Delhi District Court
Be Required For The Proof Of Any Fact. In ... vs . Suresh on 11 July, 2013
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 131/12
P.S. : Aman Vihar
Unique ID No. : 02404R0186712012
State
Vs.
Lal Bahadur S/o late Lal Chander Mata
R/o House No. B-314,
Khub Ram, Prem Nagar-1, Delhi.
Date of institution of case : 13.07.2012
Date of reserving the judgment : 10.07.2013
Date of pronouncement of judgment : 11.07.2013
JUDGMENT
1. S. No. of the Case: 99/2/12 2. Date of Commission of Offence: 13.05.2012 3. Date of institution of the case: 13.07.2012 4. Name of the complainant: K (the name of victim changed) 5. Name of the accused: Lal Bahadur Matta 6. Offence complained or proved: 377/506 IPC 7. Plea of Accused : "Not Guilty" 8. Final Order: Convicted 9. Date of Final Order: 11.07.2013 FIR NO. 131/12 PS Aman Vihar Page 1 of 13 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 13.05.2012 at about 2.00 p.m. at house no. B-314, Khoob Ram Park, Prem Nagar-1, Kirari, Delhi the accused Lal Bahadur Mata committed carnal intercourse against the order of nature with the complainant K (the name of victim changed), aged 13 years and threatened him to kill. Accused was arrested and upon completion of investigation chargesheet was prepared and filed in court for trial.
2. The copies of chargesheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 377/506 was framed against the accused on 24.08.2012 to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined the following witnesses:-
PW 1 Ajay Kumar deposed that on 19.05.2012 in the morning he went to the house of his sister Mrs. Sarla Devi. His sister told his son to bring the pant which was given to the tailor Mata i.e. accused, but K (the name of victim changed) refused to go to the shop of tailor. He further deposed that his sister insisted K (the name of victim changed) to go and asked him why he was not ready to go over there. But, initially K (the name of victim changed) did not reveal anything but when he was compelled to explain then he revealed that tailor Mata had committed bad thing with him. He further deposed that on listening this, he call at 100 number and police officials reached over there and later on FIR NO. 131/12 PS Aman Vihar Page 2 of 13 accused Mata was arrested . Police officials recorded the statement of K (the name of victim changed) Ex. PW 1/A .
PW 2 Sarla Devi deposed that on 19.05.2012 her husband asked her son K (the name of victim changed) to bring his pant which was given to the accused but her son refused to go to his shop. She further deposed that she asked K (the name of victim changed) why he was not ready to go, she found her son nervous and under the influence of fear and after lot of insistence, K (the name of victim changed) disclosed that on 13.05.2012 when he has visited to the shop of accused for sewing a zip in his pant, he had committed bad things (galat kam) with him . She further deposed that her K (the name of victim changed) explained further that accused removed his pant and then committed "galat kam" . He further deposed that her brother visited her house and heard all the things and called at 100 number.
PW 3 K (the name of victim changed) deposed that on 13.05.2012 at about 2.00 p.m. he went to the house of accused for alteration of his three old pants at his residence and had handed over three pants and Rs. 50/- to the accused. He further deposed that thereafter accused asked him to come inside his house and when he tried to get away, accused caught hold of him and removed his pant and underwear. He further deposed that when he raise alarm, accused grappled his mouth and threatened him that if he will shout, accused would kill him. He further deposed that accused tried to insert his penis into his anus. He further deposed that accused did "galat kam" with him by inserting his penis into his anus. Thereafter he came back to his house and did not tell this fact to anyone due to the threatening given by the accused to him. He further deposed that on FIR NO. 131/12 PS Aman Vihar Page 3 of 13 19.05.2012 his father told him to go to accused for getting his pants but he refused to go, then he told the whole incident of 13.05.2012 to his mother, father, mama and his elder brother. He further deposed that thereafter police was called and his statement was recorded by the police Ex. PW 1/A. PW 4 Dr. Shilender deposed that on 19.5.2012, one K (the name of victim changed) aged about 13 years male was brought by SI Dharampal in Sanjay Gandhi Memorial Hospital at about 10:50am with the alleged history of sexual assault. He examined K (the name of victim changed) but nothing material with regard to sexual assault was found in examination, as it was the fifth day of the day of alleged incident. MLC No. 8222 in this regard is Ex. PW 4/A. PW 5 Dr. Binay Kumar deposed that on 19.5.2012, he was posted at SGM Hospital as CMO. On that day, he examined accused Lal Bahadur Mata brought by Ct. Pradeep with alleged history of committing sodomy on 13.5.2012. After examination he opined that accised was fit for sexual intercourse. He also seized undergarment of accused however, accused disclosed that accused had already changed his clothes after committing of offence. He prepared MLC No. 8116 in this regard Ex. PW 5/A .
