, the present case has been registered owing to the reason that parents of the child did not want to take him back and threatened that they will malign the image of the gurukul by getting false case registered. Interestingly, DW3 also deposed regarding the theft of money only and goes on to state that on search the money was found with the child. He does not state anything regarding PW2 being caught red handed or the place of theft. It is also relevant to note herein that DW1 has stated that mother of PW2 had come to take her back whereas DW2 & DW3 says that the parents of the said child came to the gurukul.
State vs. FIR No. 144/2005 PS Kanjhawala Page No. 48 / 51Acharya Paramdev
68. So far as the second and third suggestions are concerned, it is relevant to point out that the same also do not inspire confidence of this court. The second suggestion relates to connivance between teachers and PW1 who were removed from service in the year 1997-98. This does not even appeal to common sense as it is highly inconceivable that PW1 will connive and conspire with the teachers after almost 8 years when they were removed from service to grab the property of gurukul. The third suggestion relates to connivance between one Krishan Pehlwan (jija) and PW1 to usurp the property of gurukul. It is pertinent to note that the entire evidence of the witnesses is silent as to this suggestion. It is true that the defence evidence is not to be ignored and like any other evidence, it has to be tested on the touchstone of reliability, credibility and trustworthiness. However, the evidence led by accused does not support his case and inspire confidence of the Court more particularly in view, that there is no previous enmity or plausible reason that has been shown on the part of PW2 for falsely implicating the accused.
69. It is a well settled principle that justice cannot be made sterile by exaggerated adherence to the rule of proof, in as much as the benefit of doubt given to an accused must always be reasonable, and not fanciful and that merely because certain discrepancies in the evidence and procedural lapses have been brought on record, the same would not warrant giving the benefit of doubt to accused. The facts having been duly proved by the prosecution it is now to be seen whether they are sufficient to prove the charge against the accused.
Section 293 IPC
70. The provision of Section 293 IPC reads as: "Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished on first conviction with imprisonment of State vs. FIR No. 144/2005 PS Kanjhawala Page No. 49 / 51 Acharya Paramdev either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees."
71. For attracting the provisions of Section 293 IPC and convicting a person thereunder, it is incumbent upon the prosecution to prove that an obscene object as referred to in Section 292 IPC was sold, circulated or exhibited etc. by the accused and the person to whom said object was sold, circulated or exhibited etc. was below 20 years. Section 292 (1) makes it clear that the picture or article shall be deemed to be obscene i) if it is lascivious; ii) it appeals to the prurient interest and iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter alleged to be obscene. A material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeal to the prurient interest and tends to deprave and corrupt who are likely to read, see or hear the matter alleged to be obscene (Director General of Door Darshan v. Anand Patwardhan (2006) 8 SCC 433).
72. It emerges from the testimony of PW2 that on the relevant date, he was took inside the room by the accused and thereafter, the accused removed all his clothes and laid him on a takht and started watching CDs of nude girls on the computer. It has further emerged on record that thereafter accused removed all his clothes and started to kiss on his lips and face. It has been further proved that PW2 got afraid and after asking the accused, went for urination and went back to his bed in the verandah where he was sleeping earlier. It is not in dispute that PW2/victim was less than 20 years of age at the time of commission of offence. It is relevant to note that the exhibiting/watching nude girls on the computer in front of young child are an incentive to sensuality and to excite impure thoughts in the mind of minor boy. The minds of children are impressionable and exhibiting material in the form of nude girls to them, have a tendency to excite lustful thoughts/sexual State vs. FIR No. 144/2005 PS Kanjhawala Page No. 50 / 51 Acharya Paramdev passion and give rise to emotions of lewdness and repulsiveness. The attenuating circumstances also shows that the accused removed all his clothes and the clothes of PW2 and started kissing on his lips and face. Thus, on a consideration of entire evidence, charge under Section 293 stands duly proved against the accused beyond any reasonable doubt.
73. The case of the prosecution against the accused is cogent and trust worthy and, in the opinion of this court, the prosecution has succeeded in bringing home the guilt of accused on the standard of beyond reasonable doubt by proving the necessary ingredients of the charged offence. As a sequitur of the above discussion, accused Acharya Paramdev S/o Shri Swami Jagdishvaranand stands convicted for the offence punishable under Section 293 IPC.
Announced in Open Court on 27th (Ayush Sharma)
September 2023 MM-02, North-West District
Rohini Courts/27.09.2023
This judgment consists of 51 pages and each and every page of this judgment is signed by me.
(Ayush Sharma) MM-02, North-West District Rohini Courts/27.09.2023 State vs. FIR No. 144/2005 PS Kanjhawala Page No. 51 / 51 Acharya Paramdev