State Vs. Gaurav Jain

Court: Delhi High Court

Bench: JUSTICE VINOD YADAV

State Vs. Gaurav Jain On 18 February 2015

Law Point:

False implication of the accused. prosecution has failed to prove the charges framed against the accused in the matter beyond reasonable doubt. The accused Gaurav Jain accordingly stands acquitted in the matter.

JUDGEMENT

BRIEF FACTS OF THE CASE:

The prosecution case in brief, as borne out from the record is that on 05.06.2013, at about 1.33 PM, a 100 number call was received by PCR with regard to one Barfwala having done “Galat Kaam” with a six years old child. The said information was transmitted to PS Keshavpuram in PP Shanti Nagar at about 1.45 PM. The same was recorded as DD No.17PP, a copy U/s 11 (i) & 12 POCSO Act: “Acquitted” Page 1 of 21 SC No.115/2013: FIR No.163/2013: PS Keshav Puram: State V/s Gaurav Jain whereof was handed over by the DD Writer to SI Kuldeep,who alongwith HC Prem Ram reached at the spot, i.e House No.2021/159, Ganesh Pura, Tri Nagar, Delhi­35. There, SI Kuldeep Singh made preliminary enquiries and found a girl child having been molested. He called Inspector Kamlesh at the spot, who reached there and recorded the statement of mausi (mother’s sister) of child victim P to the effect that at about 12.30 PM the child victim P was returning from the shop of her maternal grandfather. When she reached at her house, the accused came there riding on a bicycle. He opened the zip of his pant, took out his penis and asked child victim P to touch the same. The child victim P refused to do so and rushed towards the upper floor of the house and informed the facts to her mausi. Her mausi, Ms.Sweety Diwani immediately came downstairs and she saw the accused running away on his bicycle. She identified the accused to be a “Barfwala”, having his shop at Vardhman Vatika, near Talab Road, by the name of “Jain Barf”. After recording of the aforesaid statement, SI Kuldeep Singh prepared rukka and sent the same to PS for registration of FIR through Ct.Prem Ram, who came back at the spot after registration of FIR and thereafter, SI Kuldeep Singh conducted further investigation in the matter. He prepared site plan at the instance of child victim P. On the next day, accused Gaurav Jain was arrested from his residence. Thereafter, on 20.06.2013, IO got the statement of child victim P recorded U/s 164 Cr.P.C. After completion of investigation, chargesheet in the matter was filed.

COURT PROCEEDINGS:

2. After filing of the chargesheet in the matter, copy thereof alongwith documents was supplied to the accused and after hearing arguments on the point of charge, vide order dated 02.08.2013, charges U/s 11

(i) of POCSO Act, 2012 punishable U/s 12 of POCSO Act, 2012 (hereinafter referred to as the “POCSO Act”) were framed against the accused, to which he pleaded not guilty and claimed trial.

3. In order to prove the charges against the accused, prosecution examined as many as 10 witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C was recorded, wherein he claimed himself to be innocent and having been falsely implicated in the matter. He examined one independent witness namely Shri Ashok Kumar in his defence as DW­1.

4. I have heard arguments advanced at bar by the Ld.Addl. PP for the State and Shri Surender Kumar, advocate, learned counsel for the accused and perused the entire material on record. Before adverting to the arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.

EVIDENCE RECORDED IN THE MATTER:

5. The evidence recorded in the matter can be broadly classified into the following categories:

(a) Evidence of child victim P and her family members;

(b) Formal evidence;

(c) Evidence of investigation and;

(d) Defence evidence.

6. Evidence of child victim P and her family members:

The first witness in this category is PW­2, Shri Yogesh Kumar, the father of child victim P. He has stated in his evidence that on coming to know of “ched­chad” with his daughter through phone call received by him from his sister­in­law (saali Ms.Sweety Diwani), he reached at the house of his in­laws, where in his presence statement of his saali Ms.Sweety Diwani and his daughter child victim P was recorded. In his cross­examination, he has stated that when he reached at his in­laws’ house, he found his wife, his saali Ms.Sweety Diwani and brother­in­law Shri Kapil and the matter by then had already been reported to the police on number 100. Thereafter, PCR van reached at the house of his inlaws. At that very time itself, he, child victim P, his wife, his saali Ms.Sweety Diwani and brother­in­law Shri Kapil were taken to PS Keshavpuram in PCR van itself, where a query was raised to him by a male officer as to whether he wanted registration of case or not, to which he answered in affirmative. Thereafter, in his presence, the statement of his daughter/child victim P and her mausi Ms.Sweety Diwani were recorded by a lady officer. Thereafter, all the aforesaid persons returned back to his inlaws’ house.