PW 6 Dr. Manoj Dhingra deposed that the as per MLC bearing no. 8222 of K (the name of victim changed) he opined that no external injury was present and advised anal swab with seal. He further deposed that thereafter the sample seal was given to the IO.
PW 7 HC Ajeet Singh on 19.05.2012, he was posted in PS Aman Vihar as FIR NO. 131/12 PS Aman Vihar Page 4 of 13 duty officer with duty hours from 8.00 a.m. to 4.00 p.m. and on that day at about 12.05 p.m, Ct.Pardeep came and handed over him the rukka sent by SI Dharampal. On the basis of the same, he recorded computerized FIR in the present case, copy of which is Ex.PW7/A . The endorsement on the rukka is Ex.PW7/B. After registration of FIR, he handed over one copy of FIR and original rukka to above Ct. Pardeep.
PW 8 Ct. Karamvir deposed that on 28.05.2012 he was posted at PS Aman Vihar. On that day on the instructions of IO he received one sealed pullanda for depositing the same to FSL, Rohini and after depositing the same at FSL he collected receipt and handed over the same to MHC(M) PW 9 Ct. Pardeep deposed that on 19.05.2012 he was posted at PS Aman Vihar. On that day on receiving DD no. 17 A he alongwith IO SI Dharampal reached at Khoob Ram Park, Prem Nagar, where K (the name of victim changed) alongwith his family members met us and gave his statement to the IO . After that they went to SGM Hospital alongwith victim K (the name of victim changed) for the medical examination and after the medical examination doctor handed over them sample pullandas which were seized by the IO vide memo Ex. PW 9/A. He further deposed that thereafter IO prepared the rukka and got the FIR registered through him. After that IO prepared the site plan on the instance of complainant K (the name of victim changed). After that they reached at the house of accused Lal Bahadur Mata and arrested him vide arrest memo Ex. PW 9/B on the instance of victim K (the name of victim changed). His personal search was also conducted vide personal search memo Ex. PW 9/C. One mobile phone , 200 Rs. Cash and one key ring and one idol of lord Ganesh was FIR NO. 131/12 PS Aman Vihar Page 5 of 13 recovered on his personal search. After that medical examination of accused Lal Bahadur Mata was conducted and doctor handed over them some pullanda and sample seal which were seized vide memo Ex. PW 9/D . After that accused was taken to lock up and IO recorded his statement.
