Delhi District Court
Unknown vs State Of on 12 March, 2020
IN THE COURT OF SH. PRITU RAJ
METROPOLITAN MAGISTRATE01
ROHINI COURTS, DELHI.
TITLE: : State v Vicky & Ors.
FIR NO. : 656/2005
P.S. : Sultanpuri
RNO. : 528597/2016
Unique ID No. : 02404R1326482005
Date of commission of offence : 25042005
Name of Informant/complainant : Kamlesh
Name of accused : Vicky S/o Sh. Ramesh
: Nitin S/o Sh. Shashi
: Pappu S/o Main Singh
Offence/s complained of : 377/506/34 IPC
Cognizance under section/s : 377/506/34 IPC
Charges framed under section/s : 377/506/34 IPC
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 03032020
Date of pronouncement : 12032020
Final Order : Guilty
For the Prosecution : Ld. APP
For the Defence : Sh. Gopal Sharma, Ld. LAC
Present : Pritu Raj
M.M. 01,
Rohini Courts, Delhi.
FIR No. 656/2005 State v Vicky & Others Page No. 1 of 20
JUDGEMENT
1. The accused persons are facing trial for offences u/s 377/506/34 IPC.
2. Stated succinctly, the facts necessary for the determination of the case are on 25042005, the accused persons i.e. Vicky, Nitin and Pappu, called the victim to a nearby park and, in furtherance of their common intention, had carnal intercourse against the order of nature with him. The victim was aged about 11 years at the time when the occurrence took place.
3. On the written application of the informant, Sultanpuri P.S. registered in relation to the above incident as FIR no. 656/05 on 26042005 and, after investigation, submitted the charge sheet on 26062005 against the aforementioned accused persons u/s 377, 506/34 I.P.C. Cognisance was taken vide. order dated 20 092005.
4. Charges u/s 377/506/34 I.P.C were framed and read over to all the accused, in Hindi, on 21012006 to which they denied the incident and claimed to be tried.
FIR No. 656/2005 State v Vicky & Others Page No. 2 of 20
5. The prosecution, in order to prove the case beyond all reasonable doubt, examined six witnesses in support of its case during the course of trial. The victim and his mother were examined as PW3 and PW4 respectively.
6. PW3 Smt. Kamlesh, mother of the victim deposed that on 25.04.2005, at about 04:00 pm, her son went to the Park P4, for playing. She further deposed that when he came back he was very upset and frightened and when she asked about his condition, after taking him in confidence, he disclosed that he had pain in his stomach and in his anal part. She further deposed that after further inquiry, her son Rohit disclosed that three persons namely Pappu, Vikcy and Nitin whom he knew, asked him to go in the park and play. She further deposed that they further asked him to lie on stomach and then one by one put the finger in the anus of her son. She further deposed that they also threatened her son not to disclose this to anybody else to face the consequences of death. She further deposed that thereafter, she informed the police, they came to the spot and took her son for medical examination. She further deposed that police recorded his complaint Ex.PW3/A.
7. PW4 Rohit, after being asked certain questions so as to ensure the capability of the witness/ child to understand the question and to give rational answers, deposed that on 25.04.2005, at about 04:00 am, he went to P 4 Park to play. He further deposed that while playing at about 06:00 pm, three persons namely Pappu, Vicky FIR No. 656/2005 State v Vicky & Others Page No. 3 of 20 and Nitin met him who were his neighbours. He further deposed that Pappu asked him to come in the corner of the park and to lie down on the stomach, thereafter, all the three persons put fingers in his anus one by one. He further deposed that despite his resistance, they did the said act. He further deposed that after this, they threatened him not to disclose the incident or to face the consequences of death. He further deposed that he came back to his home and was having pain in his stomach and anus. He further deposed that on seeing him, his mother asked about what happened, then he disclosed the incident to his mother. He further deposed that her mother informed the police and police took him to the hospital for medical examination. He further deposed that police recorded his statement Ex.PW4/A. He further deposed that police took his underwear. He further deposed that he showed the place of occurrence to the police and also prepared the site plan at his instance. He further deposed that police recorded his statement. Further the case property was correctly identified by the witness when the same was produced by MHC(M) during his testimony.
8. Evidence on behalf of the prosecution was closed, after allowing an application on behalf of accused persons for recalling and reexamination of witnesses produced on behalf of the prosecution, vide order dated 20072019 and the matter was fixed for final arguments. The accused persons had already been duly examined under Section 313 Cr.P.C. on 10052011 wherein they chose not to lead DE. The matter was fixed for Judgement vide order dated 03032020.
