Delhi District Court
Titled As Harjit Singh vs . State Of Punjab 2002 Scc (Cri) 1518 And ... on 31 March, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 21/1/08
State
Versus
1- Deepak @ Deepu S/o Dharam Chand,
R/o Jhuggi 16/B/155,
Sanjay Basti, Timarpur,
Delhi.
2- Sonu Kataria S/o Soheb Singh,
R/o G-297, Shiv Vihar Road,
Karawal Nagar,
Delhi.
3- Ramu S/o Ramdev,
R/o Jhuggi No. 16/132,
Sanjay Basti, Timarpur,
Delhi.
(i)Case arising out of FIR No. 99/2008
U/S:365/377/342/506/324
/ 325/367 IPC
P.S. Timarpur
(ii) Date of FIR 20.02.2008
(iii) Date of Institution 20.05.2008
(iv) Date of Final Arguments 26.02.2010
(v) Judgment reserved on 11/03/10
(iv) Date of judgment 18.03.2010
JUDGMENT
The prosecution story as per statement of PW12 SI Sahib Singh are that on 20/02/2008 while posted at PS Timarpur, he along with Constable Satbir were patrolling in the area of truck parking Timarpur. Then Contd..........
/2/ two boys namely Shamsher Kumar and Baldev who were in a injured condition found there one of them was injured on his hand. SI Sahib Singh enquired from them about the incident and they informed that in the night of 19-20/02/2008 while they were present in parking of bus bearing No.DL1PA7808 was stationed then in the midnight, one Deepak resident of Sanjay Basti along with his other associates had caused beating to them and on the point of knife taken them to the nearby park/jungle and on the bench and three of them including Ramu and Sonu Kataria had sodomized Shamsher turn by turn and also attempted to sodomized Baldev. Shamsher informed that they were taking names of Ramu and Sonu during discussion at the time of incident. They have threatened to kill Shamsher if disclosed about the incident to anyone and they were again brought to the same bus and closed in the bus. SI Sahib Singh recorded statement of Shamsher vide Ex Pw1/A and since both Shamsher and Baldev were in a very shattered condition they were sent for medical examination through Ct. Satbir. In the meantime Constable Vijay Pal came to the spot, prepared Tehrir Ex Pw12/A and gave to Vijay Pal who went for registration of FIR. Thereafter on the pointing out of Shamsher SI Sahib Singh prepared Site Plan Ex. Pw12/B. Crime Team was also called at the Contd..........
/3/ spot, the photographs of the scene of Crime and the bus were taken and report Pw2/C obtained. There was a jacket and baniyan found at the spot which was sealed in a Pulanda with the seal of SS and seized vide seizure memo Pw4/C, some blood stains on the window of bus the blood stain piece with blood stain gouge were taken and seized in a Pulanda with the seal of SS and seized vide memo Pw4/A. There was some blood found on a stone, the said blood was taken on a gouge and the piece of stone was also taken and sealed in a Pulanda with the seal of SS and seized vide memo Pw4/B. The earth control sample was also taken from near the stone and sealed in a Pulanda with the seal of SS and seized vide memo Pw4/D. The bus was seized vide seizure memo Pw4/E, the Constable Satbir had produced six sealed Pulandas of examination of Shamsher by the doctor seized vide memo Pw7/A. Thereafter, they made a search for accused Deepak who was found in Sanjay Basti nearby and was identified by complainant Shamsher and Baldev. He was arrested vide memo Pw4/F, his personal search conducted vide memo Pw4/G. He made a disclosure statement with regard to the above crime which is ExPw4/I and he pointed out the place of incident vide pointing out memo Ex Pw4/H. The accused Deepak was also medically examined at Aruna Asif Ali hospital. The three sealed Pulandas prepared by the doctor regarding examination of Deepak Contd..........
/4/ seized vide seizure memo Pw7/B. Accused Deepak was produced in court and his police remand was obtained. Accused disclosed about the knife used in incident and got recovered blood stained knife from truck parking area near Balak Ram hospital Timarpur. Sketch of knife Pw4/J was prepared, knife sealed in a Pulanda with the seal of SS and seized vide seizure memo Pw4/K prepared. Accused Deepak disclosed whereabouts of the accused Sonu Kataria and Ramu and had pointed out the resident of both the accused persons. Accused Deepak was produced after Police remand in Court. SI Sahib Singh continued to search for the Sonu and Ramu and also obtained their warrant as they were hiding. On 16/3/2008 SI Sahib Singh along with Ct. Vijaypal, Satbir and Complainant Shamsher and PW Baldev again went in search for accused persons. The accused Ramu and Sonu were apprehended from near Old Police Station in Timarpur area. Both Ramu and Sonu arrested vide memos Pw4/L, and 4/N their personal search vide memo Ex Pw4/M, Pw4/O. Disclosure statements of Sonu and Ramu are Ex Pw4/Q and 4/P were recorded. Both of them also pointed out the place of incident and memo Pw4/R prepared. Both Ramu and Sonu were medically examined in Aruna Asif Hospital and doctors had prepared six sealed Pulandas which were seized vide memo Pw4/S. SI Sahib Singh had Contd..........