Therefore, from the evidence of this witness it is apparet that the police had conducted the initial investigation not at the residence of his inlaws, i.e the spot of incident, but the same was conducted at the PS.

7. The second witness in this category is child victim P herself, who as PW­5 in her evidence has deposed as under:

xxxxx Q. Kya hua tha ?

Ans. Nanu ke ghar gaye the.

Q. Nanu ka ghar kaha hai ?

Ans. Paas me hai. Ghar se bahar nikal kar, road cross karke samne nanu ki shop hai. Q. Phir kya hua ?

Ans. Jab me aa rahi thi, toh ek ladke ke jaha se toilet karte hai, ek chij lagi thi, bola ki nikal le.

Q. Phir kya hua ?

Ans. Woh phone par baat kar raha tha, usne kaha

ki ghar par jakar kisi ko nahi batana.

Q. Kisko kaha ki ghar par jakar nahi batana ?

Ans. Mujhe.

Q. Phir kya hua ?

Ans. Phir upar gayi thi.

Q. Upar kaha ?

Ans. Ghar aa gayi thi.

Q. Phir kya hua ?

Ans. Masi aur mummy ko bata diya.

Q. Phir kya hua ?

Ans. Masi ne pakda uss ladke ko.

Q. Kya aap uss ladke ko pehchan sakte ho ?

Ans. Nahi, bhul gayi.

Q. Woh kaun tha ?

Ans. Woh baraffwala tha.

Q. Aap ko uska naam pata hai ?

Ans. Nahi pata.

Q. Aur kuch batana chahte ho ?

Ans. Nahi.

xxxxx

In her cross­examination, she made admission of some facts, therefore, her cross­examination also needs to be noted.

xxxxx XXXX By Sh. Ravinder Tyagi, Learned counsel for accused.

Q. Apko kisne bataya ki woh ladka Barfwala

hai, kya mausi ne bataya tha ?

Ans. ha.

Q. Jab mausi niche aayi tab woh ladka nahi

mila tha, yeh baat thik hai ?

Ans. Nahi woh ladka mila tha.

Q. Aap mausi ke sath kahi gayi thi ?

Ans. Nahi.

Court Ques.: Jab mausi ne ladke ko pakada tab

aap sath gayi thi ?

Ans. Nahi.

Q. Kya aap kabhi mausi ke sath sabzi lene gayi

ho ?

Ans. Nahi.

Q. Mausi ne aapko barafwale ki dukan dikhai

thi ?

Ans. Nahi.

Q. Aaj apko mausi ne bataya hai ki aaj kya batana hai ?

Ans. Ha.

Court Ques.: Jo apne bataya ki ek ladke ke jaha se toilet karte hai, ek chij lagi thi, bola ki nikal le, yeh baat aapko mausi ne batayi thi yah aapke sath hua tha ?

Ans. Mere sath hua tha.

Q. Woh ladka paidal tha ?

Ans. Nahi woh cycle par betha tha.

Q. Kya mausi ke sath mummy bhi niche aayi

thi?

Ans. Ha.

Q. Jab mausi ne ladke ko pakad liya tha phir

kya hua tha ?

Ans. Police ko de diya tha.

Q. Kya wahi police bula li thi ?

Ans. Ha.

Q. Aap akeli sirf nanu ki dukaan par jati thi

yah kahi aur bhi jati thi ?

Ans. Sirf nanu ki dukaan par jati thi.

Q. Cycle par kuch samaan to nahi tha ?

Ans. Nahi.

xxxxx

From the evidence of child victim P, reproduced herein above, it is apparent that she has deposed in the matter at the instance of her mausi.

