Delhi District Court
State vs . Riyasat Ali on 19 July, 2007
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA
M.M. KKD COURTS DELHI:-
FIR No. 361/98
U/S. 377 IPC
P.S. Bhajan Pura
State Vs. Riyasat Ali
JUDGMENT
a. Sl. No. of the case : 116/03
b. Date of commission of offence : 25.06.98
c. Name of the complainant : Smt. Anis Fatima
d. Name of the accused, his Riyasat Ali
parentage and address. S/o Sh. Raish
R/o Vegabond, Mustafabad
Delhi.
e. Plea of the accused : Pleaded not guilty.
f. Offence complained of : U/s. 377 IPC
g. Final order : Convicted.
h. Date of institution : 18.09.98
i. Judgment reserved on : 04.07.07.
j. Judgment delivered on : 19.07.07.
I. Brief reasons for the decision of the case.
The accused Riyasat Ali was charge sheeted by SHO PS-Bhajan Pura with the allegations that on 25.06.98, a complaint was made by one Smt. Anis Fatima that in the evening her sons Jagam and Sher Khan were playing outside their house, in between her elder son Jagam came to her at the house and told that one young boy is taking away her second son Sher Khan after enticing to give him toffee and money. After hearing this, she went 1 to see her child with fast steps and when she reached in gali no. 1-A, North Ghonda, she heard voice of crying of her son Sher Khan and the voice was coming from a nearby vacant house, so she also went inside the vacant house and saw that one young boy was committing carnal intercourse against the order of nature with her son Sher Khan. The abdomen of her child was towards the earth and at that time the young boy had taken out his wearing pant and was committing unnatural intercourse with her son, on which, she started shouting loudly, thereafter the young boy started running. After hearing noise some public persons came there, who apprehended the boy and she took her child, who was bleeding from his anus and the apprehended boy disclosed his name as Riyasat Ali S/o Sh. Rais, he was handed over to police by public persons. On the basis of this complaint, present case FIR was registered.
Accused as well as victim was taken by police to GTB Hospital, where their MLCs were prepared. Their blood samples were taken. The investigation of the case was conducted and during the investigation, site plan was prepared, statements of witnesses were recorded, accused was arrested and after completing the other formal investigation, the challan was presented in the court for trial.
On appearance of accused, copies were supplied U/s. 207 Cr.P.C. and since prima facie a case U/s. 377 IPC was made out against the accused. Accordingly, a charge was 2 framed, to which accused pleaded not guilty and claimed trial.
The statement of accused U/s. 313 CrPC was recorded, wherein he claimed himself innocent on the plea of false implication, he does not prefer to lead evidence in his defence.
To substantiate the charge prosecution examined eleven witness in all. PW1 HC Atar Singh, DO, who proved copy of FIR as Ex. PW1/A, PW2 is Dr. TR Ramtek from GTB Hospital, who medically examined the child Sher Khan vide MLC Ex. PW2/A, PW3 is Smt. Anis Fatima, i.e. complainant and mother of the victim Sher Khan, who proved her complaint as Ex. PW3/A, PW4 is Sh. Surender Sharma, the public witness, who apprehended the accused and handed him to the police, PW5 is ASI Martin, who received the call through 100 number and went to the spot with PCR van staff, PW6 is Sh. Bal Kishan, the other witness, who came out after hearing noise and saw the accused, PW7 is ASI Beer Singh, who received the telephonic call and sent message through DD no. 32, PW8 is Sher Khan, the victim child, PW9 is Jagam, the brother of the victim, who was playing with him before the incident, PW10 is Ct. Rameshwar, who along with IO reached at the spot and got the case FIR registered and PW11 is IO, who narrated the steps taken during the investigation and proved various memos prepared by him at the spot.
I have heard Ld. APP for the State and Ld. counsel for accused and perused the record. Ld. counsel for accused 3 submits that accused has been falsely implicated by the complainant and no opinion is given on MLC Ex. PW2/A. During the trial an application U/s. 311 CrPC for further cross examination of witness/complainant and the victim child was filed on behalf of accused, which was allowed, subject to their availability, but as it was reported on the summons that they have left the given address and their present whereabouts are not known, they could not be recalled despite dasti summons. Although, the victim child Sher Khan i.e. PW8 and his elder brother i.e. PW9 were cross examined by Ld. defence counsel and PW3 Anis Fatima was not cross examined, despite opportunity given to the accused on the day when she deposed before the court.
PW2 Dr. Ramtek, PW3 Smt. Anis Fatima, i.e. complainant, PW4 Sh. Surender Sharma, PW6 Sh. Bal Kishan, PW8 Sher Khan and PW9 Jagam are the material witnesses of the prosecution.