/5/ deposited the Pulandas with the MHC(M) on the same day when seized, he also recorded the statements of witnesses whenever they were joined in the investigation. he had collected the MLCs of Baldev,Shamsher vide Ex Pw8/B and 8CB. The MLCs of accused persons Deepak Ex Pw9/A, Sonu Ex Pw9/B and of Ramu Ex Pw9/C were collected. He had also collected the photographs prepared by the photographer Ex Pw.2/A1 to A8. The sealed Pulandas were sent to FSL Rohini through Constable Satbir and later on the result of FSL was obtained vide Ex Pw12/C. SI Sahib Singh has also exhibited the photographs showing the bus, blood stain in the bus, cloth and the place of occurrence taken by the photographer vide ex. PW2/A1 to ex. PW2/A-8 and their negatives also vide Ex. PW2/B. After completion of investigation challan was filed in the court.
After completion of proceeding u/s 207 Cr.P.C, the case file was assigned to the predecessor of this court and a prima facie charge for offence punishable u/s 450/324/365/377/342/506/34 IPC has been framed upon all the accused. For which they pleaded not guilty and claimed trial when the same was read over and explained to them.
In order to establish the case beyond all reasonable doubts, prosecution cited in the list of witnesses fifteen witnesses and out of them twelve witnesses are examined.
Contd..........
/6/ PW1 Shamsher Kumar is the complainant and victim in the hands of the accused persons. He has stated that he was doing the job on tourist bus for last three four years. On intervening night 19-20 February, 2008, he was doing duty as helper alongwith his associate Baldev at bus NO. DL1PA-7801 and an altercation took place between Sonu and Baldev outside the bus and after some time Sonu alongwith three four associates came near the bus and Sonu opened the folding gate of their bus with the help of knife and forcibly entered inside their bus alongwith his three four associates. In the midnight Sonu caused injuries to him and his friend Baldev with dandas and lathis and went away from their bus after extending threats and also identified accused Sonu. It is further testified that on 20.2.2008 when he and his friend Baldev were going to get lodge report against the accused persons and their associates, in the way near main road accused Sonu alongwith his six associates met them and took them in a jungle and confined him near the bushes. He was beaten by accused Sonu and his associates by giving lathi, danda and knife blows. Baldev was also beaten by them with iron pipe and caused fracture on his left arm. Accused Sonu and his associates put off his under garments forcibly and made naked to Shamsher and Baldev. Thereafter he and Baldev were taken to nearby park at a distance ahead from Contd..........
/7/ truck parking of Timarpur. Accused Sonu did unnatural act/sodomy upon him against his wish and consent. Thereafter two associates of accused Sonu also did Sodomy/unnatural act upon him, one by one against his wish and consent. PW Shamsher pointed out towards accused Deepak @ Deepu saying that he is the associate of accused Sonu who did unnatural act/sodomy upon him. Associates of Sonu are not present in court today who have urinate in his mouth after the incident of sodomy. Accused Sonu & his associate took him and his friend Baldev to their bus and confined him and his friend Baldev inside the bus and extended threats to kill them in case they will go to PS for lodging the complaint against them. PW Shamsher has further testified that in the morning at about 6/6.30 pm on 20.2.08 when some other buses came inside the parking, he and his friend Baldev came down from their bus and met to some other helper and conductor of other buses. Parking official called police. Thereafter his statement ex. PW1/A was recorded. Accused Ramu has also caused injury to him and his friend Baldev then he had come alongwith accused Sonu and his associates at first time. It is denied that accused Ramu did unnatural offence upon him or he has been won over by accused Ramu in order to save him. He has also shown the place of beatings, place of unnatural offence to police officials. He Contd..........
/8/ had also shown blood stain mark available on their bus to the police official. Police official had taken his black colour pant and pink colour shirt.
