Delhi District Court
St. vs . Md. Sahid on 22 July, 2011
Fir no. 248/00 22.07.11 1/11
IN THE COURT OF MS. KIRAN GUPTA
METROPOLITAN MAGISTRATE :MAHILA COURT: DELHI
FIR NO. 248/00
PS Kamla Market
St. Vs. Md. Sahid
u/s 354/506/377 IPC
JUDGEMENT :
1. Sl. No. of the Case : 346/02
2. Date of Commission of Offence : 21.06.00
3. Name & Add. Of the Complainant : Nagina Begum
4. Name & Add. Of the Accused : Md. Shahid
s/o Rafiquddin
R/o 8278, Ahata Hajjan
Be, Rodgaron, Delhi 6
5. Offence complained of : U/S 354/506/377 IPC
6. Plea of the Accused : Pleaded Not Guilty
7. Final Order : Convicted
8. Date of Order : 22.07.11.
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. Brief facts of the case are that the accused on 21.06.00 at about 3 pm near gali meer madari, Kamla market took the complainant to the Fir no. 248/00 22.07.11 2/11 corner and forced her to inhale/drink his urine. He further kissed the victim who was around 6 years of age at that time and further criminally intimidated her to kill her in case she raised the alarm or disclosed about the said incident to any one else.
2. Primafacie, case having been made out, charge for offence U/s 354/506 IPC was framed against the accused. Thereafter, amended charge was framed by Ld. Predecessor u/s 354/506/377 IPC against the accused on 30.06.08 to which, the accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined six witnesses which are as follows : PW1 is Smt. Nagina Begum who is the aunty/mausi of the victim. PW2 Salim Khan is the father of the victim. PW3 SI Ved Prakash is the IO. PW4 SI Babu Ram has proved the registration of the FIR which is Ex.PW4/A. PW5 Ct. Balbir singh was the assisting IO. PW6 Farheen is the minor victim in the present matter.
Statement of the victim was recorded u/s 164 Cr.PC by Ld.MM Sh. S.K. Gupta. His testimony is dispensed with as the recording of the statement u/s 164 Cr.PC is not disputed by Ld. Defence counsel vide order dt. 19.05.11. PE was closed vide order dt. 28.05.11 and thereafter statement of accused u/s 313 Cr.PC was recorded. Accused chose not to lead any DE.
4. Heard the arguments addressed by Ld. APP for the state and Ld. Counsel for the accused. I have carefully considered the facts and Fir no. 248/00 22.07.11 3/11 circumstances of the present case. I have gone through the charge sheet, annexures and documents on record and entire material relied upon by the prosecution and the evidence led on behalf of the accused.
5. PW6 Farheen is the prosecutrix/victim in the present matter. She has been examined twice by the present court. PW6 has deposed that the present incident happened when she was six years old and was going to buy some thing from the shop. Accused stopped her and asked the address of some person. When she accompanied him for explaining the address, he misbehaved with her. PW6 has further deposed that accused showed his penis and forced her to put it in her mouth and asked her to suck it. He put his penis on her lips and showed her knife and threatened her to kill if she raised voice. However, the victim raised the voice, and on hearing her voice when some one came from the street, on seeing him, accused ran away. Thereafter she went back to her house and narrated the incident to her aunty, dadi and parents. Her statement is Ex.PW6/A. PW6 She has further deposed that accused also kissed her . The said witness has been duly cross examined by Ld. Defence counsel. PW6 has further depose that name of accused is Shahid. PW1 is the aunty of the prosecutrix to whom she told the incident immediately. PW1 has deposed that she had sent her niece for bringing something from the market. When she returned, she was made to relaxed by her and when she inquired what has happened with her, prosecutrix/victim told her that when she had gone to purchase something from the market, she met with the boy who took her to one corner and starting misbehaving Fir no. 248/00 22.07.11 4/11 with her. He started touching her by hand and forcibly kissed her. He further threatened that in case she would tell about the incident to any one, he would kill her. PW1 has further deposed that the prosecutrix even told her that boy asked her to remove her coat as a result of which, she started shouting loudly and on hearing his voice, one person stopped and on seeing that person, the boy who misbehaved with her ran away. PW1 further deposed that PW6 ie victim also told her that the said boy had misbehaved with her earlier also ie few days back. The said fact was not disclosed as she was afraid and when PW1 heard this, she along with her niece ie victim went in search of that boy and her niece pointed out towards the boy who was standing at some distance from her house and identified that boy. On interrogation from the people of gali, they came to know the name of the accused as Shahid. The accused was correctly identified by PW1 in the court. She has further deposed that the father of the victim caught hold of the accused and the present complaint was lodged which is Ex.PW1/A. PW1 has further deposed that she was told by the victim that accused had also shown her knife. The place of incident was shown to the police officials which is Ex.PW1/B. The right of cross examination of the said witness was closed by Ld. Predecessor vide order dt. 09.11.10 after giving ample opportunities to the accused to cross examine her even after altering charge in the year 2008.
