Delhi District Court
Gulab @ Gulla S/O Sh. Sumat Ram vs State on 29 May, 2019
In the court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District.
Saket Court, New Delhi
Criminal Appeal No. 8301/2016
In the matter of
Gulab @ Gulla S/o Sh. Sumat Ram
R/o Jhuggi Sanjay Colony,
Bhati Mines, New Delhi ....Appellant/ Accused
Versus
State .... Respondent
AND
Criminal Appeal No. 8302/2016
In the matter of
Sunil S/o Sh. Lotu Ram
R/o Jhuggi Sanjay Colony,
Bhati Mines, New Delhi ....Appellant/ Accused
Versus
State .... Respondent
FIR No. 355/2005
P.S Mehrauli
U/s 377/506(II)/34 IPC
CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 1 of 10
JUDGMENT
1. Both the aforesaid criminal appeals have been filed for challenging the impugned judgment dated 31.05.2016 and order on sentence dated 08.08.2016 whereby the appellants/accused persons Gulab @ Gulla and Sunil are convicted for offences u/s 377/506(II)/34 IPC and sentenced to undergo rigorous imprisonment of 02 years RI for offence u/s 377 IPC by each of them and to undergo rigorous imprisonment of 6 months for offence u/s 506(II) IPC. In addition thereto, both the accused are also directed to pay fine of Rs. 10,000/ (by each of them) to be paid to the victims as compensation for offences u/s 377 & 506(II)/34 IPC. In default of payment of fine, each of them will further undergo SI of one month, in addition to sentence imposed on them.
2. Brief facts of the case are that on 13.06.2005, complainant Bal Kishan alongwith his father came to the Police Post, thereafter, his statement was recorded in which he alleged that on 11.06.2005, at about 8.30 a.m, he went for toilet in the jungle towards zoo and while coming back, he was caught hold by accused Sunil and Gulla of their colony who scared him that if he will raise alarm, they will kill him and started giving slaps and fists blows, thereafter, they opened his clothes, Gulla caught hold of him and Sunil did wrong acts with him, then Sunil caught hold of him and Gulla committed wrong acts with him, but after hearing the noise of some persons, they left the place leaving him there. However, due to fear and shame he did not tell these facts to anybody, and told these facts to his father today itself who brought him to the police station. Pursuant to this CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 2 of 10 statement, FIR No. 377/506/34 IPC was registered.
3. During investigation, site plan was prepared. Statement of witnesses were recorded. Medical examination was conducted. On completion of investigation, chargesheet was filed. After being summoned, charges u/s 377/506/34 IPC were framed against both the accused on 23.08.2005 to which they pleaded not guilty and claimed trial.
4. Prosecution in order to substantiate its case examined eight witnesses. Summary details of their deposition is as under:
5. PW1 Bal Kishan deposed that on 11.06.2005 at around 8.30 a.m, when he was coming back from the jungle, accused Sunil and Gulla caught hold of him, and said that if he raise alarm, they will beat him and kill him, thereafter, they removed his clothes. First Gulla caught hold of him and Sunil committed carnal intercourse with him and vice versa. On hearing voice of some person, both the accused ran away from the spot. After two days, he disclosed this fact to his father, then his father took him to the police station where his statement was recorded. Police prepared site plan at his instance and conducted his medical examination. Police also seized his pant which he was wearing at the time of incident, however he had washed his clothes and taken the bath. In crossexamination stated that he is 18 years of age and studied upto sixth class. He do not know the name of girl Rani, daughter of Gulla, however they belong to same community. He further stated that he had gone to the police station on 11.06.2005 at around 7.00 p.m and stayed in the police station for entire night, and came back from medical examination at around 2.30 p.m. He denied suggestion that he used to tease Rani. PW2 Asha Ram stated that on 11.06.2005 at around 7.30 p.m, his son while crying told him that today at around 8.30 a.m, when he was coming back from jungle, accused threatened him and beaten him, CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 3 of 10 and after removing his clothes, committed wrong acts with him, thereafter, he went to the police station alongwith his son, then IO prepared the site plan and recorded his statement. In crossexamination stated that at around 7.30 p.m, around 20 persons went to the police station and came back at around 11.30 p.m. He further stated that on the next day, the medical examination of his son was conducted. PW3 Dr Arvind Kumar conducted the medical examination of the complainant Bal Kishan. PW4 HC Ravi Kumar took the rukka to P.S Mehrauli where FIR was registered and accompanied the IO for medical examination of complainant. PW5 ASI Dharamveer Singh also associated with the IO during investigation. PW6 HC Ratna Prabha Duty Officer who registered the FIR. PW7 Dr. Sanjeev Lalwani conducted the medical examination of both the accused. PW8 SI Praveen Singh is the IO.
6. Both the accused in their statement u/s 311 Cr.P.C denied all the incriminating circumstances put to them. Accused Gulab @ Gulla stated that complainant Bal Kishan and his father were working with him as labourer and taken a loan of Rs.23,000/ from him, however they have not returned it, therefore the quarrel had taken place and due to this they are falsely implicated. Accused Gulla examined Dharampal as DW1.