In cross examination by defence counsel the PW Shamsher has also corroborated the version as stated in the examination in chief while stating that no unnatural act /sodomy was committed on his friend Baldev by any of the accused in his present on that day and three persons had committed sodomy upon him, but out to them two person are present in the court. Their bus was parked there for three four days prior to the incident as repairing work was due. Initially accused Sonu alongwith three four person came inside the bus and gave beating to him and some one was having knife and started beating him. First of all the assailant gave beating to him and caused injury by knife and thereafter caused injury to Baldev and after threatening them , the accused persons went away. Sonu had caused knife injury to him. Since he was given beating, he cannot say about the size of danda. One knife was recovered from accused Deepak by the police. No danda was recovered from any accused in his presence. He cannot say about the time as to when he was given beating by the accused persons.
PW5 Baldev has also put forward for his examination and also corroborated the deposition made by PW Shamsher while deposing that on Contd..........
/9/ 19-20.2.08 in the night he alongwith his friend Shammer were sleeping in their tourist bus no. DL1PA 7801 which was parked in the parking near petrol pump, Timarpur at about 12/12.30 in the night one Sonu alongwith some other boys came and started beating him and Shamsher. A knife blow was given on the hand of Shamsher. They ran away and they were going for informing the police then in the way all those boys met them there. And those persons took them towards 'Jungle' behind the park and both of them were again beaten them. There was a seat in the park, Shamsher was made to lie on that seat and then Sonu forcibly did wrong act /sodomy. One Deepu had caught hold of the mouth of Shamsher and even the act of sodomy was filmed by a mobile phone camera. And thereafter Deepak also committed sodomy with Shamsher. The third person Ramu forcibly put his penis into his mouth and urinated into his mouth. Ramu had also caused three Saria blows on his hand and blood had come out of his wounds and wounds of Shamsher. The accused persons washed away the blood from water brought in a bucket. I and Shamsher were beaten so severely that they were not able to walk so accused persons brought them to the bus again and they were put in the bus and bus was locked from outside. In the morning, he opened the door and came from the bus and called the police. He and Shamsher were Contd..........
/10/ medically examined and the case was registered on the statement of Shamsher. Police had arrested accused Deepak first on his identification vide arrest memo Ex. PW4/F. Thereafter on 16.3.08 he was again joined in the investigation by police and on his instance accused Ramu and Sonu Kataria were arrested vide Ex. PW4/L and PW4/N. Personal search of accused Ramu and Sonu are Ex. PW4/M and PW4/O. Both the accused person also pointed out the place of incident vide Ex. PW4/R. Disclosure statement of accused Ramu Ex. PW4/P and of accused Sonu Ex. PW4/Q recorded.
PW5 Baldev was also cross examined by Ld. APP wherein he denied that he had told police that all three accused persons had committed sodomy with Shamsher. He further stated that he was taken towards another side and he did not know if Ramu had also committed sodomy with Shamsher. He further denied that he is deliberately suppressing truth to save Ramu. He had told police regarding the act of Ramu forcibly putting his penis into his mouth and urinating into his mouth. It is further denied by him that due to lapse of time he have forgotten the details or that he had seen Ramu committing Sodomy with Shamsher.
In cross examination by Ld. Defence counsel PW5 Baldev has deposed that all the three accused persons present in court today had Contd..........
/11/ committed sodomy with Shamsher turn by turn and two accused persons used to stay with him and the third used to do the act of sodomy with Shamsher, he was asked by the two accused persons always to look in the different direction when the third was doing the act of sodomy. The accused persons actually doing sodomy was not seen by him as he was made to see in different direction by the two accused persons turn by turn. He had no previous relations with accused persons nor he had any enmity with them. He was beaten by the accused persons only and his clothes were removed by the accused persons he was not sodomized by any of the accused persons.
The other witnesses is Dr. Rajinder Kumar who examined the Baldev and Shamsher and prepared their MLC. The other witnesses are police official who deposed regarding the investigation and documents prepared during the course of investigation.
After completion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C , wherein accused persons have denied the deposition made by the prosecution witnesses as false and incorrect with the contention that the present case has been planted upon them, they are innocent and have been falsely implicated in this case. They did not wanted to lead any defence evidence.
Contd..........
/12/ I have heard the submission of Ld. APP for the state, Ld. Counsel for the accused persons and also gone through the material placed on record.
