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Raj Kumar @ Rocky vs State on 15 March, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 1st February, 2017
Decided on: 15th March, 2017
+ CRL.A. 474/2002
RAJ KUMAR @ ROCKY ….. Appellant
Represented by: Mr. Adit S. Pujari with Ms.
Surabhi Dhar and Ms.Kriti
Awasthi, Advocates
versus
STATE ….. Respondent
Represented by: Mr. Ashok K. Garg, APP for
the State with ASI Rajender
Prasad, PS Delhi Cantt.

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

1. The appellant though charged for offences punishable under Sections
363
/506/377/376/511 IPC has been convicted by the learned Trial Court for
offences punishable under Sections 376/511 IPC vide the judgment dated
15th May, 2002 and directed to undergo rigorous imprisonment for a period
of three years and to pay a fine of ₹10,000/- in default whereof to undergo
rigorous imprisonment for six months vide order on sentence dated 17 th May,
2002.

2. Contention raised by learned counsel for the appellant is that the false
implication of the appellant in the above-noted case is evident from the case
of the prosecution itself, which is further fortified by the material
discrepancies in the statement of prosecution witnesses. After having
tortured the appellant, he was falsely implicated in the above-noted case.
Even as per the finding of the learned Metropolitan Magistrate, the appellant

CRL.A. 474/2002 Page 1 of 11
was less than 18 years at the time of alleged incident and is thus entitled to
the benefit of being a juvenile in terms of the decision of the Supreme Court
reported as (2009) 13 SCC 211 Hari Ram Vs. State of Rajasthan Anr..
Even if this Court believes that there is no false implication, the appellant is
liable to be convicted at best for offence punishable under Section 354 IPC
and released on probation.

3. Case of the prosecution is based on a written complaint given by the
father of the prosecutrix PW-4 vide Ex.PW-4/A received at 7.30 PM on 25th
October, 1998 for an incident of 23rd October, 1998 resulting in registration
of FIR No.447/1998. In the written complaint father of the prosecutrix who
was a Havaldar stated that on 23rd October, 1998 around 2.00 PM when he
went from his office to his residence he asked his wife about the
whereabouts of his daughter who told her that she had left the house a while
ago. When he asked his wife to call the daughter and she was not found,
both of them went out in search of her. Since the minor daughter was not
found in any of the houses, he shouted taking the name of his daughter and
went to the bus stand also but did not find his daughter. When he went back
to his house he found one boy coming down from the stairs hurriedly and his
daughter also came down from the stairs. He saw Shiv Veer Singh running
after that boy to catch hold of him. He immediately realized that the said
boy had done something wrong with his daughter. His wife also shouted to
catch hold of the boy, however the said boy ran towards the drain and with
the help of the Chowkidar he caught hold of the boy beyond the drain.
While apprehending the boy tried to run away, he fell down resulting in
injuries to him. He brought back the boy to the flat where his daughter
informed that the boy had asked her as to who stayed on the roof and she

CRL.A. 474/2002 Page 2 of 11
should show him. The boy slapped the girl and closed her mouth. On the
roof, the boy took out the underwear of the girl and rubbed his private part
on her private part. He thereafter put his penis in her mouth and took out
white fluid. The prosecutrix stated that the boy had a knife with him and had
told her that if she shouted he would slit her neck. She further stated that the
boy told her that she should come downstairs only after he moves away to
some distance. It was further stated that initially the FIR was not registered
because he thought that the same would bring ill-fame to him and his family.

4. On the said FIR after investigation, charge-sheet was filed and
witnesses were examined. The investigating officer of the case PW-11 SI
J.K. Bhardwaj during his cross-examination admitted that prior to receipt of
this complaint Ex.PW-4/A on which FIR No.447/98 was registered a written
complaint of the appellant was received on 25th October, 1998 at 12.30 PM
where after he recorded the statement of the appellant vide Ex.PW-11/DA
for the incident dated 23rd October, 1998. Further on the complaint of
appellant for the incident dated 23rd October, 1998 FIR No. 449/98 was
registered at PS Delhi Cantt under Sections 34/323/341 IPC at 5.50 AM on
26th October, 1998.