FIR No. 656/2005 State v Vicky & Others Page No. 4 of 20
APPRECIATION OF EVIDENCE
9. Before embarking on to determine upon the innocence or guilt of the accused, it would be prudent to reproduce s. 377 IPC.
377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.
Explanation.--Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
10. The essential ingredient which is needed to successfully bring home a prosecution under section 377 IPC is that the accused has had carnal intercourse against the order of nature with the victim, without his consent.
11. The term "carnal intercourse against the order of nature" has not been defined in the Code. The term, in itself, is vague and attempts have been made over time to define it. The law as to the meaning of the term 'carnal intercourse against the order of nature' can be bifurcated into two categories firstly, the preCriminal Law (Amendment) Act, 2013 and the post Criminal Law Amendment Act, 2013.
FIR No. 656/2005 State v Vicky & Others Page No. 5 of 20
12. The law in regard to section 377 IPC prior to the 2013 amendment was settled to the effect that a clear distinction was made between the actus reus of section 375 and section 377. While section 375 IPC used the term 'sexual intercourse' as distinguished from the use of the term 'carnal intercourse agains the order of nature' in section 377. Carnal intercourse was deemed to include all those nonprocreative sexual acts, where an orifice of one person envelops a "visiting member" of the other, constituted unnatural sex. Both penooral and penoanal penetration, therefore, met the requirements of this definition. The law in this regard was duly crystallized in the decision of Apex Court in Sakshi v. Union of India where it was held, The wide definition which the petitioner wants to be given to "rape" as defined in Section 375 so that the same may become an offence punishable under Section 376 IPC has neither been considered nor accepted by any Court in India so far.
Prosecution of an accused for an offence under Section 376 IPC on radically enlarged meaning of Section 375 IPC as suggested by the petitioner may violate the guarantee enshrined in Article 20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
13. The state of law after the Amendment Act of 2013 is that certain actions involving a heterosexual couple, whether committed with or without consent, were removed from the actus reus of s. 377 IPC and were added to s. 375 IPC. The net FIR No. 656/2005 State v Vicky & Others Page No. 6 of 20 result of the amendment of 2013 is that sections 375 and 377 are not watertight categories; the former criminalises nonconsensual maleonfemale sexual intercourse and carnal intercourse ("sexual acts"), the latter covers all remaining forms of non consensual carnal intercourse. This is further accentuated by the decision of Apex Court in Navtej Singh Johar v. Union of India (2018 SC) wherein it was held, "The provisions of Section 377 will continue to govern nonconsensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality." Hence, what section 377 really seeks to address is nonconsensual carnal intercourse.
14. Having established the meaning of the term 'carnal intercourse' and the state of law with regard to nonconsensual carnal acts, this Court will now determine whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt? The case of the prosecution is that the victim was sexually assaulted by the victim by asking him to lie on down on the stomach of Accused Pappu and the subsequent putting of finger in the anus of the victim by all three accused persons.
15. In order to prove its prosecution, the victim 'X' was examined as PW4. The victim was asked questions in order to determine his capacity of understanding and whether he could give rational answers to them. On being satisfied of his capability, he was allowed to depose before this Court. The said child, while deposing in his FIR No. 656/2005 State v Vicky & Others Page No. 7 of 20 examinationinchief has stated that he was sexually assaulted by all three accused persons on being lured by them to a corner of the park where he was asked by accused pappu to lie down on his stomach. He further deposed that all three accused persons put their fingers in his anus despite his resistance and continued with the said act.
16. At the trial, oral testimony of P.W. 4 is the direct legal evidence about the incident besides evidence of his mother P.W. 3. He deposed in unequivocal term that he was sexually assaulted by all three accused persons on being lured by them to a corner of the park where he was asked by accused Pappu to lie down on his(Victim's) stomach. He further deposed that all three accused persons put their fingers in his anus despite his resistance and continued with the said act.
17. This fact has been well corroborated by the other prosecution witnesses. The mother of the victim was examined by the prosecution who stated that when her son came back after playing, he told her that the three accused Nitin, Pappu and Vicky had asked him to lie down on his stomach and then put fingers in his anus.
18. Three objections have been raised by the Learned Counsel for the accused against the testimony of the victim - firstly, he was a child witness at the time when he deposed, secondly, the medical examination of the victim does not show any FIR No. 656/2005 State v Vicky & Others Page No. 8 of 20 injuries and thirdly, he has not supported the case of the prosecution in his cross examination. This Court shall examine the evidence on record with regard to the objections raised by the Ld. Counsel for the accused.
