Delhi District Court
St. vs . Mukesh Etc on 23 November, 2012
FIR No. 130/08 1/18 23.11.2012
IN THE COURT OF MS. KIRAN GUPTA
METROPOLITAN MAGISTRATE :MAHILA COURT: DELHI
FIR NO. 130/08
PS Prasad Nagar
St. Vs. Mukesh etc
u/s 354/506/377 IPC
JUDGEMENT :
1. Sl. No. of the Case : 472/2/08
2. Date of Commission of Offence : 20.07.08
3. Name & Add. Of the Complainant : Smt. Krishna
4. Name & Add. Of the Accused : (1) Mukesh
S/o Sh. Naval Kishore
R/o 16/233, H Bapa
Nagar, Karol Bagh,
New Delhi
(2) Vijay @ Sonu
S/o Sh. Raj Kumar
R/o 16/944, H Block,
Bapa Nagar,
Karol Bagh,
New Delhi
5. Offence complained of : U/S 354/506(1)/377 IPC
6. Plea of the Accused : Pleaded not Guilty
7. Final Order : Accused Vijay convicted
u/s 377/354 IPC
FIR No. 130/08 2/18 23.11.2012
Accused Mukesh convicted
u/s 377/354/506(1) IPC.
8. Date of Order : 23.11.2012
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. Present case has been remanded back by Ld. ASJ vide order dated 04.08.2012 with the direction to recall PW 1 for cross examination and pass afresh judgment after hearing both the parties. PW 1 has been cross examined in detail by Ld. Defence counsel and now I proceed with the merits of the case afresh as per the directions of Ld. ASJ.
2 Brief facts of the case are that both the accused persons on 20.07.08 at around 10 pm at Gali Bapa Nagar, Arya Samaj Road, Delhi took the minor girl child(since minor child is the victim of sexual harassment, her identity is concealed and herein after shall be referred as victim) with themselves while she was playing with other children in the gali outside the mithai shop. Both the accused persons put their handkerchief on the mouth of the victim and took her in a gali near the stairs where they removed her clothes and forced her to take their penis into her mouth and also made scratch marks on her face and arms. Further, the accused persons threatened her that if she disclosed the same to anyone, they would kill her and thereby committed an offence u/s 354/377/506(1) IPC.
3 Primafacie, case having been made out, charge for offence U/s 354 IPC was framed on the basis of the complaint of the FIR No. 130/08 3/18 23.11.2012 mother of the victim on 03.08.09 against the accused persons. Thereafter, when the victim deposed in the court on 02.12.10, additional charge u/s 377/506(1) IPC was framed against both the accused persons on the application of Ld. APP on 04.05.11. Both the accused persons pleaded not guilty for the charges framed against them and claimed trial.
4 In order to prove its case, prosecution has examined nine witnesses which are as follows : PW1 Smt. Krishna is the mother of the victim who has proved her complaint Ex.PW1/A. PW 2 is the victim herself. PW 3 ASI Tarsem Kumar has proved the registration of the FIR which is Ex.PW3/A. PW4 Ct. Rajesh Kumar is the assisting IO who accompanied the IO to the place of incident. PW5 Ct. Hari Shankar has deposed that on 07.10.2008 he was posted at PS Prasad Nagar as constable. On that day accused Vijay made a disclosure statement in another case bearing FIR No. 186/08 to SI Rakesh Yadav in his presence. Thereafter, on 08.10.2008 on the basis of preliminary investigation and the disclosure statement , IO SI Rakesh Yadav arrested the accused Vijay in his presence. PW 6 SI Rakesh Yadav has deposed that he recorded disclosure statement of accused Vijay on 07.10.2008 mark A in FIR bearing no. 186/08 and thereafter he arrested the accused Vijay Kumar formally in present FIR on 08.10.2008 vide arrest memo Ex. PW 6/A and his personal search memo is Ex. PW 6/C and recorded the statement of Ct. Hari Shankar and supplementary statement of complainant and prepared the charge sheet and filed the same in the court.