Her statement recorded U/s 164 Cr.P.C was not put to her by the prosecution and she has not identified the accused to be the person who had committed sexual assault upon her.

8. The next witness in this category is PW­7, Ms.Sweety Diwani, the mausi of child victim P. She has stated in her evidence that child victim P, being daughter of her sister had come to reside with her in her summer vacations and on 05.06.2013, at about 12.30/1.00 PM, she returned back from her father’s shop, which was just 2­3 houses away from her house and at that time, she made complaint about the accused Gaurav Jain having opened the zip of his pant, taking out his penis and asking her to touch the same. After hearing this from child victim P, she immediately rushed downstairs and saw the accused standing on his bicycle in the gali. Threafter, she called out, “tu hi h jo bachi ke sath batmiji kar raha tha. Tahar mein tujhe abhi batati hu”. She immediately called her sister from the third floor, handed over child victim P to her and chased the accused. She has claimed that she did not know the accused prior to the incident and could identify him to be seller of “ice” from a bori on the back carrier of the bicycle and a “sua” lying placed in the front part of the same. She has further stated that in the locality, only one ice seller was there, therefore, she rushed to his shop and made enquiries, but could not find the accused there. Thereafter, she made a call at number 100, PCR van came at the spot and they called other police officials, who came at the spot and made enquiries from her and recorded her statement Ex.PW7/A, on the basis of which rukka was prepared by IO/SI Kuldeep Singh. Threafter, she has gone on to say that on the next date, i.e 06.06.2013, she alongwith her other family members were called to PS, where accused was shown to her and she identified him. In her cross­examination, she has stated that the police had met her at the shop of accused, where her brother and brother­in­law (PW­2) were also present. From there, she and her brother went to PS where her complaint Ex.PW7/A was recorded by a lady police officer in her own hand. She claimed the said lady to be in civil clothes and at that time, a male officer by the name of SI Kuldeep Singh was also there. In her further cross­examination, she expressed her doubt as to whether her statement was recorded by the male officer or female officer. She was confronted with her statement Ex.PW7/A, where she had not stated some of the facts which she has stated in her evidence in court. She further stated that while chasing the accused from her residence, she had gone on her scooty. She has specifically stated that the police had made enquiries from child victim P in the PS. She denied the suggestion of defence that she had friendship with accused in the past, but on account of something their relations became strained and she had threatened him of false implication. She also admitted that the gali in front of her house where the incident is alleged to have taken place is open from both ends and there remains inflow of passers­by therefrom.

Therefore, this witness has also claimed on the lines of PW­2 that the initial investigation in the matter was conducted by the police in the PS, including investigation with regard to child victim P.

Formal witnesses:

9. In this category, firstly comes the evidence of PW­1. PW­1 HC Mohan Singh in his evidence has stated that he was working as Duty Officer in PS Keshavpuram on the date and time of incident and he had registered case FIR Ex.PW1/B in the matter on the basis of rukka sent by SI Kuldeep Singh through HC Prem Ram. He denied the suggestion of recording case FIR in the matter at the instance of SI Kuldeep Singh.

10. PW­3, WHC Rajesh in her evidence has stated that she was lying posted at the relevant time in PS Keshavpuram as DD Writer and after receiving information from PCR, she had recorded DD No.17PP (Ex.PW3/A) and entrusted a copy thereof to HC Prem Ram and SI Kuldeep Singh for appropriate action thereupon.

11. PW­6, Ms.Meenu Kaushik, Ld.Metropolitan Magistrate has proved the statement U/s 164 Cr.P.C of child victim P, recorded by her. It is worth noticing that the police had got recorded the statement of child victim P after a gap of almost 15 days from the date of incident.

12. PW­8, ASI Purshottam Dass in his evidence has stated that at the relevant date and time, he was on duty at PCR van and he had received 100 number call made by PW­7 at about 1.33 PM and had informed the local police about the same.