19. The first objection in regard to the degree of reliance which can be placed on the testimony of a child witness. Section 118 Evidence Act, 1872 states that, "All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."
20. In the present case, the witness PW4, prior to him being examinedinchief, was asked certain question like his name, his age, his reason for coming to the Court etc. In order to determine his capacity to rationally answer the questions put to him buring the course of recording his testimony. The said witness answered the questions so put to him rationally and he was declared to be a competent witness.
21. Nothing has come on record to show that the witness was not so disposed to depose rationally and this Court is of the considered opinion that the said witness is a competent witness.
FIR No. 656/2005 State v Vicky & Others Page No. 9 of 20
22. Furthermore, the Hon'ble Apex Court in Suryanarayana Vs. State of Karnataka (2000 SC) has held:
"Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
23. Therefore, the deposition of PW4 during his examinationinchief is the testimony of a competent witness. While holding so, this Court is aware of the fact that the testimony of a witness has to be considered in its entirety and can be read in evidence after the crossexamination of the opposite party. This brings us to the second contention raised by the defence that PW4 has not supported the case of the prosecution in his crossexamination.
24. It has been vehemently argued by the Ld. Counsel for the accused that the victim, during his crossexamination dated 20072017, has stated that he cannot say what act was committed by the accused persons with him and therefore his testimony cannot be relied upon. He ahs also drawn the attention of the Court towards the fact FIR No. 656/2005 State v Vicky & Others Page No. 10 of 20 that the said witness, on being crossexamined by the LD. APP for the state, stated that the statement given by him on the later date was true.
25. The law in regard to a hostile witness is well settled in India. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. In certain cases, where the witness even if turns hostile and is declared under section 154 as a hostile witness, the testimony will not be effaced from the record altogether, simply because the witness is hostile. The court will look into the testimony, if it could be corroborated with any other facts or reliable evidence on record, for the truth to prevail in a matter submitted. Reliance in this regard is placed on Krishan Chander v. State of Delhi. (AIR 2016 SC 298)
26. In the present case, the victim, after being assaulted by the accused persons, returned home and told the entire story to his mother. Her mother has come in Court and deposed as a witness while reiterating the case of the prosecution and has corroborated the statement made by the victim in his examinationinchief. Since, the victim was duly examined by the Court in order to determine his capability to answer the answer the questions put to him, the statement made by the said witness in his examinationinchief cannot be said to be the product of any imagination or FIR No. 656/2005 State v Vicky & Others Page No. 11 of 20 concoction. The facts deposed by him is in consonance with the version recorded by the police authorities which was made on the complaint made by his mother. Such complaint was made by her on being apprised of the facts stated to her by the victim.
27. Moreover, the statement made by the victim in his crossexamination does not deny the incident in it's totality. It would be prudent to reproduce the question as well as the answer stated by the victim in his crossexamination dated 20072018 :
Q. "I put it to you that the accused persons had not done any wrong thing (galat kaam) with you?
A. "I was very small at the relevant time therefore, I cannot say what act was committed by the accused persons with me."
28. A perusal of the above statement makes it clear that the victim has stated that he cannot answer about the nature of act committed by the accused persons with him. The statement made does not in any way state that no incident of wrong act had occurred with him. He has gone on to deny the suggestion by Ld. Counsel of the accused that he was deposing falsely or that he was falsely implicating the accused persons.
29. Moreover, the Hon'ble Apex Court in Hemudan Nanbha Gadhvi v. State of Gujarat, 2018 SCC OnLine SC 1688 placing reliance on State v. Sanjeev Nanda, FIR No. 656/2005 State v Vicky & Others Page No. 12 of 20 2012 (8) SCC 450, stated that the mere fact of prosecutrix turning hostile is not relevant, and it also does not efface the evidence with regard to the sexual assault upon her and the identification of the appellant as the perpetrator.
"Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses turn hostile."
Therefore, the second contention raised on behalf of the accused is rejected as being devoid of any merit.
30. The third objection raised by the Ld. Counsel for the accused is that the MLC of the victim shows no external injuries around the anal verge and therefore the occurrence of the crime is not proved. This Court is not inclined to agree with the assessment/submission made by the Ld. Counsel for the accused persons.