6. PW2 is the father of the minor victim. PW2 has deposed that his sister in law namely Nagina has send his daughter to the market and his sister in law told him that some boy had misbehaved with his daughter in a gali. He along with his daughter and Nagina went in Fir no. 248/00 22.07.11 5/11 search of the said boy. He further deposed that Farheen told him about the incident when she was going to the shop , one boy took her to one corner and starting touching her body and forcibly kissed on her body. He also told her to remove her coat and she started crying. On hearing her voice, one passer by stopped and on seeing him he ran away. The said boy had misbehaved with Farheen earlier also. PW2 has further deposed that he went in search of accused immediately and Farheen pointed out towards the boy who stays at some distance from his house and the said boy was duly identified by his daughter who misbehaved with her and whose name is Md. Shahid. He caught hold of him and accused was handed over to the police by him. PW2 categorically identified the accused in the court. The said witness has been duly cross examined by Ld. Defence counsel wherein PW2 has categorically admitted that first of all victim ie minor Farheen went to her aunty Nagina and narrated the incident for the first time to her aunty and thereafter Nagina told him about the entire incident.
7. It is argued by Ld. Defence counsel that the prosecutrix has mentioned the name of one Javed in her statement before Ld. MM u/s 164 Cr.PC which is Ex.PW6/A and at this stage before the court has stated the name of accused as Shahid. Hence, considering the present contradiction, accused be acquitted on this ground. Let the said argument be viewed in light of evidence on record. Perused the testimony of PW6 and her statement u/s 164 Cr.PC. The statement u/s 164 Cr.Pc which is Ex.PW6/A was not specifically put to the victim even to contradict her during her cross examination. Ld. Defence counsel has not raised this objection or put forth this contradiction to the Fir no. 248/00 22.07.11 6/11 victim during cross examination. It is settled law that statement recorded u/s 164 Cr.PC are not substantiative evidence in a case and cannot be made use of except to corroborate or contradict the witness. (Reliance placed on State of Delhi Vs. Ram Lohia, AIR 1960 SC 490). In the present case PW Farheen has categorically identified the accused in the court and has stated his name to be Shahid. Even the accused was arrested after the victim has identified him while he was standing in the gali when the said incident took place. The said fact is corroborated from the testimony of PW1 and PW2 who have categorically deposed that the victim pointed towards the boy who was standing at the corner of the gali whose name is Shahid. He was duly apprehended on the said date and was handed over to the police. Moreover, PW Farheen has neither been contradicted with the said statement during her cross examination by Ld. Defence counsel. There is no contradiction in the staetment of PW6 regarding her statement made before Ld. MM u/s 164 Cr.Pc. Moreover, the arrest memo Ex.PW3/C has been duly proved. Hence on the basis of above discussion, argument of Ld. Defence counsel is not only vague but is mis conceived and is not tenable.
8. Now the second question which is for consideration whether the putting of penis in the mouth of the victim is an unnatural offence u/s 377 IPC. The testimony of PW6 regarding the fact that the penis was put in her mouth and she was made to inhale/drink urine has remained unchanged.
In AIR 1925 Sindh 285 (1925 (26) Crl. L.J. 945)(Khanu V. Emperor) Fir no. 248/00 22.07.11 7/11 "the question which was posed for consideration in was whether the accused (who is clearly guilty of having committed the sin of Fomorrah coitus per os) with a certain little child, the innocent accomplice of his abomination, has thereby committed an offence u/s 377 IPC. It was observed "is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object or carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible ...... By a metapher the word intercourse, like the word commerce, is applied to the relations of sexes. Here also there is that temporary visitation of one organism by a member of the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain cuphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse, connotes reciprocity. Looking at the question in this way, it would seem that the sin of Gomorrah is no less carnal intercourse than the sin of Sodom".
In AIR 1934 Lahore 261 :(1934 (35) Crl.L.J. 1096) (Khandu V. Emperor) :
"Sexual intercourse per nose with a bullock is an unnatural offence within the meaning of Section 377 IPC.