Evidence of Investigation:

13. In this category, firstly comes the evidence of PW­4, W/Inspector Kamlesh. PW­4, W/Inspector Kamlesh in her evidence has stated that on 05.06.2013 in the evening, she had received a call from SI Kuldeep Singh, whereafter she had reached at Vardhman Vatika, Talab Road and found SI Kuldeep Singh, HC Prem Ram, PW­7 Ms.Sweety Diwani and PW­5 child victim P. There, she recorded the statement of PW­7 about accused having done sexual harassment (ashlil harkat) with child victim P. When she was shown the statement of PW­7, Ex.PW7/A, then she stated that it was not in her handwriting and it was in the handwriting of SI Kuldeep Singh. In her cross­ examination, she has disclosed a very important fact, i.e she had made enquiries from child victim P at the spot, but she could not tell her anything as she was very small (sic).

It is hereby noted that her testimony with regard to recording of statement of PW­7 and investigation qua child victim P took place at the spot, whereas PW­2 and PW­7 have deposed that the same was done at the PS. Her evidence further shows that she had not recorded the statement of PW­7 in her hand, as claimed by PW­7.

14. PW­9, HC Prem Ram in his evidence has stated that after receipt of DD No.17 (Ex.PW3/A), he had reached at the spot and made preliminary enquiries from PW­7 and in the meantime, SI Kuldeep Singh had also reached at the spot, i.e gali No.96 at Talab Road. After making preliminary enquiry by him, he called Inspector Kamlesh (PW­4). PW­4 Inspector Kamlesh thereafter recorded the statement of PW­7, whereupon SI Kuldeep Singh prepared rukka, handed over the same to him and he went to PS and got the FIR in the matter recorded. After registration of FIR, he came back at the spot and handed over copy of FIR and original rukka to SI Kuldeep Singh, who conducted further investigation in the matter. In his cross­examination, he has stated that statement of PW­7 was recorded by PW­4 at the spot, however, he very clearly tried to cover as to in whose handwriting Ex.PW7/A was prepared by stating that SI Kuldeep Singh had recorded the said staement on the dictation of PW­4. He further claimed that even his statement was recorded by SI Kuldeep Singh at the spot.

This witness also deposed with regard to the place of recording of statement of PW­7 to be at the spot, contrary to what has been deposed by PW­2 and PW­7.

15. PW­10, SI Kuldeep Singh in his evidence has deposed on the lines of deposition of PW­9, but has stated that the statement of PW­7, i.e Ex.PW7/A was recorded by PW­4 and the same bears her signatures at point X thereupon. He further stated that after recording of Ex.PW7/A, PW­4 handed over the same to him, whereupon he wrote rukka and got the case FIR in the matter registered through PW­9. He further stated that stated that he had made a call to the father of child victim P, i.e PW­2 Shri Yogesh Kumar to come to the spot. He further stated that on 06.06.2013, he had apprehended the accused from his house on the identification of PW­7 and he was brought to PP, where he was arrested. At the instance of accused, he recovered his cycle. He also got recorded statement U/s 164 Cr.P.C of child victim P on 20.06.2013. Thereafter, he prepared chargesheet and filed the same in court. In his cross­examination, he has stated that he came to know about the name of accused from PW­7 itself after reaching at the spot. He again reiterated that Ex.PW7/A was recorded by Inspector Kamlesh (PW­4) and not by him. When he was shown Ex.PW7/A again, he then turned turtle and admitted that the same was in fact recorded by him on the dictation of PW­4. He, however, stated that the statement of HC Prem Ram (PW­9) was recorded by him at the PP. He claimed himself to be in civil clothes at the time of recording of statement of child victim P. He further deposed that the statement of child victim P and her father were recorded by him at the house of PW­7. When he was asked questions about the residence of accused from where he was allegedly arrested by this witness, he could not answer a single question in this regard, thereby giving an indication that he himself had actually not gone to the house of accused to arrest him, what to talk of PW­7 being present there at that time, which has been shown in Arrest Memo of the accused Ex.PW7/B. He again contradicted himself by stating that the arrest documents of accused were prepared at his residence, whereas in his examination­in­ chief he had stated that the documents of arrest of accused were prepared in the PS. He categorically denied having recorded the statement of any other person at the spot. He specifically denied the suggestion that he had falsely implicated the accused in the matter at the instance of PW­7.