Ld. APP has argued that the prosecution examined all the material witnesses to prove the allegation against the accused persons. PW Shamsher have categorically deposed that the accused Sonu and Deepu committed sodomy and accused Ramu urinated in his mouth by putting h is penis. All the three accused persons alongwith their co associates have also mercilessly beaten them with the help of Lathi, Danda, first and knife blow. The injuries on their persons have been shown in the MLC which has been duly proved on record by PW8 Dr. Rajindra Kumar vide MLC Ex. PW8/A and PW8/B. As such all the accused persons are liable to be convicted in accordance with law.
The counsel for the accused persons submitted that the prosecution has utterly failed to prove its case, as the statement of the prosecution evidence are different under section 161 Cr.P.C and when they were examined before this Hon'ble court , which is full of contradictions and the cross examination do not telly with the statement and averments made in the their statement recorded u/s 161 Cr.P.C It is further submitted by Ld. Counsel for accused that only one witnesses as independent witness has been Contd..........
/13/ examined but his statement does not support the prosecution story. The averments made in the cross examination clearly shows that the above said witness is giving false evidence before this Hon'ble court and he has clearly stated that he could not see the above said incident as his face was in the different direction. The prosecution has not produced any witness from thickly populated locality even the other persons who parked their vehicles. It appeared that no witness come forward to give statement as the prosecution was interested to produce only those witnesses who wants to give statement as the taste and choice of the prosecution story. The medical report is also not supporting to the prosecution story. From the version of the witness, it appears that the medical examination of the accused persons was conducted after a period of 20 to 25 days. The medical examination after a sufficient period cannot give any correct opinion and the medical report is also not supporting the prosecution story, in otherwise also which is also not clarify as to who committed the incident.
It is further argued by Ld. Counsel for accused that no mobile has been recovered from any of the accused persons. The police officials also have not recovered any lathies knife etc. from any of the accused persons the injuries of which has been shown in the medical examination it is not opined by the doctor as to which weapons was used in causing the injury.
Contd..........
/14/ Moreover no injury has been shown on the body of the complainant caused by alleged weapon The accused persons have remained in the judicial custody for more then two years. The above said accused persons have already suffered a lot for no fault on their part. It is prayed that in view the above said submission all the accused persons may kindly be acquitted in the interest of justice..
Having heard the submission made by Ld. APP and Ld. Defence counsel and also considered the material on record.
The accused persons are facing trial for the charges u/s 450/324/365/377/342/506/34 IPC. For the purpose to bring home the guilt of the accused persons u/s 450 Cr.P.C which says that " whoever commits house trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a terms not exceeding ten years, and shall also be liable to fine. It provides punishment for house trespass committed with intent to commit an offence punishable with imprisonment . In order to constitute an Contd..........
/15/ offence under this section the prosecution must first establish that an offence of simple house trespass has been committed and then satisfy the court, in the particular case before, it that the house tress pass was committed with the object of committing a further offence punishable with imprisonment. In the deposition made by PW Shamsher and Baldev they have not been stated anywhere that they have been taken away from their house. The bus in question which was parked in the parking or no where the accused persons have been forcibly taken away/ The bus in question has not come in the category of house. The house trespass has been defined in section 442 IPC which stated that " whoever commits criminal trespass by entering into or remaining in any building, tent or vessel, used as a human dwelling or any building used as a place for worship or as a place for the custody of property is said to commit house trespass".
The house trespass can be committed only if one enter into the building. As per the Oxford Dictionary the word " vessel" defined as " 1. a hollow receptacle esp. for liquid. e.g. A cask, cup, pot, bottle, or dish. 2. a ship or boat esp. a large one a a duct or canal etc. holding or conveying blood or other fluid esp. blood vessel. A woody duct carrying or Contd..........
/16/ containing sap etc. or joc. A person regarded as the recipient or exponent of a quality ( a week vessel)".
The building must be a question of degree and circumstances; its ordinary and usual meaning is a block of brick or stone work covered in by a roof. The mere surrounding of an open space of ground by a wall or fence of any kind cannot be deemed to convert the open space itself into a building and trespass thereon does not amount to house trespass. The building used for human dwelling so as to come within the definition of the word ' house trespass'. A school is a building used as a human dwelling under the section as it does not require that the building must be used as a place of permanent residence. The building should be the property of another person. If an owner in charge of a house professes to be an accomplice and invites another to his house to commit an offence a conviction for house trespass is bad in law.
Here in the present case the accused persons entered into the bus by unlawful means. Accused Deepak opened the entrance gate of the bus with the help of knife which entry may as forcibly and unlawfully entry and they have entered into the bus alongwith co accused and other associates also being intimidated as well as gave beating to the complainant and his Contd..........