7. Ld. counsel for the appellants/accused submitted that the testimony of PW1 and PW2 are contradictory. There is delay in reporting the matter to the police. The statement of PW1 is not at all supported through the medical examination report. Ld. Counsel submitted that there is previous enmity due to which the appellants were implicated in the present case. Prosecution is not able to prove its case beyond reasonable doubt.
8. Ld. Addl. PP, on the other hand contended that PW1 made a CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 4 of 10 categorical statement regarding the involvement of both the accused in committing the act of sodomy. There is nothing material in his cross examination to create doubt on his testimony. Ld. Addl. PP submitted that medical examination was conducted after two days and there is all likelihood that the injuries were healed, and also no possibility of trace of semens etc in the affected portions or over the clothes which were already washed. Ld. Addl. PP submitted that Ld. Trial Court passed detailed and reasoned judgment and there is no merit in the present appeal.
9. Arguments heard. Record perused.
10. The entire prosecution case hinges upon the testimony of PW1 Bal Kishan and his father PW2 Asha Ram. PW1 Bal Kishan is aged around 17 years at the time of incident i.e. 11.06.2005. This witness testified that when he was coming from jungle, he was caught hold by accused Sunil and Gulla and thereafter beaten by them with fists and slaps, thereafter they forcibly removed his clothes and both the accused one by one committed carnal intercourse with him. This witness stated that due to fear and shame, he has not disclosed this fact to anybody, however disclosed the same to his father after two days, then, his father took him to the police station, pursuant to which police recorded his statement Ex. PW 1/A. The police recorded the statement Ex. PW1/A of PW1 on 13.06.2005 at around 10.15 a.m, and incident was alleged to have occurred on 11.06.2005 at around 8.30 a.m.
11. This witness categorically stated in his testimony that he has told this fact to his father after two days. However, PW2 Asha Ram in his testimony stated that on the same day i.e. on 11.06.2005 at around 7..30 p.m, he took his son to the police station and then IO prepared the site plan and recorded his statement, in crossexamination also stated that he went to CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 5 of 10 the police station alongwith 20 persons and remained there till 11.30 p.m. There is inherent inconsistency in the testimony of both PW1 and PW2 regarding the intimation of the incident to the police. PW1 categorically stated that it was reported after two days whereas PW2 stated that it was reported on the same day.
12. Now the next circumstance to be appreciated is the MLC of PW1 Bal Kishan (Ex. PW 3/A) which shows the history of sodomy on 11.06.2005 morning, time of examination is 13.06.2005 at about 2.27 p.m. PW3 Dr. Arvind Kumar who prepared this MLC stated that on examination he found abrasion of size .2 CX .3 cm partially healed scab tightly adherent brown colour, present over nose (pyramid) about 3.5 cms above the nasal tip. No other external injury all over the body was found. As per MLC, no tenderness in the anal area was found, and no external injury/stain/discharge in anal canal and anal vurge area was found. No external injury/tenderness in perianal region was found, no external injury in the buttock area. However, it is also opined that anal swab is not required since the incident is of 11.06.2005 and victim has passed the stool and washed the area, but the pant was seized and handed over to the IO.
13. It is pertinent to notice that there is nothing in the statement of PW3 Dr. Arvind Kumar that on medical examination, there was even a hint of any sodomy. Prosecution is obliged to prove through the concerned doctor, whether on medical examination, it can be inferred that whether any sodomy was committed. It is also the duty of the prosecution to prove that in the manner the said act is alleged to have been committed could have been committed without any injury. It is also incumbent upon the prosecution to show that the said act could be done in the manner as alleged without any injury. Admittedly, as per MLC, there is no injury or CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 6 of 10 tenderness found in the anal or associated area. Medical evidence do not at all corroborate the statement of PW1. Now it is pertinent to refer the judgment titled State v. Mullah Muzib 2015 Crl. LP No. 62 of 2015 dated 09.02.2015 (2015 SCC OnLine Del 7228) in which Delhi High Court observed as under:
12. In Mirror v. Emperor, reported at AIR 1947 All 97, it was held that in a case of completed offence under section 377 IPC medical evidence could and should be definite against the accused.
13. In Channabasappa s/o Shanmukhappa v. State of Honnali Police, reported at 2010(2)KCCR 1385, it was opined that since there was no penetration and medical evidence didn't support the prosecution version, conviction was set aside.
14. In Kailash Laxman v. State of Maharashtra, reported at 2010CriLJ3255, it was observed that as no injuries were found in the medical evidence; prosecution failed to prove its case beyond reasonable doubt.
15. In Phool Singh v. State, reported at 2011(3)JCC2235, it was held that the prosecution case did not corroborate with the medical evidence. Hence the conviction of the accused was set aside.