PW 10 SI Dharampal Malik deposed that on 19.05.2012 on receiving DD NO. 17 A, Ex. PW 10/X , he alongwith Ct. Pardeep Kumar reached at A-104, Khoop Ram Park , Prem Nagar-1, Delhi where victim K (the name of victim changed) alongwith his mama Ajay Kumar and his mother Sarla Devi met them where he recorded statement of K (the name of victim changed), same is already Ex. PW 1/A, bears his signatures at point C. After that medical examination of victim K (the name of victim changed) got conducted in SGM Hospital vide MLC NO. 8222, Ex. PW 4/A. After that doctor handed over him sealed samples of blood and anal swab of the victim which he seized vide memo already Ex. PW 9/A. He further deposed that thereafter he prepared rukka and got the FIR registered through Ct. Pardeep. Rukka is Ex. PW 10/A. After that alongwith the victim they reached at the house no. B-314, Khoop Ram Park and prepared the site plan on instance of victim K (the name of victim changed). Site plan is Ex. PW 10/B. After that he recorded the statement of witnesses. At about 5.30 p.m. on the same day accused Lal Bahadur Mata was arrested in the presence of victim K (the name of victim changed). He prepared the arrest memo, same is already Ex. PW 9/B. His personal search was also conducted vide personal search memo already Ex. PW 9/C. In his personal search Rs. 200/-, one mobile phone of tata indicom, one keyring and one mala was recovered. After that medical examination of the accused was got conducted vide MLC No. PW 5/A. Doctors FIR NO. 131/12 PS Aman Vihar Page 6 of 13 handed over two sealed pullanda with one sample seal to Ct. Pardeep who gave it to him and he seized the same vide memo Ex. PW 9/D. Those pullandas were deposited in the malkhana and accused was sent to lock up. He recorded the statement of Ct. Pardeep . After completion of investigation he prepared the charge sheet and submited before the court. Later on FSL result was collected and also submitted before the Court and FSL result is Ex. 10/Y. Envelopes produced by the MHC(M) were Ex. P-1 to P-5.
5. Thereafter accused examined U/s 313 Cr.PC on 14.05.2013. Accused claimed innocence and false implication. He wished not to lead defence evidence.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by the ld. Legal aid counsel Ms. Sunita Bhatia.
7. In the present case, it is the case of the prosecution that the accused Lal Bahadur Mata committed carnal intercourse against order of the nature with complainant K (the name of victim changed) and also threatened to kill him.
8. The section 377/506 IPC reads as follows:
377. Unnatural Offences.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and FIR NO. 131/12 PS Aman Vihar Page 7 of 13 shall also be liable to fine.
Section 506. Punishment for criminal intimidation Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
9. To substantiate its case, the prosecution was under the obligation to prove the following ingredients of the offence:
-that the accused committed carnal intercourse with the complainant K (the name of victim changed);
-that the accused criminally intimidated the complainant K (the name of victim changed) to kill if he would tell the facts to any other person.
10. The section 377 IPC was declared unconstitutional insofar it criminalises consensual sexual acts of adults in private vide the judgment Naz Foundation vs Government Of NCT of Delhi, decided on 2 July, 2009 by the Hon'ble High FIR NO. 131/12 PS Aman Vihar Page 8 of 13 Court of Delhi in WP(C) No.7455/2001. The relevant para is reproduced below:
"132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. We allow the writ petition in the above terms."
11. Thus, the legal position that stands today is that the unnatural sex between adults should be non-consensual to attract the culpability under section 377 IPC. But in the present case the victim is minor, thus consensus is of no relevance in the present case. The ratio of Naz foundation case (supra) has no applicability in the present case. The alleged unnatural sex with the minor falls with the four corner of offence of sodomy.
12. In the present case the prosecution examined 10 witnesses to prove its case against the accused. The main star witness in the present case is the complainant K (the name of victim changed) who is also the victim in the present case. PW 3 K (the name of victim changed) is aged about 13 years. Being minor, the statement of PW 3 was recorded in the chamber in the presence FIR NO. 131/12 PS Aman Vihar Page 9 of 13 of ld. APP , legal aid Counsel and the mother of the complainant witness. The atmosphere of the chamber was made informal and all the persons were informally attached. The statement of PW 3 was recorded after making the witness comfortable and ensuring that the witness is not under coercion, pressure and threat. PW 3 K (the name of victim changed) deposed that on 13.05.2012 at about 2.00 p.m. he went to the shop of the accused who is a tailor for alteration of three old pants. He handed over the pants and Rs. 50/- to the tailor. Accused asked him to come inside the house . The accused caught hold of him, removed his pant and undergarments. When he tried to raise alarm, his mouth was grappled and he was threatened that if he shout, accused will kill him. PW 3 categorically deposed that the accused did "galat