Delhi District Court
St. vs . Mukesh Etc on 12 March, 2012
FIR No. 130/08 1/15 12.03.12.
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 : Convicted
8. Date of Order : 12.03.12.
FIR No. 130/08 2/15 12.03.12.
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. 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 took 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.
2 Primafacie, case having been made out, charge for offence U/s 354 IPC was framed on the basis of the complaint of the 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.
3 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 FIR No. 130/08 3/15 12.03.12.
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 recorded the disclosure statement of accused Vijay mark A in FIR no. 186/08 PS Prasad Nagar. Thereafter, on 08.10.08 PW5 joined the investigation with SI Rakesh Yadav and thereafter arrested the accused in his presence vide arrest memo Ex.PW6/A and the personal search of accused was conducted vide memo Ex. PW 6/B. PW6 SI Rakesh Yadav is the investigating IO who deposed that the investigation of the present case was marked to him on 07.10.08 and during investigation, he came to know accused Vijay is also involved in another case in FIR no. 186/08 in which the victim was the same. He further deposed that accused voluntarily gave disclosure statement while he was in custody in said FIR which was recorded on 07.10.08 and the accused was arrested in present FIR no. 130/08 on 08.10.08 vide arrest memo Ex.PW6/A and personal search memo Ex.PW6/B. He further proved the site plan Ex.PW6/C and deposed that he recorded the supplementary statement of the complainant. 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 personal search was conducted vide memo E.xPW7/B. He further deposed that accused Mukesh was abusing in filthy language to the people who had gathered at the spot and on the same day he made FIR No. 130/08 4/15 12.03.12.
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 the 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 person 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 the accused Mukesh vide arrest memo Ex.PW7/A . PE was closed vide order dt. 06.02.12 and thereafter statement of both the accused u/s 313 Cr.PC was recorded after putting all the incriminating evidence on record. Both the accused stated without oath that hey have been implicated falsely and wished not to lead any DE.
4 Heard the 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.
FIR No. 130/08 5/15 12.03.12. 5 PW1 is the complainant and mother of the victim who deposed
that the incident took place 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 the locality. When she went in search of her, she did not find her daughter in the gali. Thereafter, both accused Vijay and Mukesh left her daughter at the shop of halwai. 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. At this stage, Ld. Defence counsel was critical about 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. 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.
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. PW1 is not the eye witness in the FIR No. 130/08 6/15 12.03.12.
present matter and has merely deposed as to what was told to her by her minor daughter. 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 has misbehaved with her has also remained unchanged. 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.
6 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 and lyed down near the stairs on the floor and made the victim lie on the floor as well. Then she pointed towards the 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 the accused put scratch marks on her face and arms. Accused Mukesh put his penis twice into her mouth, once in the narrow gali and once in stairs. After doing all this, accused Vijay apologized by saying "mujhe maaf kar de"
while accused Mukesh threatened her that in case she report 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 FIR No. 130/08 7/15 12.03.12.
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 the 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.
7 During her cross examination, PW2 admitted that it was during the summer when she was playing in the ground with her friends and it was around 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 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 FIR No. 130/08 8/15 12.03.12.
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 shop, 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 during cross examination deposed that accused Mukesh used to stare her whenever she used to go with her sister to fill the 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 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".
8 Now the question arises as to whether the deposition of PW2 who is the victim and is a minor girl child can be relied upon . It is well settled principle of law that while appreciating the 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 FIR No. 130/08 9/15 12.03.12.
court should not act on the uncorroborated evidence of a child whether sworn or un sworn. In the present case, the incident occured 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.
PW1 who is the complainant and mother of the victim has categorically deposed that she found that some marks were made on both the cheeks of her daughter when her daughter reached the house on the date of incident. 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 FIR No. 130/08 10/15 12.03.12.
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 lyed 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. In the instant case, PW2 who is the child witness herself is the victim of crime and is the best person to narrate the incident . She while deposing in the court clearly identified both the accused persons and after categorically pointing towards them deposed the exact act which was done by each of the accused person. Accused Mukesh in his disclosure statement Ex.PW7/C admitted that he along with accused Vijay had misbehaved with the victim in the night while she was playing with other kids of the locality. There is no cross examination on the point that the statement was not made voluntarily or that the accused was forced to FIR No. 130/08 11/15 12.03.12.
give the said statement. Hence, I am of the considered view that there is no improvement or contradiction in the deposition of PW2 and she has narrated the incident vividly in the court and the accused can be convicted solely on the basis of testimony of the victim who is a child witness.
9 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.
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) :
FIR No. 130/08 12/15 12.03.12.
"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 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 maleorgan in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal FIR No. 130/08 13/15 12.03.12.
intercourse against the order of nature".
10 In the present case, victim has categorically deposed that the accused Vijay after removing his clothes and her clothes lied 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 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 was quenched by the moment he put his 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 his 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 FIR No. 130/08 14/15 12.03.12.
said act of putting the penis into the mouth of victim and consequent act of making her to drink his 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 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.
11 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 lyed 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 the 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 FIR No. 130/08 15/15 12.03.12.
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.
As regards the offence u/s 506(I) IPC is concerned, PW2 has categorically deposed that the accused Mukesh threatened her that in case she report to the police, he would kill her and whenever she 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 12.03.12 METROPOLITAN MAGISTRATE
Mahila Court (Central), Delhi
FIR No. 130/08 16/15 12.03.12.