FIR No. 130/08 4/18 23.11.2012 5 PW7 HC Hazari Lal deposed that on 05.09.08, one secret
informer informed him that accused Mukesh was present at 16/2333, H Bapa Nagar, and he used to do obscene activities with small girls . Then he along with ASI Kiran Sethi went to the said place and arrested accused Mukesh vide arrest memo Ex. PW7/A and his personal search memo is Ex PW7/B. He further deposed that accused Mukesh was abusing in filthy language to the people who have gathered at the spot and on the same day he made the disclosure statement voluntarily and disclosed the obscene activities which he did with young girls of the locality . The disclosure statement is Ex.PW7/C. PW8 Insp. Ram Niwas recorded the statement of complainant Ex.PW1/A and made endorsement on the same which is Ex.PW8/A and handed over the rukka to Ct. Rajesh for registration of the FIR. PW9 W SI Kiran Sethi is the second IO in the present matter to whom the investigation was handed over on 30.08.08. She also deposed that one secret informer informed her that one person who used to do obscene activities with the small girls was present near Bapa Nagar. Thereafter she along with Ct. Hazari Lal on the identification of secret informer apprehended the accused Mukesh and duly informed the SHO who directed her to take action under section 107/151 Cr.PC and consequently she prepared the kalandra which is mark X and arrested accused Mukesh vide arrest memo Ex.PW7/A. FIR No. 130/08 5/18 23.11.2012 6 PE was closed vide order dt. 06.02.12 and thereafter statement of both accused u/s 313 Cr.PC was recorded after putting all the incriminating evidence on record. Both the accused stated without oath that they have been implicated falsely and wished not to lead any DE. Accused Mukesh further stated that he has been falsely implicated in this case at the behest of accused Vijay.
7 Heard arguments addressed by Ld. APP for the State and Ld. Counsel for both the accused. I have carefully considered the facts and circumstances of the present case. I have gone through the charge sheet, annexures and documents on record and entire material relied upon by the prosecution.
8 PW2 has deposed that she was playing pehli duggo with her seven friends namely Salony, Divya, Varsha , Pooja and her sister was also playing with them. They were playing outside the mithai shop . Both the accused persons caught hold of her and took her near the stairs. Then both the accused persons removed her clothes. Then she pointed towards accused Vijay and deposed that he removed all his clothes and her clothes and made her nude. He laid down near the stairs on the floor and made the victim lie on the floor as well. Then she pointed towards accused Mukesh and said she was not willing to take his penis into her mouth , but he forcibly put his penis in her mouth . He also gave toffee to her. Accused Vijay made her sit on his lap and both accused persons put scratch marks on her face and arms. Accused Mukesh put his penis twice into her mouth, once in the FIR No. 130/08 6/18 23.11.2012 narrow gali and once at stairs. After doing all this, accused Vijay apologized by saying "mujhe maaf kar de", while accused Mukesh threatened her that in case she reports to the police, he would kill her and whenever she would meet him, he would kill her. He threatened her by saying " jab milegi tabi maar doga". Both the accused persons further lured her by saying that they would buy sandal and chappal for her and they had taken her with them by saying this. She further deposed that she was not able to speak "mera gala bhi atak gaya tha aur mai bol nahi paa rahi thi". She further deposed that she tried to raise voice but both the accused persons put their hand on her mouth and took her in the gali. She again categorically deposed that accused Mukesh put his penis twice in her mouth whereas accused Vijay put his penis in her mouth once and misbehaved with her in a very vulgar manner repeatedly. After doing all this, she put all her clothes herself and accused persons dropped her near her grand mother's house.
9 During her cross examination, PW2 admitted that the incident occurred during summer when she was playing in the ground with her friends at about 8 pm in the night . She was playing with her friends in the playground when accused persons forcibly took her from there . She tried to shout , however the accused persons put a handkerchief on her mouth and took her away with them. Her friends who were playing with her did not come to know that the accused had taken her at that time. She was told by her sister Vandana that after some time they tried to search for her. She further admitted that sweet shop in front of which they were playing with other children was open FIR No. 130/08 7/18 23.11.2012 at that time and a lot of people were present near the shop and some people were also walking in the gali while the accused persons were taking her along with them. She further admitted that she did not shout as she was afraid of the accused persons. The accused persons had pulled her hairs and took her to a far distance from the place where she was playing with other children and the place where they took her was near the house of her dadi. She further admitted that it took around 23 minutes to reach that place and accused persons took her on the stairs of the second floor of some building and it was dark at that time. In the said building, there is one shop which was closed since long time. She further admitted that accused persons made her drink their urine and they had removed their clothes and put nail marks on her entire body. She further admitted that accused persons made her drink the urine and did not do anything else with her. Then she pointed towards accused Vijay and stated that he is staying in the gali behind from where they go to school and accused Mukesh is residing at Minto Road where she used to go for filling water with her sister. She further deposed that accused Mukesh used to stare her whenever she used to go with her sister to fill water in the plastic can. She further admitted that she reached her house on the date of incident at about 11 pm and when she reached her house, she told everything to her mother and police was already present at her house. She further admitted that she had told her mother that the accused persons had removed her clothes as while leaving her , the accused persons "ne mujhe ulti salwar pehna di".
FIR No. 130/08 8/18 23.11.2012 10 Now the question arises as to whether the deposition of
PW2 who is a minor girl child can be relied upon . It is well settled principle of law that while appreciating evidence of a child witness of extreme tender age, it would be desirable for the court to keep in mind the principle that although there is no bar in accepting the uncorroborated testimony of a child witness, yet prudence requires that court should not act on the uncorroborated evidence of a child whether sworn or un sworn. In the present case, alleged incident occurred when the victim was 8 years old and she deposed in the court when she was around 10 years old. PW2 has categorically identified both the accused persons in the court and has further narrated in detail the alleged incident. Victim vividly described the incident in the court both during her examination in chief and in her cross examination, which proves that how the said incident imprinted in her mind. She despite being of such a tender age stood the test of cross examination and again narrated the horrifying incident in the court. She answered every question put to her by Ld. Defence counsel. She admitted that she did not shout as she was afraid of the accused persons and the accused persons had pulled her hair and took her to a far distance from the place where she was playing with other children at around 8 pm in the night in the gali near the mithai shop. She further admitted that accused persons took her on the stairs of the second floor of some building and it was dark at that time. She further admitted that accused persons made her drink their urine and they had removed their clothes and her clothes and made nail marks on her entire body.
FIR No. 130/08 9/18 23.11.2012 11 She further admitted that accused persons made her drink the urine and did not do anything else with her. She in her
examination in chief categorically pointed towards accused Mukesh and said that he forcibly put his penis into her mouth and also gave toffee to her. Then she pointed towards accused Vijay and deposed that he removed all his clothes and made her nude and he laid down near the stairs on the floor and made her lye on the floor as well and put his penis twice in her mouth. In her cross examination by Ld. Defence counsel , PW2 categorically stated after pointing towards accused Vijay that he is staying in the gali behind from where they go to school and accused Mukesh is residing at Minto Road where she used to go for filling water with her sister. She further admitted that she reached her house on the date of incident at about 11 pm and when she reached the house she told everything to her mother and police was already present at her house. She further admitted that she had told her mother that the accused persons had removed her clothes as while leaving her , the accused persons "ne mujhe ulti salwar pehna di". The said fact that when the victim reached the house, police was already present and she narrated the entire facts to her mother is corroborated with complaint Ex.PW1/A. From the testimony of PW2, I am of the view that way the victim has deposed precisely the incident, her testimony can be relied upon. Further, the testimony of PW 2 is corroborated with the testimony of PW 1 ie her mother.
12 Even PW1 who is the complainant and mother of victim FIR No. 130/08 10/18 23.11.2012
has deposed that the incident took place one day prior to Shivratri in the year 2008 at about 8.30 pm. Her daughter aged about 8 years was playing in the gali with other children of locality. When she went in search of her, she did not find her daughter in the gali. Her daughter suddenly found her at the shop of halwai while she was searching her. When she inquired from her daughter, she told her that both the accused persons have misbehaved with her and she found that the accused persons have made marks on both the cheeks of her daughter. Thereafter, she gave her statement Ex.PW1/A to the police.
13 PW 1 during her cross examination has admitted that victim had gone out to play at around 8:30 pm. Child of the neighbour told her that someone had taken the victim. She did not believe the child, but when victim did not return, she herself went to see her at around 9:00 pm. Her elder daughter and a neighbourhood child told her that one boy had taken her daughter. She admitted that her elder daughter Vandana and neighborhood child Saloni were also playing with the victim at that time. When she was informed by her elder daughter Vandana and Saloni that some one had taken the victim, she went to search her. Then she called at number 100. When police came, she told to the police that Vandana and Saloni have informed her that some one had taken the victim. Police came at around 9:30 pm and the victim returned at around 10:45 pm. She had gone in search of the victim and found that victim was standing near Halwai Shop. The shop of the Halwai is at the distance of 5 gali from her house and she was accompanied by her sister and neighbourer along with police officials FIR No. 130/08 11/18 23.11.2012 at that time. They took back victim to their house and when they reached the house she inquired from the victim. Victim disclosed her that she was taken by two boys in the shop at Tank Road. They removed her clothes and one boy pulled her hair while another put his toilet wali jagah in her mouth. Victim told these facts immediately on the same day before recording of her statement by the police. She admitted that she has told this fact to the police also. When she was confronted with her initial complaint Ex. PW 1/A where the same was not recorded, she volunteered that she had told to the police this fact in detail but police officials told her that the victim would be medically examined and further said " ladki jaat hai agar medical karwaogi toh aage shaadi may problem ho sakti hai". She denied the suggestion of Ld. Defence counsel that the victim did not tell her that accused persons put their toilet wali jagah in her mouth. She specifically denied the suggestion that she has not told to the police about the said incident. She further deposed that victim told her that the boy who took her was wearing pink shirt and black pant. She admitted that she has stated to the police that she has confirmed from the victim 'ki uske saath koi galat kaam nahi hua hai". She admitted that she had told to the police that accused persons had done ChummaChatti with her daughter. At the same time she volunteered that "Us samay meri beti ne ulte kapde pehne huye the". When she was confronted with the initial complaint Ex. PW 1/A, she stated that she does not know whether the police had written the same or not. She further admitted that police did not investigated from any person except her from the spot and none of the statement of either of the witnesses was recorded FIR No. 130/08 12/18 23.11.2012 in her presence by the police. Accused Vijay was arrested by the police after one month of the incident and she along with her daughter was called by the police when accused Vijay was apprehended. She admitted that she has stated to the police on the date when they were called in the police station that accused Vijay has misbehaved with her daughter on earlier occasions also. On the said date, statement of victim was also recorded in another FIR bearing no. 186/08 . She further deposed that she has told to the police that when the victim returned back she was having certain bite marks on her cheeks. When she was confronted with her initial complaint Ex. PW 1/A she stated that she had told to the police but does not know why the police has not stated so in the complaint. She denied the suggestion of Ld. Defence counsel that she did not tell about the bite marks to the police.
14 It is argued by Ld. Defence counsel that none of the facts that accused put their toilet wali jagah in the mouth of the victim finds mention in the complaint Ex. PW 1/A and it is only an afterthought that complainant has deposed in such a way at this stage in order to falsely implicate the accused persons. Further, Ld. Defence counsel has pointed out the contradictions in the examination in chief of the complainant and her initial complaint Ex.PW1/A. It is argued by ld. Defence counsel that in Ex.PW1/A , it is stated that at around 9.45 pm, the daughter of the complainant was playing in the gali and when the complainant did not find her, she called at number 100 and when the police reached at her house, the victim also was present in the house.
FIR No. 130/08 13/18 23.11.2012 Her daughter told her that while she was playing in the gali, two boys misbehaved with her and described the clothes which the accused were wearing at that time.
15 Perused the statement Ex.PW1/A and the testimony of PW1, the contradictions pointed out by Ld. Defence counsel are not very material and do not go to the root of the case of the prosecution. Moreover, there is no suggestion regarding these minor contradictions in the entire cross examination of PW1. The fact that the victim was playing in the gali with the minor children in the night at around 8:008:30 pm has remained unchanged. The fact that the victim told her mother that the accused persons have misbehaved with her has also remained unchanged. From the testimony of PW 1 and 2 it is evident that victim was wearing "ulte kapde" when she reached back her house. From the above discussion, I am of the view that testimony of PW 2 is reliable and is further corroborated with the testimony of PW 1. The minor contradictions regarding the exact time and others are not so material to destroy the case of the prosecution. These contradictions are not fatal to the case of the prosecution.
16 Now the second question which is for consideration is whether the putting of penis in the mouth of the victim is an unnatural offence u/s 377 IPC. The testimony of PW2 regarding the fact that the penis was put in her mouth by both the accused persons has remained unchanged and is further corroborated with the testimony of PW 1.
FIR No. 130/08 14/18 23.11.2012 In AIR 1925 Sindh 285 (1925 (26) Crl. L.J. 945)(Khanu V. Emperor) The meaning of the word intercourse has been considered "
intercourse may be defined as mutual frequent action by member of independent organisation. By a metapher the word intercourse, like the word commerce, is applied to the relations of sexes. Here also, there is the temporary visitation of the organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nervous consequent on the sexual crisis. But there is no intercourse unless the visiting member if enveloped at least partially by the visited organism, for intercourse, connotes reciprocity. Looking at the question in this way, it would be seen that the sin of Gomorrah is no less carnal intercourse than the sin of Sodom".
In AIR 1934 Lahore 261 :(1934 (35) Crl.L.J. 1096) (Khandu V. Emperor) :
"Sexual intercourse per nose with a bullock is an unnatural offence within the meaning of Section 377 IPC.
In Lohana Vasantlal Devchand V. The State . "In this case, there were three accused. Accused 1 and 2 had already committed the offence, in question, which was carnal intercourse per anus, of the victim boy. The boy began to get a lot of pain and consequently, accused 2 could not succeed having that act. He therefore voluntarily did the act in question by putting his male organ in the mouth of the boy and there was also seminal discharge and the boy had to vomit it out. The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offence u/s 377 IPC. It was held : The act was the actual replacement of desire or FIR No. 130/08 15/18 23.11.2012 coitus and would amount to an offence punishable u/s 377 IPC. There was an entry of male penis in the orifice of the mouth of the victim. There was the enveloping of a visited member by the visiting organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said that the act in question amounted to an offence punishable u/s 377 IPC.
What was sought to be conveyed by the explanation was that even mere penetration would be sufficient to constitute carnal intercourse, necessary to the offence referred to in section 377. Seminal discharge, ie the full act of intercourse was not the essential ingredient to constitute an offence in question. It may be true that the theory that the sexual intercourse is only meant for the purpose of conception is an out dated theory. But at the same time it could be said without any hesitation that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature".
17 In the present case, victim has categorically deposed that the accused Vijay after removing his clothes and her clothes laid besides her and misbehaved with her in a very vulgar manner and also put his penis once in her mouth whereas accused Mukesh forcibly put his penis twice in her mouth. She stood the test of cross examination and admitted in her cross examination that both the accused persons took her on the stairs of second floor of some building forcibly while she FIR No. 130/08 16/18 23.11.2012 was playing with other children in the gali and made her drink their urine and further removed her clothes and put nail marks on her entire body. PW2 in her examination in chief has deposed that she was not able to speak "mera gala bhi atak gaya tha aur mein bol nahi pa rahi thi". From the above said judgments as discussed, it is clear that the insertion of the penis into the mouth of the victim or movement of penis in such a way as to create orifice like thing for making the manipulated movements of insertion and withdrawal tantamount to unnatural sex as defined in sec. 377 IPC. The sexual appetite of accused persons was quenched by the moment they put their penis in the mouth of victim. PW2 in her cross examination admitted that accused persons made her drink their urine. The fact that both the accused persons put their penis into her mouth has remained unchanged during her examination in chief and in her cross examination. The child of such a tender age would not realize the real motive of the accused persons when they forced their to take their male organ in her mouth. Hence, the specific deposition of the victim that the accused persons made her drink their urine cannot be termed as an improvement . The act of putting the penis into the mouth of victim and consequent act of making her to drink their urine is against the order of nature and falls within the ambit and sweep of section 377 IPC. Hon'ble Supreme Court in plethora of its judgments has categorically held that the sole testimony of witness can be relied upon if the same is credible and trustworthy. The testimony of victim in respect of alleged incident of putting the penis into her mouth has remained unchanged when she was examined before the court. It is FIR No. 130/08 17/18 23.11.2012 highly improbable to expect from the minor child of 10 years to understand the complete process and depose emphatically using the exact terminology. However, in the present case, she categorically deposed that accused Vijay put his penis forcibly in her mouth once and accused Mukesh put his penis forcibly twice in her mouth. Hence, on the basis of afore said discussion, both the accused are accordingly convicted for offence U/s. 377 IPC.
18 As regards the offence U/s 354 IPC is concerned, PW2 has categorically deposed that both the accused persons removed her clothes . She in her examination in chief pointed towards accused Vijay and deposed that he removed all his clothes and made her nude and laid down near the stairs on the floor and made her lye on the floor as well. She further deposed that accused Vijay made her sit on his lap and both the accused persons put scratch marks on her face and arms and both the accused persons put their male organ into her mouth. The act of misbehaving with the victim has also been admitted by accused Mukesh in his disclosure statement Ex.PW7/C where he has admitted that he misbehaved with victim along with accused Vijay. There is no cross examination on this point by ld. Defence counsel in the entire testimony of either of the witnesses, hence both the accused are also convicted for offence u/s 354 IPC.
19 As regards the offence u/s 506(I) IPC is concerned, PW2 has categorically deposed that accused Mukesh threatened her that in case she report to the police, he would kill her and whenever she FIR No. 130/08 18/18 23.11.2012 would meet him, he would kill her. She further deposed that he threatened her by saying " jab milegi tabhi maar dooga", hence accused Mukesh is hereby convicted for the offence U/s 506(I) IPC also. Since, there is no specific allegation of threatening against accused Vijay, he is acquitted for the offence U/s 506(1) IPC.
Announced in the open court (KIRAN GUPTA)
on 23.11.12 Metropolitan Magistrate
Mahila Court (Central), Delhi
FIR No. 130/08 19/18 23.11.2012