/17/ associate Baldev. PW1 Shamsher in his deposition has categorically stated that "accused Sonu has caused injuries to him and after some time Sonu alongwith three four associates came near the bus and Sonu opened the folding gate of their bus with the help of knife and entered inside their bus alongwith his three four associates. In the midnight Sonu caused injuries to him and his friend Baldev with dandas and lathis and went away from their bus after extending threats". As such the deposition made by him is also corroborated by PW5 Baldev while stating that in the night on 19/20-2-08 Sonu and other boys stated bearing him and Shamsher. A knife blow was given on the hand of Shamsher. Therefore, ingredients of section 450 IPC is attracted under the facts and circumstances and the deposition of the prosecution witnesses.
As regarding section 324 IPC, this fact has been proved by MLC of the complainant Shamsher and his associate Baldev that both have been medically examined by PW8 Dr. Rajinder, CMO, Aruna Ashif Ali Hospital proved the MLC of Baldev and Shamsher are Ex. PW8/A and B. The nature of injury on the person of PW Baldev were opined as 'grievous' and of PW Shamsher as 'sharp and simple'. Both the victims have also being intimidated on the point of knife and they have also received the danda, lathi and knife blow injuries.
Contd..........
/18/ As per provision of section 324 IPC, it has been brought on record that accused caused all the acts with intention and knowledge that such bodily pain by means of stabbing of cutting etc resulted in deleterious to the person of Shamsher and Baldev and the weapon was used by the accused for causing the injuries which is sharp edged weapon i.e. knife as well as danda and lathi etc. As such the prosecution proved the charges u/s 324/506/34 IPC against the accused persons.
Now, with respect to the charges u/s 365/377/34 IPC , which defines as , whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined and voluntarily caused carnal intercourse against the order of nature with any man, woman or animal....". In case titled as Akbar Ali AIR 1925 Lah 614: (1926) 27 Cri LJ 229 (Lah.) wherein it has been observed that " kidnapping and confining in broad daylight without any secrecy amounts to an offence under section 342 IPC. The essence of an offence under this section is kidnapping."
For the purpose of proving here the guilt of the accused u/s 365 IPC the prosecution must prove that (i) kidnapping by the accused, or abduction by him, (ii) that the accused thereby intended that the person kidnapped or abducted should be kept in wrongful or secret confinement. The accused persons as per prosecution story and deposition of Contd..........
/19/ the prosecution witnesses have dragged the complainant/victim on the point of knife near the main road in jhuggi towards the jungle and kept near the bushes. The jungle where the accused persons have dragged to the complainant/ victim Shamsher and Baldev, is a open place and that place is not covered by any cemented or cloth wall, which was opened space towards road side. The entry of the public persons was not restricted by any means and the place where the victim have been sodomized is not a secret place as no public persons in the way toward the jungle where the offence of sodomy was committed found are not within the dominion or in possession of the accused persons nor same is restricted and secret place. The word 'kidnapping' is defined u/s 363 IPC which states that " whoever kidnaps any person from lawful guardianship. To support a conviction of kidnapping from lawful guardianship under this section, the facts must come within the ambit of section 361 IPC.
In the present case from the prosecution story and deposition of the prosecution witnesses it is no where stated that the place of confinement is a secret one. It was no where mentioned that any one was being hidden from the public at large. The jungle where the both victims has been dragged and committed the offence is a open space and there is thoroughfare, entry of public is not restricted and on one have been restricted by the accused Contd..........
/20/ persons to visit in the said jungle. Therefore, under these circumstances the provision of offence u/s 365 IPC is not attracted in present facts and circumstances.
As regarding the section 377 IPC , PW1 Shamsher in his deposition has stated that ".............after some time Sonu alongwith three four associates came near the bus and Sonu opened the folding gate of their bus with the help of knife and entered inside their bus alongwith his three four associates. In the midnight Sonu caused injuries to him and his friend Baldev with dandas and lathis and went away from their bus after extending threats and also identified accused Sonu. .......On 20.2.2008 when he and his friend Baldev were going to get lodge the report against the accused Sonu and his associates in the way near main road, accused Sonu alongwith his six associates met them and took them in a jungle and confined him near the bushes. He was beaten by accused Sonu and his associates by giving lathi, danda and knife blows. Baldev was also beaten by them with iron pipe and caused fracture on his left arm. Accused Sonu and his associates put off his under garments forcibly and made naked him and his friend Baldev. Thereafter he and Baldev were Contd..........