In Lohana Vasantlal Devchand V. The State . "In this case, there were three accused. Accused 1 and 2 had already committed Fir no. 248/00 22.07.11 8/11 the offence, in question, which was carnal intercourse per anus, of the victim boy. The boy began to get a lot of pain and consequently, accused 2 could not succeed having that act. He therefore voluntarily did the act in question by putting his male organ in the mouth of the boy and there was also seminal discharge and the boy had to vomit it out. The question that arose for consideration therein was as to whether the insertion of the male organ by the second accused into the orifice of the mouth of the boy amounted to an offence u/s 377 IPC. It was held : The act was the actual replacement of desire or coitus and would amount to an offence punishable u/s 377 IPC. There was an entry of male penis in the orifice of the mouth of the victim. There was the enveloping of a visited member by the visiting organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said that the act in question amounted to an offence punishable u/s 377 IPC.
What was sought to be conveyed by the explanation was that even mere penetration would be sufficient to constitute carnal intercourse, necessary to the offence referred to in section 377. Seminal discharge, ie the full act of intercourse was not the essential ingredient to constitute an offence in question. It may be true that the theory that the sexual intercourse is only meant for the purpose of conception is an out dated theory. But at the same time it could be said without any hesitation that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this Fir no. 248/00 22.07.11 9/11 act of putting a maleorgan in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature".
It was observed in Brother John Antony Vs. The State 1992 Cr.LJ 1352 " that the alleged acts attributed in the case would fall under two categories"
(1) insertion of the penis of the petitioner into the mouth of the victim boy and doing the act of incarnal intercourse upto the point of ejaculation of semen into the mouth (2) manipulation and movement of the penis of the petitioners whilst being held by the victim boys in such a way as to create an orifice like thing for making the manipulated movements of insertion and withdrawal upto the point of ejaculation of semen. In the process of such manipulation, the visiting male organ is enveloped at least partially by the organism visited, namely, the hands which held tight the penis. The sexual appetite was thus quenched by the ejaculation of semen into the hands of the victims, as prima facie revealed by the statements of various victim boys.
In this view of the matter, the alleged over acts of the petitioner falling under the second category also have to be construed as falling within the ambit and sweep of section 377 IPC, requiring him to face the ordeal of trial".
9. In the present case, victim has categorically deposed that the accused has put his penis in her mouth and also made her drink his urine. The said fact finds mention in her statement u/s 164 Cr.PC which is Ex.PW6/A. She further deposed in her examination Fir no. 248/00 22.07.11 10/11 in chief before the court that the accused showed his penis and forced her to put it in her mouth and asked her to suck it . From the above said judgments as discussed, it is clear that the insertion of the penis into the mouth of the victim and doing the act of incarnal intercourse upto the point of ejaculation and semen into the mouth of the victim or movement of penis in such a way as to create orifice like thing for making the manipulated movements of insertion and withdrawal upto the point of ejaculation of semen tantamounts to unnatural sex as defined in sec. 377 IPC. The sexual appetite of accused was quenched by the moment he put his penis in the mouth of Farheen and asked her to suck it. He also made her to drink his urine. The said act of putting his penis into the mouth of victim and consequent act of making her to drink his urine is against the order of nature and false within the ambit and sweep of section 377 IPC. At this stage Ld. Defence counsel was critical about the fact that the above said incident does not finds mention in the testimony of PW1 and PW2, hence no reliance can be placed on the testimony of PW6. Hon'ble Supreme Court in plethora of its judgments has categorically held that the sole testimony of witness can be relied upon if the same is credible and trustworthy. The above said incident took place in the year 2000 when the victim Farheen was about 6 years of age. She categorically deposed about the said incident before Ld. MM when her statement u/s 164 Cr.PC was recorded. Even her testimony in respect of alleged incident of putting the penis into her mouth and making her suck the same and drink urine of accused has remained unchanged when she was examined before the court. It is highly Fir no. 248/00 22.07.11 11/11 improbable to expect from the minor child of 6 years to understand the complete process and depose emphatically using the exact terminology. However, in the present case, she categorically deposed that she was made to put the penis into her mouth and made to suck the same and drink urine of accused. Hence, on the basis of afore said discussion, accused is accordingly convicted for offence u/s 377 IPC.
As regards the offence u/s 354 IPC PW6 has categorically deposed that accused kissed her and also removed her coat. The said statement is corroborated from the testimony of PW1 & PW2 , hence accused also stands convicted for offence u/s 354 IPC.
As regards the offence u/s 506(II) IPC PW6 has categorically deposed that the accused showed her knife and threatened her to kill her if she raised voice. The said fact is also corroborated from the testimony of PW1 & PW2. Accused stands convicted for the offence U/s 506(II) IPC also.
Announced in the open court (KIRAN GUPTA)
today on 22.07.11 METROPOLITAN MAGISTRATE
Mahila Court (Central)