Defence Evidence:

16. In his statement recorded U/s 313 Cr.P.C, the accused has stated that he and PW­7 were friends, but on account of something their relations had got strained and she had threatened him of teaching lesson and that is why she had got him implicated in this case. In his defence, he has examined DW­1 Shri Ashok Kumar, who runs a fruit shop near his shop of selling ice. This witness has stated that PW­7 used to come to the shop of accused about 1½ months prior to the registration of present case. He had seen PW­7 at the shop of accused and they had a ferocious verbal exchange and at that time, PW­7 had threatened the accused of getting him arrested. This witness claimed the character of accused to be good and he being knowing him for the last many years. He has further deposed that on 06.06.2013, the father of accused had produced the accused in PS and he was not arrested from his residence, as claimed by the prosecution in the matter. In his cross­ examination, he has categorically admitted that the accused and PW­7 were in a love relationship.

17. This is all as far as evidence in the matter is concerned.

18. The Ld.Addl.PP has very vehemently argued that from the evidence of child victim P as well as PW­7, the prosecution has been able to bring home the guilt of accused. She has further argued that the testimony of child witness in the matter is in consonance with her statement recorded U/s 164 Cr.P.C, i.e Ex.PW6/B.

19. Per contra, the learned defence counsel has very vehemently argued that the evidence of PW­5 and PW­7 is wholly unreliable and the accused has been falsely implicated by PW­7 by using child victim P as a pawn to settle score with the accused.

The first and foremost question which arises in this matter is as to whether PW­5 and PW­7 are trustworthy witnesses or not and then as to whether explicit reliance can be placed upon the evidence of PW­5, who is a child of tender age. There are certain facts which have come on record in the evidence of aforesaid two witnesses, which make their evidence suspicious. In Ex.PW7/A, PW­7 has categorically named the accused with his parentage and address, whereas in her examination­in­chief she has projected as if she had seen the accused for the first time on the date of incident. A further impression is sought to be created that she identified the accused from the “bori” and “sua” present on his bicycle, from which she presumed that he was a person dealing in “ice” and there being only one ice vendor in the locality. She immediately concluded that it was the accused only. She has claimed that accused was shown to her for the first time after registration of case on 06.06.2013 in the PS by the police, where she identified him. Her this deposition goes against the facts written in the Arrest Memo Ex.PW7/B and Personal Serach Memo Ex.PW7/C, both of which show that the accused was arrested from his residence in presence of PW­7. PW­7 has further deposed that the enquiry with regard to the incident was made to her by the police at Police Station (PS). She has further deposed that even the enquiry from child victim P (PW­5) was also made by the police in the PS. The learned defence counsel termed this to be in violation of the provisions of Section 24 of the POCSO Act.

20. A careful analysis of the evidence recorded in the matter gives a clear indication that the investigation in the matter was not done in the manner it has been projected by PW­10, SI Kuldeep and PW­4, Inspector Kamlesh. It is further apparent that the entire paper work was done at the PS and not at the place where it is projected to have been taken place in the case. PW­2 Shri Yogesh and PW­7 Ms.Sweety Diwani have categorically deposed that the police had made enquiries from them in the PS and the complaint of PW­7, i,e Ex.PW7/A was recorded in the PS by PW­4 Inspector Kamlesh. When PW­4 was confronted with Ex.PW7/A, then she termed it to be written by PW­10 and not by her, but claimed the same to be on her dictation. The apparent collusion between PW­7, PW­10 and PW­4 cannot be ruled out in the matter. It is further apparent that it is PW­7, who has been playing dice in the matter, as she is the one to whom child victim P (PW­5) had told about the incident. Thereafter, she called the police and got the FIR recorded in the matter, the way she wanted in this matter. She mentioned in Ex.PW7/A that she knew the accused and as such, she could identify him through his name as well as parentage and place of business, meaning thereby that the accused was known to her, whereas in her evidence she projected as if she had seen the accused for the first time on the date of incident and she actually got to see him in the PS on 06.06.2013. She consequently identified him to be the person who had committed sexual assault upon child victim P. It appears that PW­7 herself had taken the child victim P to the PS, where the police officers conducted enquiry from her. Such an enquiry cannot be made by the police from a child victim in PS, as the same is in violation of the mandatory provisions of Section 24 of the POCSO Act, which are reproduced as under.

xxxxx

24. Recording of statement of a child­

(1) The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub­inspector.