31. The law in regard to the evidentiary value of medical/expert witness is no longer res integra. It has been settled in a plethora of cases that in cases where there appears to be a difference of opinion between an expert and eyewitness, the version of the eyewitness ought to be preferred on decision of Hon'ble Apex Court in case of State of U.P. vs Harban 1998 (3) JT 443 : (1998) 6 SCC 50, where it was observed as follows:
"In a conflict between the eyewitness account and medical evidence, the testimony of the eyewitness has to be preferred unless the medical evidence is so conclusive as to rule out even the possibility of truth in the eyewitness version."
FIR No. 656/2005 State v Vicky & Others Page No. 13 of 20 Furthermore, the absence of any injuries upon the person of the victim or medical examination of the victim does not weaken the case of the prosecution as the law in this regard is squarely covered by the decision of Apex Court in Sk. Zakir v. State of Bihar, (1983) 4 SCC 10 wherein it was held, "The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved.
In this situation the nonproduction of a medical report would not be of much consequence if the other evidence on record is believable."
32. At the peril of repetition, this Court is of the opinion that merely the victim has resiled from his previous statement as to the nature of act committed with him by the accused persons, his earlier testimony cannot be effaced from record for the purposes of trial due to the nonapplicability of the principle of 'falsus in uno, falsus omnibus' in India and particularly in view of the fact that the deposition so made earlier by the victim has be corroborated by the testimony of his mother. The testimony of a witness who has failed to support the case of the prosecution has to be taken for what its worth.
FIR No. 656/2005 State v Vicky & Others Page No. 14 of 20
33. In the present case, the victim is an eyewitness to the incident and therefore his testimony must be accorded the greatest evidentiary value. Furthermore, considering the nature of act in question, the statement of the medical expert cannot be taken to be indicative of the fact that the absence of any external injuries would necessarily imply the absence of any assault of the nature described by him. The third contention raised on behalf of the accused is therefore rejected as being devoid of merit.
34. At this stage it would be prudent to state that while the victim and his mother had clearly deposed about the date and time of occurrence of the incident while they were examinedinchief, they, while being crossexamined, had stated that they do not recall the date of incident. In this regard, it is amply clear from the case record that PW3 was examinedinchief on 04022006 whereas she was crossexamined on 12122012. there has been a lapse of, therefore, six years between her examination and crossexamination. Moreover, the victim was examined as PW 4 on 04022006 whereas he was crossexamined on 20072018 i.e. after more than 12 years. These contradictions can be explained by natural occurrence of loss of memory due to lapse of time. Therefore, the failure of PW3 and PW4 to recant the dates of occurrence in their crossexamination, after 6 and 12 years respectively, would not be fatal for the case of the prosecution.
FIR No. 656/2005 State v Vicky & Others Page No. 15 of 20 Determination qua section 506 IPC
35. Before embarking to determine whether the prosecution has been able to successfully prove the commission of offence under section 506 IPC against the accused persons, it would be appropriate to reproduce the said section.
503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
The law in regard to criminal intimidation and the essentials required to be proved has been succinctly explained by the Hon'ble High Court of Delhi in M.T. Kom v. State of NCT of Delhi & Ors. (Crl. M. C. 670/2013 & Crl. M. A. No. 2185/2013) where it was observed as follows:
"Therefore, intention must be to cause alarm to the victim and whether he is alarmed or not is really of no consequence. But material has to be brought on record to show that intention was to cause alarm to that person. Here expression of any words without any intention to cause alarm would not be sufficient to bring in application of Section 506, IPC. The gist of the offence is the effect which the threat is intended to have upon mind of person threatened. It is clear that before it can have effect upon FIR No. 656/2005 State v Vicky & Others Page No. 16 of 20 his mind it must be either made to him by the person threatening or communicated to him in some way. The section has undergone a complete transformation since its first draft which, after enumerating certain offences such as murder, hurt, mischief, house breaking, unnatural offence and rape, made the offence inter alia, depend upon the causing of distress or terror to the person intimidated. (Clause 482). The word "distress" was naturally objected to, though the Law Commission defended its retention. (2nd Report, Section 417). The original clause was apparently taken from Russel's Work on Crimes and it was both disjointed and incomplete. The present section is practically new, and the substitute of the word "alarm" for distress and terror is intended to confine the offence only to cases where the effect thereof is to cause more pain than is covered by those words. The anxiety and mental anguish caused by an injury threatened may often be as or even greater than the actual injury. Lord Ellenborough said "To make it indictable, the threat must be of such a nature as is calculated to overcome a firm and prudent man...The Law distinguishes between threats of actual violence against the person, or such