Delhi District Court
State vs . Naveen on 5 June, 2012
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
State Vs. Naveen
FIR No. 81/2008
P.S. Kanjhawala
Unique ID No. 02404RO1192222008
Date of institution of case: 22.8.2008
Date of reserving the judgment: 02.6.2012
Date of pronouncement of judgment: 05.6.2012
J U D G M E N T
1. S. No. of the Case : 553/2/08
2. Date of Commission of Offence : 20.5.2008
3. Date of institution of the case : 22.8.2008
4. Name of the complainant : Pardeep
5. Name of the accused, parentage & address: Naveen S/o Karan Singh,
R/o V & PO Karala, Delhi
6. Offence complained or proved : 377 IPC
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9.Date of Final Order : 05.6.2012
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of prosecution as unfolded by report U/s 173 Cr.PC is that on 23.5.2008 one DD No. 21A was recorded in PS Kanjhawala and the said FIR No. 81 of 2008 PS Kanjhawala 1 DD was marked to ASI Satyavir Singh and ASI Satyavir alongwith Ct. Kanwar Singh reached near old chopal, Satghara Pana, Karala where PCR officials were found present and they produced victim Goldy and accused Naveen to them. Complainant Pradeep made a statement against accused Naveen and Sonu ( Sonu not arrested in this case) with regard to unnatural intercourse with Goldy by accused Naveen and Sonu. After that accused Naveen and victim Goldy were got medically examined at SGM Hospital and after collecting the MLCs, accused Naveen was arrested and upon completion of investigation challan was prepared and filed in court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 377 IPC was framed against the accused on 06.12.2008 to which both accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined following witnesses:
5. PW 1 Ct. Kanwar Singh deposed that on the fateful day on receipt of a DD through Ct. Rakesh, he alongwith ASI Satyavir reached at village Karala near Satyagarh Pana where a mentally weak boy was produced by his family members alongwith the accused namely Navin and IO recorded statement of the FIR No. 81 of 2008 PS Kanjhawala 2 relative of the victim of sexual assault. IO got conducted the medical examination of the said victim. IO wrote tehrir and sent him to PS for registration of the FIR and he got the case registered and came back at the spot with the copy of FIR and original rukka. He further deposed that IO effected the arrest of the accused vide memo Ex.PW 1/A and personal search of accused was conducted vide memo Ex. PW 1/B. IO also recorded disclosure statement of accused Ex. PW 1/C. He further deposed that IO prepared seizure memo of slide and sample seal and blood sample vide Ex. PW 1/D and1/E at SGM Hospital.
6. PW 2 Pradeep is the complainant in the present case. He deposed that his cousin Goldie is mentally weak and resides with them in a separate portion in the same house, who cannot speak and they can understand him by his signals. In the month of May, 2008 Goldie was feeling some problems and his health was going down and there was bleeding on his back side and they took him to Brahm Shakti Hospital where doctor told that Goldie had injuries on his latrine way. He further deposed that on 23.5.2008 Goldie told by signals that someone had done carnal intercourse 'galat kaam' with him and on his instance they reached at the house of Naveen S/o Karan Singh and also took him to the room of house of Naveen where the accused had committed carnal intercourse with him. Thereafter he informed to police control room and police officials from PS Kanjhawala came and recorded his statement Ex. PW 2/A.
7. PW 3 HC Vijender was posted as duty officer in PS Kanjhawala and FIR No. 81 of 2008 PS Kanjhawala 3 registered the FIR Ex. PW 3/A in the present case. He proved the FIR as Ex. PW 3/A and proved endorsement thereupon as Ex. PW 3/B.
8. PW 4 HC Naresh Kumar was posted as MHC(M) in PS Kanjhawala with whom IO ASI Satyavir Singh deposited one sealed pullanda alongwith sample seal of Sanjay Gandhi Memorial Hospital. He proved the relevant entry in register No. 19 as Ex. PW 4/A. He further deposed that on 25.9.08 exhibits were sent to FSL Rohini through Ct. Ved Parkash. He further deposed that on 27.11.2008 two pullandas sealed with the seal of FSL Rohini alongwith FSL result were received through HC Surender and result was handed over to ASI Satbir Singh.