PW3 Smt. Anis Fatima deposed that on the day of incident, her both children namely Sher Khan and Jagam were playing in front of her house, her son Jagam came and told that a young boy is taking Sher Khan after enticing him to give toffee, on which she along with her elder son Jagam went in search of Sher Khan and when she reached near gali no. 1, North Ghonda, near the school, she heard a noise of her child Sher Khan, which was coming from one empty plot (Khandar) where she saw that 4 accused, present in the court was in naked condition as he had not wearing his pant and her son was lying on the earth and his abdomen was towards the earth and accused present in the court was doing unnatural intercourse with him. PW3 further deposed that she started making noise, on which some public persons came and apprehended the accused and proved her complaint as Ex. PW3/A. PW4 Sh. Surender Sharma is the another material witness, who deposed that on 25.06.98 at about 9 pm, he heard a noise of 'Pakro-Pakro!' of one lady, he saw that a person was running and he apprehended that accused, present in the court and someone called the police.
PW6 Sh. Bal Kishan has also deposed that on the day of incident, he heard some noise from outside, on which he came out his house and saw that complainant was coming along with her child of aged about 4/5 years and the child was weeping and he asked from complainant and she told that some one has committed carnal intercourse with the child and the child identified the accused, who committed the offence with him. PW6 also identified the accused. In his cross examination he confirmed that incident did not take place in his presence.
PW8 Sher Khan and PW9 Jagam both are the star witnesses of the prosecution. PW8 Sher Khan i.e. the victim was of aged about 8 years, when he appeared before the Ld. 5 Predecessor to depose, after putting some general question by Ld. Predecessor he was examined and deposed that accused present in the court called him for giving toffee and then did wrong thing after pushing him down and one person Sharmaji came there, who gave him beatings. Police also came there and took him GTB hospital for medical examination. PW8 further clarified that accused called them for giving toffee, however his brother ran away, but he could not run away as he is suffering from Polio. However, PW8 further identified his underwear as P-1. In his cross examination PW8 denied that his mother tutored him about the case.
PW9 Jagam, who was also with the victim, also identified the accused and deposed that he call them to take toffee, but he refused and when the accused tried to catch him, he ran away, but his brother could not run away due to Polio and the accused took him into Khandar and his brother told him that the accused did wrong thing with him. In his cross examination PW9 also confirmed that he informed about the incident to his mother, as the accused took his brother and he accompanied his mother to the Khandar. He further denied the suggestion that police instructed him to depose before the court in such manner.
From the testimony of prosecution witnesses, the identity of accused has been proved beyond doubt. However, the identity of accused is not disputed by Ld. defence counsel, even a suggestion to this effect was not put by Ld. defence counsel to 6 prosecution witnesses. PW8 Sher Khan and PW9 Jagam deposed the entire incident in a cogent manner and the chain of circumstances is further proved by the testimony of PW3 Smt. Anis Fatima and PW4 Sh. Surender Sharma, who apprehended the accused and by the testimony of PW6 Bal Kishan, who saw the child while weeping and complainant told him that accused had committed carnal intercourse with her child. No explanation has come on record that why the child of aged about 5 years i.e. PW8 Sher Khan was at the time of incident would deposed against the accused. In fact small child of aged about 5 years old as is Sher Khan was at the relevant time is far away from any feeling of false implication. This kind of unnatural offences are at times, not even deemed to be in the knowledge of adolescence, leave along a small child of aged about 5 years and it is only when actually something happens to the child, he comes out with the incident in simplicity. PW2 Dr. Ramtek, who proved the MLC of Sher Khan as Ex. PW2/A confirmed in his cross examination that MLC is in his own hand writing i.e. Ex. PW2/A and as per MLC Ex. PW2/A on examination of child Sher Khan by Dr. Ram Tek, bleeding was observed from the anus of victim Sher Khan. No suggestion was given to PW2 that no unnatural offence was committed with victim child, although on 17.09.98, no opinion was given by other doctor to IO as papers of the case were not put before him, which is not fatal to the prosecution case, as PW2, who firstly examined the 7 victim child, appeared before the court and proved his report i.e. MLC Ex. PW2/A, wherein bleeding, abrasion and stretching on buttocks, were observed.
After going through through the testimony of prosecution witnesses coupled with MLC Ex. PW2/A, I am of the considered opinion that it has been proved beyond reasonable doubt that on 26.06.98 accused Riyasat Ali committed carnal intercourse against the order of nature with child Sher Khan, as such I hold the accused guilty for the offence punishable U/s. 377 IPC and convict him therein under.
Announced in the Open (SANJEEV KUMAR MALHOTRA) Court on 19.07.07. Metropolitan Magistrate KKD Courts, Delhi.
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