other threats as a man of common firmness cannot stand against and other sorts of threats". Intention is a mental condition which has to be gathered from the circumstances of the case. The threat must be intended to cause alarm from which it follows that, ordinarily, it would be sufficient for that purpose. The degree of such alarm may vary in different cases, but the essential matter is that it is of a nature and extent to unsettle the mind of the person on whom it operates and take away from his acts that element of free voluntary action which alone constitutes consent. The case where the threat produces an alarm is comparatively a simple one, for all that has then to be proved is that threat was given and that the alarm was due to the threat; but where the threat has not that effect, it involves a question whether it was sufficient to overcome a man of ordinary nerves. The Court may hold it to be an empty boast, too insignificant to call for penal visitation of Section 506. "Intimidate" according to Webster's Dictionary means "(1) to make timid, make afraid, overawe; (2) force or deter with threats or violence, cow". Threat referred to in the section must be a threat communicated or uttered with intention of its being communicated to the person threatened for the purpose of influencing his mind. Question whether threat amounts to a criminal intimidation or not does not depend on norms of individual threatened if it is such a threat as may overcome ordinary free will of a man of common firmness. "Threat" is derived from AngloSaxan word "threoton to lire", (harass). It is the declaration of an intention to inflict punishment, loss or pain on another, "injury" is defined in Section 44. It involves doing of an illegal act. If it is made with intention mentioned in the section, it is an offence. Whether threat was given with intention to cause alarm to the person threatened has to be established by evidence to be brought on record. Material in that regard is totally lacking in the case at hand. Though learned JMFC has erroneously held that the complainant having not got terrified the section FIR No. 656/2005 State v Vicky & Others Page No. 17 of 20 has no application, yet he is right in his conclusion that no evidence was there to show that the accused person intended to cause alarm to the complainant."
36. The primary ingredient which ought to be proved in order to successfully bring home a prosecution under section 506 IPC is that there must be an intention on part of the offender to cause alarm to the victim. As enunciated above, whether the victim gets alarmed or not is of no consequence.
37. Intention of a person has to be gathered from the conduct of a person. In the present case, the victim (examined as PW4) has categorically stated that the accused persons had threatened the victim not to disclose the incident to anyone or else face the consequence of death. The same has been reiterated by the mother of the victim who has stated that accused persons had threatened the victim with death in case he disclosed the incident to anyone.
38. These two witnesses were duly crossexamined by the accused and nothing has come in their crossexamination to impeach their credibility with regard to the statement made by them with regard to the threat of death extended by the accused persons to the victim. The examinationinchief of PW 3 and PW4 make it amply clear that the accused persons had threatened the victim with death in case he divulged the incident to anyone and thereby caused alarm to the victim. This Court is of the considered opinion that the acts of the offenders of extending death threats to FIR No. 656/2005 State v Vicky & Others Page No. 18 of 20 the victim shows the intention on part of the accused persons to cause alarm of grave consequences to the victim and satisfies the mensrea required to be established by s. 506 IPC.
39. The prosecution has, therefore, been able to prove it's case, beyond all reasonable doubt, against the accused persons with regard to the charges under s. 506 IPC.
Proof qua common intention of accused persons
40. The accused persons have been charged for having committed the offences for which they have been charged with a common intention to commit the said offence. Intention of a person means the desire to produce a wanton act. This desire of persons has to be attributed from the conduct of the person. Similarly, in order to attribute common intention on the accused persons, the intention of such persons must be shared to cause a particular act. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them In the present case, the common intention of the accused persons is proved in terms of the testimony of the victim who had stated in his examinationinchief that all accused persons met him and asked the victim to come to the corner of the park. Therefore, the community of action on part of all the accused persons is proved.
FIR No. 656/2005 State v Vicky & Others Page No. 19 of 20 Further, ss discussed above, the testimony of the victim can still be relied upon even if he has turned hostile. The version of events stated in the testimony of the victim adequately attribute common intention of committing the crime in question to the accused persons.
41. In view of above discussion, this Court is of the considered opinion that the prosecution has been able to prove it's case against the accused persons u/s 377 and 506 /34 beyond all reasonable doubt.
42. The accused persons are convicted of the offences u/s 377/506/34 IPC.
43. Copy of judgement be given free of cost to the convicts.
Announced in open court Pritu Raj
on 12th March, 2020. Metropolitan Magistrate01
Rohini Courts, Delhi.
FIR No. 656/2005 State v Vicky & Others Page No. 20 of 20