9. PW 5 Rakesh Kumar, record clerk SGM Hospital proved the MLC No. 5890 as Ex. PW 1/A.
10. PW 6 W/HC Sarla was posted as DD writer and proved the attested copy of DD No. 21 as Ex. PW 6/A.
11. PW 7 Samir Pandit proved MLC No. 5890 of victim Goldy, Ex. PW 5/A.
12. PW 8 ASI Satyavir Singh is the investigating officer of the case. He deposed that on 23.5.08 on receipt of DD No. 21A he alongwith Ct. Kanwar Singh reached near purani chopal, Satghara Pana, Karala where PCR officials were found present and they produced victim Goldy and accused Navin. He also met Pradeep who was the cousin of Goldy who gave a complaint against accused FIR No. 81 of 2008 PS Kanjhawala 4 Navin with regard to unnatural intercourse with Goldy by accused Navin. He recorded his statement which is already Ex. PW 2/A. After that he took Goldy and accused Navin to SGM Hospital for medical examination where examination of both of them was conducted. He further deposed that after collecting the MLCs, he seized the slide sample of Goldy and blood sample of accused Navin vide memo already Ex. PW 1/D and 1/E. Thereafter he prepared the rukka Ex. PW 8/A and got the FIR registered through Ct. Kanwar Singh. After that he prepared the site plan upon the instance of complainant Pradeep, which is Ex. PW 8/B. After the inquiry accused Navin was arrested vide memo already Ex. PW 1/A and his personal search was conducted vide memo Ex. PW 1/B. Later on FSL result was collected.
13. Thereafter accused examined U/s 313 Cr.PC on 21.5.2012. Accused claimed innocence and false implication. He wished not to lead defence evidence.
14. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
15. In the present case, it is the case of the prosecution that the accused Naveen and Sonu (Sonu not arrested in the present case) in furtherance of common intention committed carnal intercourse with the victim Goldy.
16. The section 377 IPC reads as follows:
"377. Unnatural Offences.
Whoever voluntarily has carnal intercourse against the order of nature FIR No. 81 of 2008 PS Kanjhawala 5 with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
17. To substantiate its case, the prosecution was required to prove that both the accused persons in furtherance of their common intention committed carnal intercourse with the victim Goldy beyond reasonable doubts. The section 377 IPC was declared unconstitutional insofar it criminalises consensual sexual acts of adults in private vide the judgment Naz Foundation vs Government Of NCT of Delhi, decided on 2 July, 2009 by the Hon'ble High Court of Delhi in WP(C) No.7455/2001. The relevant para is reproduced below:
"132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern nonconsensual penile nonvaginal sex and penile nonvaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms."
18. Thus, the legal position that stands today is that the unnatural sex between adults should be nonconsensual to attract the culpability under section 377 IPC. It is the case of the prosecution that the victim Goldy is mentally weak, FIR No. 81 of 2008 PS Kanjhawala 6 unable to speak and communicates by signs and gestures. The victim Goldy is cited as a witness by the prosecution but no statement has been recorded. After several and continuous efforts, the victim was brought before the court on 11.05.2012 by his brother in law. It was submitted that victim Goldy is mentally retarded and is unable to depose. This court examined the victim in open court. On being asked whether he knows the accused Naveen, he replied in whisper that the accused is his brother. Thus, this court came to the finding that the witness victim Goldy is not a competent witness and was accordingly dropped as a witness.
19. In these circumstances, the only sole witness who could prove the complicity of the accused is the complainant Pradeep, who is the cousin of victim Goldy. The present FIR was registered on the statement Ex PW2/A of the complainant wherein he stated to police that his cousin Goldy was not feeling well since last 23 days and was bleeding from anal side. He further stated that he took Goldy to the hospital where doctor told that there is an internal wound. After coming back, Goldy told by signs and by putting his hand on his back that someone has done "wrong thing" (galat kaam) to him. Goldy took him to the house of Naveen and put his hand on the bed of one room and by signs told that the "wrong thing" has been done there. In the meanwhile Naveen came there and Goldy caught hold of Naveen's hand and went to the bed and told that Naveen has done wrong thing to him. Complainant further deposed that Naveen told by FIR No. 81 of 2008 PS Kanjhawala 7 signs that the wrong has been committed by two persons.
20. Conspicuously, the complainant is not the eye witness of the incident. The testimony of complainant clearly reveals hearsay evidence which is inadmissible in law. In is an elementary law that to prove a fact or allegation, the oral evidence must be direct. It means that the fact can be proved by the person who has either seen, heard, observed or felt a particular thing. The fact cannot be proved by a third party. The section 60 Evidence Act reads as under:
"60. Oral evidence must be direct Oral evidence must, in all cases, whatever, be direct; that is to say;
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."FIR No. 81 of 2008 PS Kanjhawala 8
21. Thus, the commission of the offence could have been proved by the eye witness who is solely the victim Goldy. However, Goldy is rendered as incompetent witness and was dropped from the list of witness. In these peculiar circumstances, the present case rests completely upon the circumstantial evidence. It is well settled law that to base conviction of the accused on the basis of circumstantial evidence, there must be a complete chain of events leading to only one conclusion that the offence is committed by the accused alone and no one else.