16. In the present case, PW8 SI Suresh Pal, the Investigating Officer admitted in his testimony that he had not seized the undergarments of the victim and in order to justify his version he deposed that PW1 told him that he had washed his clothes on October 28, 2013 which is contrary to the version of the victim.
If there was any stains marks as deposed by PW2, it was the duty of PW8 to seize the same and send the same to FSL. Had the semen of accused be found at the underwear of the victim, it would have amount to a cogent piece of evidence in support of the victim.
17. In Devi Das (1928) 10 Lah 794, it was opined that in a charge of sodomy stains of semen constitute important evidence. Great weight must be attached to the Chemical Examiner's report.
18. In Crl. A. 52/03 and 628/2003 titled Rai Singh Vs. State, Hon'ble Division Bench of this court comprising HMJ CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 7 of 10 B.N.Chaturvedi and HMJ Rajiv Shakdher has held that since scientific evidence on which reliance was placed by prosecution does not erringly conclude that sodomy has been committed hence benefit of doubt should be given. 19. Thus we are of the opinion that the prosecution has failed to produce any significant medical and scientific evidence and therefore any averse inference to prove the allegations of carnal intercourse cannot be conclusively drawn against the accused.
14. As per the mandate of this judgment, if the prosecution failed to produce any significant scientific and medical evidence, then, any averse inference to prove the allegations of carnal intercourse cannot be conclusively drawn against the accused persons. There is inherent contradiction in the testimony of PW1 and PW2 regarding the factum of intimation of the incident to the police. It is also pertinent to notice that PW1 besides the act of sodomy also complained about beatings with fists and slaps. As per the MLC, the injuries were found in the upper portion of his nose which were found to be partially healed, therefore, it can be inferred that these injuries were inflicted on the day of incident.
15. Now, it is pertinent to look at the testimony of PW1 from another perspective. This witness stated that he has not disclosed about the said act for two days because of fear and shame, however the injuries were also found over his face. There is no explanation what explanation he has given about these injuries on the same day. Thus, it appears somewhat improbable that he will not disclose the said facts immediately to his family members or other persons.
16. As per MLC, the doctor has handed over the pant to the police, however the said pant is not sent for any FSL examination to trace any stains of semens. Though PW1 stated that he took bath and washed his clothes but there is nothing recorded regarding this fact during CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 8 of 10 investigation. The testimony of PW1 is also not corroborated through the medical evidence as well as through the clothes.
17. Delhi High Court in the above judgment in Para no. 2428 also observed as under:
24. In Emperor v. Sain Dass, as reported at AIR 1926 Lah 322, it was opined that a charge of attempting to commit sodomy is very easy to bring and very difficult to refute, the evidence in support of this charge has to be very convincing in order to convict the accused.
25. In Bal Mukundo Singh (1935) 39 CWN 1051, it was observed that it is unsafe to convict on the uncorroborated testimony of the person on whom the offence is said to have been committed, unless for any reason that testimony is entitled to special weight.
26. In the case of Swaran Singh Ratan Singh Vs. State of Punjab AIR 1957 S.C. 637, it was held that in criminal cases mere suspicion, however, strong, cannot take place of proof.
27. In Dilip Maheshwari v. State of M.P., as reported in 1995 Cr LR 80 (MP) it was held that where there was prosecution for sodomy and there exist delay in filing the FIR and where delay was not explained, evidence was not reliable and there was also noncorroboration of medical evidence, the accused was held entitled to benefit of doubt.
28. In Sekaran S/o. Munusamy Vs. State of Inspector of Police, as reported in 2010 CriLJ 2341 it was held that conviction under section 377 of IPC on the basis of uncorroborated testimonies can lead to miscarriage of justice.
18. It is a settled law that prosecution has to prove its case beyond reasonable doubt. The testimony of PW1 and PW2 found contradictory over the manner and date of reporting of the incident to the police. The testimony of PW1 is also not supported through the medical evidence. As held in the above judgment, the conviction u/s 377 IPC on the basis of uncorroborated testimony can lead to miscarriage of justice.
19. Accordingly, on reappreciation of evidence, in my view prosecution CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 9 of 10 has not proved its case beyond reasonable doubt, hence, impugned judgment of conviction as well as order on sentence is set aside. Both appellants/accused persons, namely, Gulab @ Gulla and Sunil stands acquitted. They are directed to furnish bail bond in the sum of Rs.25,000/ each with one surety each in the like amount in terms of Section 437A CrPC.
20. TCR be sent back with the copy of this order.
21. Duly signed judgment in duplicate be kept in both files.
22. After compliance, file be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN)
On 29th May, 2019. ASJ02 (South)
Saket / New Delhi
Digitally
signed by
AJAY AJAY KUMAR
JAIN
KUMAR Date:
JAIN 2019.05.30
16:14:18
+0000
CA No. 8301/16 and 8302/16 , Gulab Vs. State, Sunil v. State 29.05.2019 Page no. 10 of 10