(2) The police officer while recording the statement of the child shall not be in uniform.

(3) The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.

(4) No child shall be detained in the police station in the night for any reason.

(5) The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.

21. Although, PW­4, PW­9 and PW­10 have stated that the enquiry was conducted by them from PW­7 as well as PW­5 at their residence, but the said testimony of aforesaid police witnesses is not supported by the version of the story given by PW­2 and PW­7. There is another very important fact which goes against the prosecution in the matter, i.e the statement of child victim P U/s 164 Cr.P.C was got recorded by the police after 15 days of the incident, which goes against the very spirit of recording of such a statement. Such a statement is recorded to lend authenticity to the prosecution case and even otherwise, the purpose of same is to minimize the tutoring and concoction of facts on the part of a witness. Now, let us come to the testimony of PW­5, child victim P. Firstly, she has not identified the accused and secondly she has categorically admitted in her cross­examination that she had been told by PW­7 as to what is to be deposed by her in the court. This creates doubt upon the prosecution case and it rather makes the defence of accused more probable, which is to the effect that he had friendship with PW­7 and on account of some facts, their friendship fell apart and PW­7 had threatened him of implication in a case.

The Hon’ble Supreme Court has been pleased to issue caution mark with regard to the testimony of children of tender age in case reported as, “AIR 1983 SC 274”, titled as, “State of Assam V/s Mafizuddin Ahmed”. In para 14 and 15 of the aforesaid judgment, the Hon’ble Supreme Court has been pleased to lay down as under:

xxxxx “14. ………“……the evidence of a child witness is always dangerous unless it is available immediately after the occurence and before there were any possibility of coaching and tutoring.”

15. A bare perusal of the deposition of PW­7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness, who was only a lad of 7 years. But, from the tenor of his deposition, it is evident that he was not a free agent and has been tutored at all stages by someone or the other.”

xxxxx (emphasis supplied)

22. Here, in this case, if the testimony of PW­5 is read alongwith the circumstances of this case, then it becomes apparent in this matter that PW­7 had ample time to tutor PW­5 to depose in a particular manner in which she wanted her to depose.

23. There is another important fact which needs to be highlighted in this case. The gali where the offence is alleged to have been committed has been shown to be an open gali in site plan Ex.PW10/B and on both sides of the gali there are houses and people have been residing therein. It is quite unlikely for a person to commit sexual assault of the nature alleged against the accused in this matter in an open gali. This takes us to the last leg of the argument of learned defence counsel that DW­1 in his evidence has categorically deposed that his “rehri” is quite close to the shop of accused and he has been running that “rehri” since the year 1970 and is known to the family of accused. He has deposed about his knowledge of the visits of PW­7 to the shop of accused. He had even heard the sounds of quarrel between them few days prior to the recording of FIR in this matter, wherein PW­7 had threatened the accused of implication in a case. This witness has further deposed that the accused was not arrested in the manner it has been projected in his Arrest Memo Ex.PW7/B. The Arrest Memo even otherwise gets falsified by the evidence of PW­7. A perusal of this document shows that accused was arrested from his house bearing No.1405/96, Talab Road, Trinagar, Delhi at about 9.15 AM in the presence of PW­7, whereas PW­7 in her evidence had deposed that accused was arrested in the PS. There are apparent contradictions in the evidence of PW­9 and PW­10 with regard to the arrest of accused. In his cross­examination, DW­1 has categorically admitted that he was aware about a love affair between the accused and PW­7.

24. From the aforesaid discussion, the false implication of the accused in the matter cannot be ruled out. Therefore, prosecution has failed to prove the charges framed against the accused in the matter beyond reasonable doubt. The accused Gaurav Jain accordingly stands acquitted in the matter. Let Bail Bond this stage, Bail Bond U/s 437­A Cr.P.C furnished by the accused, same is accepted in accordance with law.

25. File be consigned to Record Room.

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