/21/ taken to nearby park at a distance ahead from truck parking of Timarpur. Accused Sonu did unnatural act/sodomy upon him against his wish and consent. Thereafter two associates of accused Sonu also did Sodomy/unnatural act upon him one by one against his wish and consent...."
PW1 Shamsher in his cross examination by Ld. Defence counsel has further stated that " no unnatural act of sodomy was committed on his friend Baldev by any of the accused in his presence on that day. Three persons had committed sodomy upon him." PW5 Baldev has also stated that " even the act of sodomy was filmed by a mobile phone camera and thereafter Deepak also committed sodomy with Shamsher. The third person Ramu forcibly put his penis into my mouth and urinated into my mouth. " The sodomy as committed by accused persons is also being proved by medical examination by PW8 Dr. Rajinder Kumar who proved the MLC Ex. PW8/B of the complainant Shamsher. The accused persons were also being medically examined and through their MLC Ex. PW9/A and PW9/C and there is nothing to suggest that accused persons examined are not capable to perform sexual intercourse.
Contd..........
/22/ The word Common Intention is a state of mind of an accused which can be inferred objectively from h is conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co accused, it was observed in a case titled as Harjit Singh Vs. State of Punjab 2002 SCC (Cri) 1518 and in another case titled as Gupteshwar Nath Vs. State of Bihar AIR 1986 SC 1649: 1986 Cr.LJ 1242 it was observed that "when several persona surrounded the deceased and beat him to death, common intention of all of them for murder can be inferred.". In another case titled Bhola Singh Vs. State of Punjab 1995 CrLJ 1830 (P&H) (DB) it has been observed that "
The fact that both the accused came to the spot together and after committing the murder left the place together would be sufficient to hold that both of them shared the common intention to commit the murder.
The contention of Ld. Defence Counsel that accused Ramu has not sodomized the victim Shamsher or Baldev and PWs have given similar deposition, hence the ingredients of section 377 IPC is not attracted against the accused Ramu.
Contd..........
/23/ However to this effect u/s 34 IPC defined common intention at the time of committing of alleged offence the accused Ramu was also present and he has also having common intention. 'The corroboration of the testimony of complainant is not essential but the necessity of corroboration as a matter of prudence except where circumstances make it safe to dispense with it must be present to the mind of the court in case u/s 377 IPC. The testimony of the complainant is free from any blemish or infirmity, there is a ring of truth around his statement, he has come out totally unscathed from the test of cross examination, there was no reason why complainant should try to falsely implicate the accused whom he had met for the first time and had not enmity against him, the testimony is fully corroborated by the medical evidence and the promptitude in lodging a first information report eliminated the chances of any falsehood having crept in the prosecution story and and the deposition of complainant have been corroborated by PW Baldev.
As per the FSL report the jacket of victim, stone piece with gauze, underwear of accused Ramu, Sonu Kataria and Deepak have detected with human semen. The blood was also detected on Ex. 1,3,4,6,11,13,14,16,17,18 and 19 and as per the biological report the human blood was also detected on exhibits. In a charge of sodomy stains of Contd..........
/24/ semen constitute important evidence. as observed in a case titled as Devi Das (1928)10 Lah 794.
In case titled as Sardar Ahmad AIR 1914 Lah 565 it has been observed that "In the case of an unnatural offence conviction may be based on the uncorroborated testimony of the victim. It is held that an accused cannot cling to a fossil formula and insist on corroborative evidence, even if take as a whole, the case spoken to by the victim strikes a judicial mind as probable. The courts have emphasized that judicial response to human rights cannot be blunted by legal jugglery."
The nature of the offence committed by the accused required that he must be kept in the environment of an institution of confinement for some period to enable him to ponder and brood over h is perversity and learn how to live in a well organized society.
In (1992) 2 crimes 455 (457) Orissa it has been held that " Act like putting male organ in to victim's mouth which was an initiative act Contd..........
/25/ of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable u/s 377.
in case (1996) 2 Raj LR 762 (764) it has been observed that "
Act of the accused putting his male organ (Penis) in mouth of girls or in th eir hands followed by seminal discharge squarely falls within mischief of section 377.
Where acts alleged against accused fell into two categories 1) Sexual intercourse per Os ( Mouth) and 2) manipulation and movement of penis of accused whilist being held by victim in such a way as to create orifice like thing for making manipulated movement of insertion and withdrawal till ejaculation of semen, both categories of acts would be unnatural carual offenders , as observed in 1992 Cri LJ 1352 (1359).