5. A perusal of the record shows that FIR No.449/98 was not registered
on the first complaint of the appellant, the version of the appellant was
changed and on the basis of disclosure statement of the appellant recorded in
FIR No.447/1998, FIR 449/1998 was registered.

6. The first version of the appellant in Ex.PW-11/DA which was
recorded on the 25th October, 1998 at 12.30 PM prior to receipt of
Ex.PW4/A was:

CRL.A. 474/2002 Page 3 of 11

“Statement of Raj Kumar, S/o Shri Bishan Dev, R/o RZ-1148
Gali No.5/5, Main Sagar Pur, New Delhi-46 Age 15 years.
I state that I stay at the above address along with my parents
and was a student of 10th standard Army School, Delhi Cantt.
My father is retired as a Havaldar from ASC Army. Earlier we
were staying in CVD quarters. On 23rd October, 1998 at
around 1.30 PM he was going to the house of his friend Sayeed,
S/o Subedar S. Ahmad R/o ND quarters through 226 to supply
family quarters. Near family quarters, 2nd Block 2-3 army
persons were standing on the road. They called me and stated
that ‘you are the same person who had come to sell honey the
earlier day’. I replied that I was a student of Army School, my
father is an ex-serviceman and I had come to take a copy from
my friend Sayeed. On this those persons started beating me and
stated that I was a thief. Other people from the quarters also
collected and started beating me. They tore my pant, cut my left
ear and hung me upside down by ropes from the tree. They hit
me on my soles with danda blows and continued beating me till
4.00 PM. Those people took me down from the tree, dragged
me on the road and again assaulted. In the meantime one
officer of the Army came and I told him everything including my
address, who asked those people to leave me. In the meantime
one Sardarji came who was being addressed as the
Commandant. After talking to those army personnel he told
them to kill me. He asked them why I was not killed and
thrown. Despite the fact I was writhing with pain, those officers
continued beating me with legs and fists. When I asked for
water one of the officers stated that I was a thief and terrorist
and urinated on my face. Thereafter, they kept my hands tied
and burnt me by cigarette butts. They tore my underwear and
threw me outside the gate. After around 9.00 PM when I
regained consciousness I contacted my friends who informed
my parents on 24th October, 1998 at around 11.00 AM.
Thereafter my father went to the Police Station and got me
admitted in DDU Hospital.”

CRL.A. 474/2002 Page 4 of 11

7. Despite this first statement of the appellant and the mandate of the law
that FIR will be registered verbatim on the complaint, the contents of FIR
No.449/98 registered under Sections 34/323/341 IPC are:

“Statement of Raj Kumar S/o Bishan Dev R/o RZE-1148 Gali
No.5/5 Main Sagar Pur, New Delhi.

I state that I am the resident as aforesaid and student of Army
School, Delhi Cant. On 23rd October, 1998 around 1.30 PM
while roaming around station road I reached at Fodder Line
quarters where I had an evil eye on a girl aged 4-5 years. I
took her to the roof due to noise on the ground floor. I came
downstairs whereafter the public ran after me and after
crossing the Nala they caught hold of me and while I was
running I fell down due to which I received injuries on my hand
and feet. Public and the Chowkidar caught hold of me and took
me to the Fodder Line when the little girl pointed towards me
stating that I was the same boy who abused her. On this people
present abused me and beat me with slaps. Thereafter the
Company ASC told the senior officers. Due to fear I did not
state anything and I did not go to my home. Later I did not tell
complete facts to my father. Yesterday my father took me to
DDU Hospital and got me first aid. I can recognize the officers
who caught hold of me and assaulted.”

8. It is thus evident that contrary to the law not on the first statement of
the appellant but his disclosure statement in case FIR No.447/1998, FIR
No.449/1998 was registered. However, in the present appeal the issue is not
whether FIR was wrongly registered on the complaint of appellant and no
action was taken thereon but whether the appellant was falsely implicated in
FIR N o.447/1998, and/or whether the prosecution has been able to prove its
case beyond reasonable doubt against the appellant.