22. The victim was medically examined on 23.05.2008 vide MLC Ex PW5/A. It was observed that there is no external injury but redness and tenderness posteriorly at anal splinter. The anal swabs were taken. The accused was also medically examined and his blood sample was also sealed. The anal swabs of victim and blood sample of accused was sent to FSL for analysis. The FSL report opined no semen on the anal swab of victim and thus was of no benefit to the prosecution. Further, during cross examination of complainant PW2, complainant deposed that his cousin is suffering from the disease of piles. Thus, there is also no circumstantial evidence brought on record to make a complete chain of events showing the commission of offence by the accused.
23. At this juncture, it is very pertinent to quote the relevant paras of judgment Uttam S/O Bapurao Gaikwad vs The State Of Maharashtra, decided on 9 February, 2012 by the Hon'ble High court of Bombay in CRIMINAL FIR No. 81 of 2008 PS Kanjhawala 9 APPEAL NO. 401 OF 2011 which is factually similar to instant case:
"21. The evidence has been discussed above in some details, so as to make it clear that there is no direct evidence with respect to the alleged incident. It is clear that none of the witness have any personal knowledge of the alleged incident. Their knowledge of the incident, is only on the basis of what the victim had allegedly told them. It is elementary that the evidence of these witnesses as regards incident would be merely hearsay. Section 60 of the Evidence Act, mandates that oral evidence must be direct and the evidence of none of the witnesses, in this case is 'direct' as regards the incident of rape. The victim, who had experienced the incident, has not been examined as a witness, and none of the other witnesses have witnessed the incident or any part thereof. The position that the evidence of Laxmibai (P.W.2) and Parwatibai (P.W.3) or of Madan(P.W.4) cannot be treated as direct evidence to prove that the incident of rape had indeed taken place, being elementary, need not to be discussed any further, and the learned Sessions Judge has also accepted this position. However, the learned Sessions Judge was of the opinion that there was circumstantial evidence to prove the commission of the offence by the appellant. ...
40. In any case, the medical opinion, even if assumed as correct just for the sake of argument, would not show that it was the appellant, who had committed sexual intercourse with the victim.
41. Thus, there was no direct evidence to show the commission of the alleged offence by the appellant. The 'hearsay,'which was not admissible as evidence, was tacitly used by taking it into consideration as 'circumstantial evidence', in an apparent anxiety, to see that some material is found against the appellant. The socalled 'circumstances' were neither properly established, nor did they point out firstly, that any offence had, infact, been committed, and secondly, that such an offence had been committed by none else, but the appellant only.
45. It is, therefore, clear that whole case was based on what Laxmibai (P.W.2) conveyed to the Investigating Agency and what she claimed to FIR No. 81 of 2008 PS Kanjhawala 10 have understood from the victim. Laxmibai (P.W.2)'s satisfaction about the truth of what the victim (allegedly) stated, could not be substituted for satisfaction of the Court. Thus, once the victim's evidence was not available, there was no other evidence, which would show the commission of alleged offence by the appellant. It is clear that it is on the basis of inference drawn by the witnesses, from what was reportedly, learnt from the victim, accusation was preferred against the appellant. There was no way of judging whether the inference drawn by the witnesses was proper. There was delay in reporting the matter. There was no evidence as to the time, when the alleged incident had taken place, and the evidence as to when the victim first stated about any such incident, was also conflicting. There was no medical evidence to support the theory of rape. It was, therefore, totally unsafe to hold the appellant guilty of the alleged offence."
24. It is basic canon of criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. The burden of proof never shifts. It is well settled legal proposition that the benefit of doubt goes in favour of the accused. The accused cannot be convicted on the basis of suspicion or probabilities howsoever grave they are.
25. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused and he is entitled to be exonerated of the charges against him in the present case. The accused Naveen is hereby acquitted for the offence U/s 377 IPC. Bail bonds are cancelled. Sureties are discharged. FIR No. 81 of 2008 PS Kanjhawala 11 Documents, if any be returned after cancellation of endorsement on the same.
26. File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi )
5th day of June, 2012 Metropolitan Magistrate,
Rohini Courts: Delhi
cr
FIR No. 81 of 2008 PS Kanjhawala 12