Accused committing carual intercourse by inseuting his penis into mouth of one girl and discharging semen and thereafter discharging urine in mouth of other girl which is equally carnal- He is liable to be convicted for offence under section 377 qua both girls, as observed in 1993 Cri LJ 1483 (1485): (1993) Crimes 569 (Delhi). The term : Sodomy" means non coital Contd..........
/26/ carnal copulation with a member of the same or opposite sex e.g. Per anus or per os. Thus a man may indulge in sodomy even with his own wife as observed in AIR 1982 Kant 46 (49): (1981) 2 DMC 196 (SB).
Seminal stains on the undergarments of the accused is material and relevant factor to be considered as revealed from the FSL report, medical report complied with scientific evidence, ocular evidence of the complainant and same has been corroborated by Baldev as well as police official lead the guilt of the accused persons within the four corners of the ingredients of u/s 377 IPC.
Therefore, in view of the aforesaid discussion, facts and circumstances the prosecution is succeeded to prove its case against the accused persons beyond all reasonable doubt. Testimony of prosecution witnesses are inspired confidence which are truthful, believable and corroborative with medical and scientific evidence. There is no reason to disbelieve them. Accordingly accused Deepak @ Deepu S/o Dharam Chand, Sonu Kataria S/o Soheb Singh and Ramu S/o Ramdev are hereby convicted for offence punishable u/s 450/324/506/342/377/34 IPC. ANNOUNCED IN THE OPEN COURT TODAY ON 18.03.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 21/1/08
State
Versus
1- Deepak @ Deepu S/o Dharam Chand,
R/o Jhuggi 16/B/155,
Sanjay Basti, Timarpur,
Delhi.
2- Sonu Kataria S/o Soheb Singh,
R/o G-297, Shiv Vihar Road,
Karawal Nagar,
Delhi.
3- Ramu S/o Ramdev,
R/o Jhuggi No. 16/132,
Sanjay Basti, Timarpur,
Delhi.
FIR No. 99/2008
U/S:365/377/342/506/324/ 325/367 IPC
P.S. Timarpur
ORDER ON SENTENCE:
Present: Sh. Mukul Kumar, Additional Public Prosecutor for State.
All the convicts/accused persons from J/C with their counsel Sh. Hari Kishan.
All the accused persons/convicts have been convicted for offence punishable u/s 450/324/506/342/377/34 vide separate detailed judgment dated 18.03.2010.
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/2/ I have heard submission of Ld. APP for State and counsel for accused on the point of sentence and carefully gone through the material on record.
Ld. APP for state argued that the prosecution proved its case against all the accused persons beyond all reasonable doubts. The testimony of victim/complainant Shamsher and Baldev and other material witnesses are trustworthy, corroborated and believable. There is no rebuttal to the deposition of the prosecution witnesses. The victim Shamsher PW-1 categorically stated that ".............after some time Sonu alongwith three four associates came near the bus and Sonu opened the folding gate of their bus with the help of knife and entered inside their bus alongwith his three four associates. In the midnight Sonu caused injuries to him and his friend Baldev with dandas and lathis and went away from their bus after extending threats and also identified accused Sonu. .......On 20.2.2008 when he and his friend Baldev were going to get lodge the report against the accused Sonu and his associates in the way near main road, accused Sonu alongwith his six associates met them and took them in a jungle and confined him near the bushes. He was beaten by accused Sonu and his associates by giving lathi, danda and knife blows. Baldev was Contd..........
/3/ also beaten by them with iron pipe and caused fracture on his left arm. Accused Sonu and his associates put off his under garments forcibly and made naked him and his friend Baldev. Thereafter he and Baldev were taken to nearby park at a distance ahead from truck parking of Timarpur. Accused Sonu did unnatural act/sodomy upon him against his wish and consent. Thereafter two associates of accused Sonu also did Sodomy/unnatural act upon him one by one against his wish and consent...." Accused also gave them beating and threatened them not to tell the incident to any one otherwise they will have to face the dire consequences. Ld. defence counsel only made suggestions that no wrong act has been committed by accused persons and they have been wrongly identified in the court.
It is further submitted that the testimony of the PW1 Shamsher in itself is enough to convict the accused persons. It need not to be corroborated by any other evidence as he is the best witness and he is not likely to exculpate the real offender. This view is also taken by catena of judgment by the Apex court as well as hon'ble Hight Court of Delhi.