9. Though PW-4 the father of the prosecutrix stood by his complaint, in
his examination-in-chief he further stated that though senior officers came to

CRL.A. 474/2002 Page 5 of 11
the spot and interrogated the appellant he requested them not to hand-over
the appellant to the Police and let him go off in the evening. However, on
his friends telling him that he should not take law in his own hands on 25 th
October, 1998 in the evening time he along with Havaldar Shiv Veer Singh
and Capt. Soni went to PS Delhi Cant and got registered the FIR on the basis
of the written complaint where after his daughter was medically examined.
However, internal examination of the prosecutrix was refused. Though in
examination-in-chief and the complaint, PW-4 stated that he saw the accused
coming down from the stairs he denied this fact in the cross-examination.
He admitted that though he suspected appellant having done something
wrong with his daughter, however he raised the alarm “chor chor”. In cross-
examination, he further admitted that he had not seen his daughter following
the appellant or carrying her underwear, nor did she reveal any fact to him
directly. He also stated that he did not cross the ganda Nala to apprehend the
appellant and he was confronted with his earlier statement wherein it was so
recorded. He also denied that he brought the appellant to his house which
falsifies the version that when the appellant was brought to his house his
daughter pointed out that he was the same boy and narrated the facts.
Besides these material contradictions, on number of other issues also PW-4
was confronted. He admitted that there was no injury on the person of his
daughter.

10. In her examination-in-chief the prosecutrix who was aged 5 years
stated that the appellant laid on her after removing her underwear. She did
not state anything else. However, in her cross-examination she stated that
when her father came appellant was on the roof and he gave beatings to the
appellant and other persons also gathered there and started giving beatings to

CRL.A. 474/2002 Page 6 of 11
the boy. Thus, there are material contradictions between the statement of the
prosecutrix and her father besides variations in her own version.

11. PW-6 the mother of the prosecutrix supported the version of PW-4 to
the extent that after her husband went to the bus stop to search her daughter
and when he came back in the meantime her daughter came downstairs and
she was crying. She picked her up and went inside the house. She stated
that her daughter told her that one boy had done something wrong with her,
however the appellant was not present there. She made inquiries from her
daughter on the next day as on the earlier day she was not in a position to
tell. On the next day her daughter told her that she was given beating by one
uncle.

12. A perusal of the statement of the three witnesses shows that there are
material contradictions about the presence of the appellant at the spot and
where he was apprehended. In the cross-examination PW-6 admitted her flat
was on the first floor and not the ground floor and also stated that she did not
notice any injury on the person of her daughter. Though she admitted that
the appellant was beaten, however she denied that he was apprehended on
the suspicion of being a thief and was brutally manhandled by her husband
and other persons and as he received multiple injuries including fractures and
when his father threatened to lodge a report against her husband and others,
the above case was foisted on him.

13. As noted above, the fact that the complaint of appellant was prior in
time i.e. on 25th October, 1998 at about 12.30 PM whereas the complaint of
PW-4 was given at 7.30 PM on 25th October, 1998 has been admitted by
PW-11 SI J.K. Bhardwaj. The version of appellant in his statement Ex.PW-
11/DA is fortified by his OPD Card and MLC Ex.PW-3/A which notes

CRL.A. 474/2002 Page 7 of 11
number of external injuries including swelling on multiple areas of the body,
multiple bruises, ligature marks on the ankles and the wrist besides stitched
laceration over left ear lobe. The appellant in his complaint has clearly
stated that while he was being assaulted, his ear lobe was cut by a plier and
he was beaten after being tied with ropes and hung to a tree and after he
regained consciousness he went to his friend where he was given primary
medical aid.

14. In his statement under Section 313 Cr.P.C. the explanation of the
appellant in response to the last question is as under:

“I was staying along with my parents and was studying in Army
School Delhi Cantt in Xth class. On 23.10.98 I had gone to
meet my friend Md. Sayeed in the area of CVD quarters at
about 1.30 PM. When I was stopped by 3/4 persons of army,
they accused me of being thief. They beat me up, pulled my
nails with pliers, hung me upside down, cut my ear lobe, cut my
hairs, tore my dress and tortured me upto 4 PM, took me to the
army lines, burnt with cigarette buds, urinated over me and
further tortured me. One Sikh army officer came in between
and was told that I was a thief and I had come to the area to sell
honey when the said officer suggested that I should be killed
and thrown away, he then asked me to be handed over to
military police. I was illegally confined and thrown away at 7
PM, presumed to be dead. My clothes had been removed
during tortured. I then took help from the house of my friend
Yoginder in Nangal who got me medical treatment and had
informed my father the next day. My father cautioned my
torturers of legal action and took me DDU Hospital where my
limbs were put under plaster and I was treated. Police came
and met me in the hospital when I gave statement but when the
army officials felt pressurized they got me falsely implicated in
this case. I am innocent and falsely implicated in this case.”

CRL.A. 474/2002 Page 8 of 11

15. Appellant also examined DW-1 Yoginder Sharma his friend who
deposed that he was the classmate of appellant in year 1998 in Army School,
Delhi Cant. On 23rd October, 1998 appellant’s father telephoned him at
about 8.00 PM to enquire if appellant had come to his house. Thereafter he
went to enquire about the appellant from the house of Mohd. Sayeed who
was also their classmate. Appellant was not found even at the house of
Mohd. Sayeed. When he was returning home he saw some people standing
near the Supply Depot and found Raj Kumar lying there. He was having
injuries on his body and was bleeding from his ear. On inquiries from the
persons standing, he was informed that some people had beaten him taking
him to be a thief. Appellant informed Yoginder Sharma that some Army
persons had beaten him. He took appellant to his house and called a nearby
Doctor who gave him first aid and medicines. Thereafter he informed the
father of the appellant that the appellant would stay with him as he had
injuries. Next day morning at 10.00 AM with the help of his brother he took
appellant to his house and dropped him there. Even in cross-examination by
the learned APP nothing material could be elicited and he reiterated that the
Doctor put bandage on the hands, put some lotion and stitched the left ear of
the appellant.

16. The appellant also examined DW-2 his father who stated that when he
reached back to his home at 9.30 PM on 23rd October, 1998 he did not find
his son. Thus he made inquiries from his friend Yoginder and since he was
not at the house of Yoginder he asked Yoginder to inquire from Sayeed as
well. Rest of the version stated by DW-2 was as told to him by Yoginder.
He further stated that on 25th October, 1998 he went to PS Delhi Cant to
register an offence of beating of his son by Army personnel but the Police

CRL.A. 474/2002 Page 9 of 11
refused to register his case and asked him to first get his son medically
examined. Thus at about 12.50 PM on 25th October, 1998 he took his son to
DDU Hospital where he was informed that he was suffering from grievous
fracture injuries. SI J.K. Bhardwaj reached the hospital and recorded the
statement of his son but did not give him a copy of the same. In the evening
he and his son were taken to the hospital on the pretext of getting their
statement recorded, however they were detained till 4.00 O’ clock and they
were made to sign some documents. On 26th October, 1998 his son was
medically examined at Safdarjung hospital and remanded to judicial custody.
Even when the appellant was produced before the Safdarjung hospital for
examination on 2nd November, 1998 both his hands, fore-arms and both his
legs were under the cast. The nature of injuries suffered by the appellant
which have been duly proved from the medical record of DDU hospital even
though conducted after 2 days of the incident are grievous in nature. From
the injuries received by the appellant, version of the prosecution in the
above-noted FIR is belied and the version of appellant in his complaint
Ex.PW-11/DA is fortified.

17. Though the appellant has taken the plea of juvenility and even as per
the finding of the learned Metropolitan Magistrate the appellant was above
16 years at the time of alleged incident but less than 18 years and thus
entitled to the benefit of juvenility as per the decision of Supreme Court in
Hari Ram (supra), this Court need not go into it as it finds that the version of
the prosecution as reflected is not the true version and after the appellant
gave his complaint alleging beating and torture, a false case was registered
against him.

CRL.A. 474/2002 Page 10 of 11

18. From the evidence on record it can be safely held that not only the
prosecution has failed to establish its case beyond reasonable doubt, the
appellant has been falsely implicated in the case. The impugned judgment of
conviction and order on sentence are set aside.

19. Appeal is disposed of. The bail bond and the surety bond are
discharged.

(MUKTA GUPTA)
JUDGE
MARCH 15, 2017
‘ga’

CRL.A. 474/2002 Page 11 of 11

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