kam" by inserting his penis into the anus of the witness. Thereafter he came back to his house and did not disclose the facts to anyone due to the threatening given by the accused that he would kill if he would tell the facts to anyone. On 19.05.2012 his father asked him to go to the tailor for collecting the pants but he refused to go. On being asked, he told the whole incident of 13.05.2012 to his mother, father , maternal uncle and elder brother. Police was called by calling at 100 number and statement of PW 3 was recorded by the police which is EX. PW 1/A. The accused was called inside the chamber and after looking at the accused, PW 3 stated that he is Lal Bahadur Mata who has committed "galat kam" with him. PW 3 was cross-examined by the Legal Aid Counsel for the accused. There are no material contradictions or inconsistencies found in the statement of PW 3. The ld. Legal aid counsel submitted during the cross-examination that there are omissions in the original statement Ex. PW 1/A and the witness PW 3 has improved over his version in the testimony given in Court. The ld. Legal aid counsel also submitted that in the FIR NO. 131/12 PS Aman Vihar Page 10 of 13 original statement Ex. PW 1/A , the witness stated that he was sent to the tailor by his mother and in the testimony before the Court, the witness has stated that he was sent by his father. The facts pointed out by the ld. Legal aid counsel does not appear material which could go to the roots of the case. The testimony of the witness PW 3 has remained unblemished and has passed the stringent test of cross-examination. The witness is worthy of credit and his credit worthiness has not been impeached by the cross-examination by the defence. It is well settled law that every witness is competent if he is able to understand the questions put to him and is able to give rational answers to them notwithstanding the age of the witness. The only thing that is to be considered is that the minor witness is not tutored as they are easy prey to it. However, in the present case there is no reason as to why the witnesses would falsely implicate the accused in the present case. No previous enmity or grudge has been brought on record which could suggest otherwise. The ld. Legal aid counsel has given suggestion to the witness PW 3 that the present case has been filed by the complainant at the instance of his mother to extort money. The accused is apparently not a rich person and his case is being defended by legal aid counsel which is also suggestive of the fact that the accused is not able to afford a private counsel. Thus, the suggestion of the ld. Legal aid counsel holds no water and his defence is wholly discarded.
13. The statement given by the witness PW 3 in the Court is duly corroborated by his statement Ex. PW 1/A given to the police on the basis of which the FIR was registered. The statement of PW 3 also find corroboration from the statements of PW 1 Ajay Kumar and PW 2 Ms. Sarla Devi to the extent that on 19.05.2012 the complainant K (the name of victim changed) was asked to the FIR NO. 131/12 PS Aman Vihar Page 11 of 13 tailor (accused) to collect the pants and he refused to go to him and on enquiry he revealed the incident of 13.05.2012 to them.
14. In the present case the victim was medically examined on 19.05.2012 but nothing material could be found with respect to the sexual assault as the incident happened on 13.05.2012 and the victim was examined on the fifth day. It is understandable that the victim was 13 years of age on the date of commission of offence and was under intimidation by the accused due to which he did not disclose the incident to his parents on the same day. Further, the medical examination of the accused suggest that he was fit for sexual intercourse and there is nothing to suggest that he was not capable of performing the sexual act.
15. It is well settled law that it is not the quantity but it is the quality of the testimony that weighs upon the consideration of the Court. Section 134 of the Evidence Act stipulates that no particular number of witnesses shall in any case be required for the proof of any fact. In State of Maharashtra Vs. Suresh Nivsutti, 1997 2 Crimes 257 (Bom), it was observed that the time honoured rule of appreciating evidence is that it has to be weighed and not counted. Thus the Law which has developed over the time is that the testimony of a single witness is sufficient to base the conviction of the accused, if it is found to be cogent, reliable and consistent. In the present case, the main witness is the victim himself who is the natural witness of the incident. The testimony of the victim is completely found reliable and sufficient for proving the commission of offence by the accused. There is nothing on record rule out the facts depose by the victim.
16. This court is of the view that the prosecution has proved the case successfully against the accused beyond reasonable doubts. The accused could not FIR NO. 131/12 PS Aman Vihar Page 12 of 13 escape his nemesis. The accused is hereby convicted for the offence u/sec. 337/506 IPC.
17. List the matter for hearing quantum of sentence.
Announced in open court (SUSHIL ANUJ TYAGI)
11th day of July 2013 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR NO. 131/12 PS Aman Vihar Page 13 of 13