It is further contended by the Ld. APP for state that the measurement of punishment in a case of sodomy/unnatural act should not Contd..........
/4/ depend on the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted male and the gravity of the criminal act. Crimes of violence upon male need to be severely dealt with. The socio-economic status, religion, race, cast or creed of the accused or the victim are irrelevant considerations in sentencing policy. The courts must hear the loud cry for justice by society in cases of the heinous crime of unnatural act on innocent helpless person of tender years and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
Ld. defence counsel submitted that the case of the prosecution is tagged with the statement of the PW1 Shamsher recorded u/s 161 Cr.P.C. and deposed before this court which has been corroborated by statement of PW5 Baldev and other circumstantial evidence including the medical evidence. The accused persons are young and having responsibility to feed their family being sole bread earner of their family and if they will be kept behind the bars, it will not only punish them but it would be a punishment to their family members. The Ld. defence counsel further submitted that accused persons have suffered physically and mentally a lot and also remained in J/C for a sufficient period.
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/5/ In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentence are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, cannot be lost sight of and perse require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too Contd..........
/6/ sympathetic view merely on account of lapse of time in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system.
Ld. counsel for accused submitted that accused persons are innocent and falsely implicated in this case and he has nothing to do with the offence. Accused Deepak @ Deepu and Sonu Katarial are in judicial custody since more then 25 months and accused Ramu remain in judicial custody for a period of seven months. They were 23-24 years of of age having clean antecedents and have long life to live. If they remained in J/C, it will ruin their career and would not be able to enjoy the fruit of their young age. Therefore, they may be released to undergone imprisonment.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may Contd..........
/7/ provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate Contd..........
/8/ sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused's lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.
In view of the facts and circumstances of the case, the punishment for the offence u/s 377 IPC is imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Therefore, such sentence should be passed in case as proved by the prosecution, which serve the purpose of law and also to the victim.
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/9/ Apart from offence u/s 377 Prosecution has also proved the offence u/s 450/324/342/506/34 IPC against the accused persons. In case titled as Gossain Missir AIR 1922 Pat 267: it was held that deterrent punishment should not be passed unless there was any marked popular excitement creating or likely to create breaches of the public peace or public tumult or disorder. In the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice.
All the accused have been confined in judicial custody for a sufficient period of time. Accused Deepak and Sonu Kataria has remained in J/c for about two years, one month and 11 days. Accused Ram has also remained in J/C during the trial of case for about 7 months. The setence u/s 377 IPC an offender under this section must be awarded a deterrent sentence and no mercy need to be shown in the matter of sentence. Fact that imprisonment for a lesser term can also be awarded for offence under section 377 would not take it out of category of offence punishable with imprisonment for life and consequently the accused offender cannot be released on probation of good conduct in view of section 6 of Probation of Offenders Act 1958. The act of accused momentary lack of control over Contd..........
/10/ feelings- sufficient social ostracisation and humiliation likely to have been suffered by accused Considering the nature of offence committed by the accused persons , all the accused persons namely Deepak @ Deepu S/o Dharam Chand, Sonu Kataria S/o Soheb Singh and Ramu S/o Ramdev are hereby sentenced to imprisonment for a period of Two Years RI with fine of Rs. 25000/- each, I/D Six Months SI u/s 377/34 IPC.
As regarding offence u/s 450 IPC, the punishment prescribed to the extent of 10 years and fine and prosecution has also proved its case against all the accused beyond all reasonable doubts. The accused persons have been guilty for unnatural offence with the complainant and his associates. Considering the facts and circumstances all the accused persons namely Deepak @ Deepu S/o Dharam Chand, Sonu Kataria S/o Soheb Singh and Ramu S/o Ramdev are hereby sentenced to imprisonment for a period of Two Years RI with fine of Rs. 25000/- each, I/D Six Months SI u/s 450/34 IPC.
In respect of offence 324/342/506/34 IPC, the punishment is prescribed u/s 324 IPC is to the extent of 3 years or fine or both. Therefore under the facts and circumstances all the convicted be awarded a sentence for the period already undergone for the offence punishable u/s 324/342/506/345 IPC in the end of justice. No separate sentence is awarded Contd..........
/11/ for offence u/s 342/506 IPC. The benefit of section 428 Cr.P.C. be awarded to all the convicted. All the sentences shall run concurrently. The period which the convicted have already undergone in J/C be set off from total sentence awarded to the convicted. Copy of this order be given to the convicted free of cost forthwith.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 31.03.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI