Delhi District Court
Abdul Sattar S/O Ali Mohammed vs The State on 29 September, 2009
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IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE, 01, SOUTH
PATIALA HOUSE COURT
Criminal Appeal No. 24/2006
Abdul Sattar s/o Ali Mohammed
r/o Village and PO Dariyabad
Distt. Barabanki (Uttar Pradesh) Appellant
Versus
The State Respondent
FIR No. 648/95
Police Station Ambedkar Nagar
Under section 377 IPC
Date of Institution 16.12.08
Date when arguments
were heard 23.09.09
Date of judgment 29.9.09
JUDGMENT
The present appeal under Section 374 (2) of the Criminal Procedure Code is filed against the judgment dated 22/8/2006 passed by Ld. Metropolitan Magistrate, whereby the appellant herein was convicted for 2 offence under Section 377 CrPC and was sentenced vide order dated 18.9.06 to undergo Rigorous Imprisonment for three years and fine of Rs. 1,000/ and in default of payment of fine, to undergo further S.I. of one month.
BRIEF FACTS The brief facts of the case, as per the prosecution, relevant for deciding the present appeal are as under:
On 1/10/1995 at about 8/8.15 pm when complainant/Ram Kumar was going to take bath, he heard scream of his son from the first floor of the house bearing property no. 14/252, Dakshin Puri, New Delhi. He rushed upstairs and found that the door was bolted from inside and when he got the door opened and found appellant buttoning his pant and found his son weeping. On asking what happened, his son kept weeping and the appellant stated that he felt sorry. He took both the appellant and his son to the Police Station. His son was sent by the Police to the hospital for medical examination. Thereafter, FIR bearing no. 648/1995 was registered and challan, on completion of investigation, was filed in the court. CHARGE AND PLEA OF THE APPELLANT 3 Prima facie case for the offence punishable under Section 377 IPC was framed against the appellant by learned trial court vide order dated 8.10.98 to which appellant pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case prosecution has examined eight witness in all before learned trial court i. e. PW1 Head constable Sukhdev, PW2 constable Ashok Kumar, PW3 head constable Mahender Singh, PW4 Sh Manoj Kumar, PW5 Ram Kumar, PW6 Dr D N Bhardwaj, PW7 Dr Joy Tirkey and PW8 Sub Inspector Anil Kumar.
PLEA AND DEFENCE OF APPELLANT/ACCUSED Statement of appellant under Section 313 CrPC was recorded before learned trial court on 22.3.06 in which appellant denied the incriminating evidence put to him and stated that he is innocent and has been falsely implicated in this case. appellant did not lead evidence in defence.
After trial the learned Metropolitan Magistrate, convicted appellant for offence under Section 377 CrPC sentencing him to Rigorous 4 Imprisonment for three years and fine of Rs. 1,000/ and in default of payment of fine, to undergo further Simple Imprisonment for one month. Aggrieved by the said judgment and order on sentence, the appellant/accused filed the present appeal.
The contention of the counsel for the appellant is that the fact that there was no independent witness in the instant case has not been considered by the learned Metropolitan Magistrate the counsel pointed out that the charge against the appellant was framed in respect of Ram Kumar, who is father of the victim Manoj Kumar, thus, there is manifest error in the findings of the Ld. MM. In this regard the counsel submitted that the opening para of the impugned judgment itself shows that the appellant voluntarily committed carnal intercourse with Ram Kumar aged 7 years. Another defect in the order of the charge pointed out is that the property no. in challan is mentioned as property no. 14/254, whereas as per the complaint, the place of incident was property bearing no. 14/251. The counsel pointed that material defect in charge vitiates trial and relied on decision in Sou. Vijaya @ Baby vs. State of Maharashtra 2003 (3) JCC 1453, in this regard.
The counsel urged that the statement of PW 7 doctor, wherein he 5 stated that he did not observe any blood mark or external injury nor collected any swap on the penis, goes to show that no such incident occurred. Further he submitted that the doctor also deposed that when he asked the appellant for erection, he could not give the same, thus, this also suggests that no carnal intercourse ever took place. ARGUMENTS The learned counsel also argued that both the complainant and the victim alleged that there was blood on the anus but no blood stained clothes have been recovered from the person of the appellant or the victim which also shows that the appellant has been falsely implicated in the said case. The learned counsel also contended that the story of the prosecution that the when the door of the room was got opened the appellant was buttoning up his pant is false as there was no recovery of pant to show that whether it had buttons or a zipper, also, a person who committed such an act would definitely button up his pants in front of the complainant. The counsel pointed out that the Ld. MM. had no jurisdiction to try the case as on the date of the incident, the appellant was under 16 years of age. The counsel also contended that the appellant has been falsely implicated in this case as the families of the complainant and the appellant have 6 animosity and to vent out enmity, the present false case has been filed by the complainant. Thus, the present appeal should be allowed and the judgment of Ld. MM. should be set aside.
On the contrary contention of Ld. APP for the State is that there is no merit in the present appeal and the same is liable to be dismissed by this court. He also urged that the contentions regarding defective order on charge and pertaining to discrepancies in the statements are fallacious and have been dealt in detail by the Ld. MM in impugned judgment and thus need to be confirmed in this appeal.
FINDINGS I have heard Ld. Counsel for the appellant, learned Additional Public Prosecutor for respondent/State and perused the record and the judgment cited by the learned counsel for the appellant.
Lord Macaulay drafted and introduced the Indian Penal Code in the time of British India. Section 377 of IPC comes under the heading 'of unnatural offences'.
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The expression, 'unnatural offences' is related to the concept of sodomy but also includes "crimes against nature" like bestiality and necrophilia.
For bringing home the offence under S.377, IPC, following ingredients should be satisfied:
(a) Whoever/ any person who voluntarily has carnal intercourse against the order of the nature;
(b) Such carnal intercourse must be had with any man, woman or animal,
(c) Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section;
(d) Such person 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.
It cannot be disputed that a charge forms the foundation of trial and is the most important step in it. The purpose and the object behind the charge is that the appellant must know and understand what he is being tried for and must be told in clear and unambiguous terms. But it is equally well settled that any irregularity in order on charge does not vitiate trial prior 8 to coming into force of Section 464 CrPC, the leading judgment on the point in hand is the decision of the apex court rendered in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116. After examining the various provisions contained in the Code of Criminal Procedure, 1898, their Lordships were pleased to observe as under : "Sections 225, 232, 535 and 537(a) between them cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice."
"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the appellant and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have 9 been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere, but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed, the conviction must stand, also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage.
If it was not, and particularly where the appellant is defended by counsel it may in a given case be proper to conclude that the appellant was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the appellant."
Now, the Code of Criminal Procedure expressly provides in Section 10 464 that no error, omission or irregularity in the charge or even total absence of a charge, shall vitiate a trial unless prejudice to the appellant is shown. The corresponding provisions contained in the present Code are in no way different and the aforesaid judgment holds the field even today.
As regards the issue vizaviz the defect in the order on charge as to the name of the victim and the exact property no. of the place of incidence, it is clear from the foregoing discussion, that the same has no bearing on the merits of the case. The decision in Sou. Vijaya's case (supra), relied upon by the counsel for the appellant is of no assistance to him as the same is on different factual situation and pertains to error in framing the charge for wrong offence. Thus, the said contention of counsel for the appellant has no merits as no prejudice is shown to have been caused to the appellant/accused on account of said defect in the charge.
As regards the issue of the age of the appellant at the time of commission of the crime, the same has been decided by the trial court vide order dated 25/10/2005 by giving cogent reasons. The said order was not challanged by appellant by appreciating higher Revision/Appeal in this limitation period, so it cannot be agitated in the present appeal. 11
The law as regards independent witnesses is well settled that in the absence of there being any independent witness who saw the crime being committed the testimonies of other witnesses even if they are relatives of the victim cannot be thrown out to the winds. In this regard in Nagina Sharma v. The State of Bihar , 1991 Cri.L.J. 1195 (Patna)(DB), the Division Bench of the Hon'ble Patna High Court observed as under:
29. About the evidence of the witnesses enumerated above, the learned Counsel for the appellants have urged that they are partisan and relation witnesses and so their evidence is not worth reliance, specially when independent and other witnesses were on the spot and they have not been examined like the Presiding Officer, patrolling Magistrate, the police party and members of other castes who had assembled at the polling booth. In the case of Dalip Singh v.
the State of Punjab (AIR 1953 SC 364) the Supreme Court in para 26 at page 366 observed as follows : "Witness is normally to be considered independent unless he or she springs from 12 sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the appellant wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However we are not attempting sweeping generalistion. Each case must be judged on its own fact. Our observations are only made to combat what is so often put forward in cases before us as a general rule ot prudence. There is no such general rule. Each case must be limited to and be governed by its own fact."
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In the case of Masalti v. State of Uttar Pradesh (AIR 1965 SC 202) the Supreme Court has observed at page 209 in para 14 : "There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence Whether or not there are discrepancies in the evidence whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witness. Often enough, where factions prevail in villages and members are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a particular type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid 14 down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence should be rejected because it is partisan cannot be accepted as correct."
In the case of Sadhu Singh v. State of U.P. (AIR 1978 SC 1S06) :
(1978 All LJ 887) it has been observed by the Supreme Court in para 9 at page 1510 that the fact that the witnesses were inimically disposed towards the appellant persons by itself cannot be ground for total rejection of their evidence. In the case of Raman Kalia v. State of Gujarat (AIR 1970 SC 1261) it has been observed by the Supreme Court that "the only comment against the witnesses was that they were inimical to the appellant but that by itself was not a sufficient ground for rejecting their testimony. "In the case of State of Gujarat v. Naginbhai Dhulabhai Patel (AIR 1983 SC
839) the Supreme Court in para 5 at page 840 has observed : "The mere fact that the witnesses were relations or interested would not be itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the 15 mind of the Court."
In the case of Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) the Supreme Court in para 48 at page 1636 observed : "In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or any nemesis against the appellant person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by 16 the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
In the case of Muthu Naicker v. State of Tamil Nadu (AIR 1978 SC 1647) the Supreme Court observed : "In a faction ridden society where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of appellant would go unpunished, if such an easy course is charted."
Again in the case of U.P. v. Ballabh Das (AIR 1985 SC 1384) the Supreme Court in paras 3 and 5 at page 385 observed : "There is no law which says that in the absence of any independent witness, the evidence of 17 interested witnesses should be thrown out at the behest or should not be relied upon for convicting an appellant. What the law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. We might also mention that the evidence of interested witnesses is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other evidence. It may also be mentioned that in a faction ridden village, as in the instant case as mentioned by us earlier, it will really be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses."
"The dominant question to be considered in the instant case is whether the witnesses, despite being interested, have spoken the truth and are credit worthy. Once it is found by the Court, on an 18 analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the Court to reject the prosecution case on that ground alone."
In the case of State of U.P. v. Brahma Das (AIR 1986 SC 1769) the Supreme Court in para 5 at page 1972 observed : "...We are told that there were two factions and there was history of enmity between them. Each faction had lost one of its members in the course of the murder which were committed in the past. But then this is possibly the root cause of the occurrence resulting in the murder of the victim. And the evidence of the witnesses cannot be disbelieved solely on this ground as per the law declared by this Court in numerous pronouncements (Badri v State of U. P., 1975 SCC (Cri) 644; AIR 1975 SC 1985; AIR 1971 SC 2156) To use the language of Jaganmohan Reddy, J. (in Himachal Pradesh v. Om Prakash, 19 (1972) 2 SCR 765 (786) : AIR 1972 SC 975), there is in our view no justification for the High Court in jettisoning this cogent evidence of a conclusive nature on mere conjectures and on the omnibus ground that the witnesses were not independent or impartial which as we have shown is without justification."
From the foregoing, it is manifest that merely because there is no testimony of independent witness in the case, the same is not fatal to the prosecution case. Thus, this contention of counsel for the appellant is also devoid of any merit.
The law as regards appreciation of evidence, in relation to the scrutiny of testimonies of the witnesses is discussed as under:
In the case of State of U.P. v. M.K. Anthony (AIR 1985 SC 48) the Supreme Court observed in para 10 at page 54 : "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of 20 truth. Once the impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor or the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies on trivial matters not touching the core of case hypertechical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the 21 appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and trustful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Crossexamination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and wellwisher of the family carefully giving due weight of the comments made by the learned Counsel for the respondent and the reasons assinged to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial Court. We have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."22
In the case of State of U.P. v. Anil SinghAIR 1988 SC 1998, the Supreme Court observed : "It is also our experience that invariably the witnesses and embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case of overboard, if true, in the main. If there is ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to disbelieve that the inconsistencies or falsehood are also glaring as utterly to destroy confidence in witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished.A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."23
As regards minor discrepancies in evidence of witnesses, the law is as under:
In the case of Bharwada Bhoginibhai Hirjibhai v. State of Gujarat AIR 1983 SC 763, their Lordships of the Supreme Court have observed that over much importance cannot be attached to minor discrepancies. Out of the various reasons some are being quoted below (at page 755 and 756 in paras 5 and 6).
"Para 5 (1). By and large a witness cannot be expected to possess a photographic memory and to recall the detail of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observations differ from person to person. What one may notice, another may not. In object or movement might emboss its 24 image on one person's mind, whereas it might go unnoticed on the part of another.
(4) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time spent. A witness is liable to get confused, or mixed up when interrogated later on."
In the case of State (Delhi Adminstration v. Laxman Kumar (1985) 4 SCC 476) the Supreme Court observed at page 502 in para 45 :
"It is common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persons give the same account of an event, even with reference to minor details, the evidence is branded as parrot like and is considered to be the outcome of tutoring. Having read evidence of these witnesses with great care, we are of the view that the same 25 has the touch of intrisinc truth and the variations are within reasonable limits and variations instead of providing the ground for rejection, add to the quality of being near to truth."
Thus the photographic and dramatic account is to be looked with suspicious eyes in the facts and circumstances when attacks are being made on different deceased and injured in succession. But mental faculty and power of observation differ from person to person and events get imprinted in the memory even in critical and dangerous situations. A person may be in such a place as to notice the events and may give out a dramatic and photographic account. That is why the Court has to search for the intrinsic truth in the narration and if the narration shows minor discrepancy on the touch of an intrinsic truth the Court can rely upon the same. It varies from case to case. That is why despotic formula of acceptance of such in evidence or rejection thereof cannot be laid down.
In the instant case, PW4 victim Manoj Kumar, PW5 complainant/father of the victim Ram Kumar as well as PW 8, SI Anil Kumar testified that they had seen blood on the rectum of the victim. In the MLC of the victim, Ex. PW6/A, also, the doctor who prepared MLC of the 26 victim, has mentioned that there was blood in the anus of the victim. The said doctor also gave the opinion in the MLC that there was penetration in the anus of the victim of the size of adult penis. Further, in the MLC of the appellant, Ex. PW6/B it is opined by the doctor, who did MLC of the appellant, that there is nothing to suggest that the appellant is incapable of performing the intercourse. Further appellant soon after the incident has apologized before father PW5, of the victim as per statement of PW5 Ram Kumar.
From the aforesaid discussion, it is manifest that the victim Manoj Kumar was sodomised by the appellant/appellant.
As regards the discrepancies vizaviz the time of occurance of the incident as contended by the appellant, I do not find any discrepancies in the statements of Pw4 and PW5 in this regard. Both the witnesses have testified that around 6:006:30 pm, the victim was playing on the ground floor. PW 4 stated that the appellant took the victim upstairs, which is the tenanted portion of the house, where the incident took place. PW5 also testified that the incident took place at the first floor of the property bearing no. 14/251.
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In any event as discussed in the case law referred above, minor discrepancies in the statements of witnesses is bound to occur due to lapse of time between the incident and the time when the statement is taken. Furthermore, in cases of sexual offences, the testimony of victim of the incident is a strong circumstance pointing at the guilt of the appellant. In the instant case as well the statement of the victim in corroboration with the statement of PW5 and PW8 as referred before, is a strong circumstance proving the guilt of the appellant.
From the above discussion, there is no reasonable doubt that the appellant is not guilty of the offence under S. 377 IPC and the prosecution has successfully established its case beyond reasonable doubt. Sentence awarded by learned trial court is also not excessive and is reasonable. RESULT OF THE CASE In view of the above discussion, the impugned judgment of conviction dated 22.8.06 and order on sentence dated 18/9/2006 of learned trial court are upheld. However, the period of detention already undergone by the appellant/accused during investigation and trial of this case shall be set off against the term of imprisonment imposed against 28 appellant/accused by this order,as provided u/s 428 Cr.P.C. The judgment be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this order. The file of the appeal be consigned to the record room.
Announced in the open court on 29.09.2009 (S.K.Sarvaria) Additional Sessions Judge01/South Patiala House Court