Delhi District Court
Sc No. 48/12 State vs Sikender @ Javed Page No. 1/26 on 6 January, 2014
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID No. 02406R0165452012
SESSIONS CASE NO. 48/12
FIR NO. 137/12
POLICE STATION : AMAR COLONY
UNDER SECTION : 377/367/323/506 IPC
STATE
VERSUS
1 SIKENDER @ JAVED,
S/O SH. YAMEEN,
R/O H.NO. 256, SARAI KAZI MOHALLA,
DISTRICT BULANDSHAHAR, UTTAR PRADESH.
DATE OF INSTITUTION : 06.07.2012.
DATE OF RESERVING ORDER : 22.11.2013.
DATE OF DECISION : 06.01.2014.
J U D G M E N T
Case of Prosecution:
1 On 28.04.2012 SI Devendra Kumar after receiving DD No. 4 SC No. 48/12 State Vs Sikender @ Javed Page No. 1/26 dated 28.04.2012 PP Sriniwas Puri along with HC Devender and Ct.
Dharamvir reached at the spot i.e. Shop No. 5, Okhla Subzi Mandi, Sri Niwaspuri where one person namely Jahid informed that one person namely Sikender @ Javed had committed wrong act with his nephew/victim Faraz. Ct. Devender was deputed at the spot by SI Devendra Kumar and the victim Faraz was taken to AIIMS Hospital for medical examination along with Jahid by SI Devender Kumar and Ct. Dharamvir where victim Faraz was got medically examined. Statement of victim Faraz was recorded by SI Devendra Kumar wherein he stated that he resides with his uncle (Mama) at Okhla Subzi Mandi and studying in 2nd class. He was sleeping in the shop at Okhla Subzi Mandi. Accused Sikender @ Javed who used to roam in Okhla Subzi Mandi, came to him and put his hand on his mouth and took him to a jungle near railway line. Accused took off the clothes of victim and inserted his penis into the anus of victim. Victim cried in pain on which he gave beatings to him and threatened him that if he discloses anything to anybody he will throw him on the railway track. Accused then left him there. While he was crying, two boys came there and dropped him at the shop. He told the facts to his uncle Jahid and reported the matter to police. Case was registered against the accused. Site plan was prepared at the instance of victim Faraz. Spot was investigated by the crime team who submitted the report. Thereafter, on receiving information from Jahid about the apprehending of accused SC No. 48/12 State Vs Sikender @ Javed Page No. 2/26 Sikender @ Javed at Okhla Subzi Mandi Sri Niwaspuri, SI Devendra Kumar reached there and arrested the accused. Medical examination of accused was conducted at AIIMS Hospital. Victim was produced before the CWC, Lajpat Nagar from where victim was handed over to his father. Record of date of birth of victim was taken from his school i.e. MC Primary, Model Boys School (cz), Sriniwaspuri, New Delhi. Exhibits were sent to FSL, Rohini. Thereafter, statement of witnesses were recorded by the Investigating officer and after completion of investigation, charge sheet was filed under Section 367/377/323/506 of IPC against the accused in the court.
2 Since the offence under Section 367 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3 Prima facie case under section 367/377/323/506 IPC was made out against the accused. Charge under Section 367/377/323/506 IPC was framed upon the accused to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4 In support of its case, prosecution has examined thirteen witnesses in all. The brief summary of the witnesses are as under: SC No. 48/12 State Vs Sikender @ Javed Page No. 3/26 Material witnesses: 5 PW3 is Sh. Mohd. Jahid who deposed that he runs a vegetable shop in Okhla Subzi Mandi. Her nephew/complainant Faraj also resides with him. He is studying in 2nd class in MCD School, Sriniwas Puri, New Delhi. On 28.04.2012 he was sleeping in Shop No. 194. At about 3/3 AM his friend Mustakin made a phone call to him and called him to the shop. He immediately came to his shop no. 5 and inquired from his nephew Faraj about the incident at which Faraj told him that he was sleeping in the shop and that accused Sikander came there and lifted him by putting his hand on his mouth and took him towards the railway line where he committed carnal intercourse (Sodomy) with Faraj. He made a phone call at number 100. The PCR Van came there followed by the local police. The police took his nephew to the AIIMS Hospital and got him medically examined. The police also took Faraj to the place where the accused had sodomized him. The police conducted the proceedings there and recorded his statement. On the same day in the evening at about 7 PM he along with his nephew were present at his shop. They witnessed the accused passing by Subzi Mandi. They chased and apprehended him near the gate of Subzi Mandi where the police booth was located. He called up the police and handed over the accused to the police. Accused was arrested by the police. Witness/PW3 has duly proved the memos Ex.PW3/A and Ex.PW3/B. Witness has stated that one mobile phone and SC No. 48/12 State Vs Sikender @ Javed Page No. 4/26 Rs. 430/ was recovered from the personal search of the accused. Witness has duly proved all the memos in this regard.
6 PW5 is the complainant himself. He deposed that at about nine months back when he was sleeping in his shop in the night accused Sikender came to him and put his hand on his mouth and took him towards the bushes near the railway line with him. The accused removed his pant and inserted his penis (organ for passing urine) into his anus. He cried in pain and upon his crying the accused had gave beatings to him and accused also said if he will reveal the incident to anybody he will put him on the railway track. Thereafter, accused left him there. He called up the police and gave his statement to them which is Ex.PW5/A. Police got his medical examination conducted vide MLC Ex.PW2/A. He stated that at the time of medical examination his clothes were taken/kept by the doctor. He stated that his statement was recorded by a judge. The witness has duly identified his signatures on the statement under section 164 Cr.P.C Ex.PW5/B and also identified the accused in the court. Witness has also correctly identified his jeans and banyan as Ex.P1 and Ex.P2 respectively in the court.
7 PW13 is SI Devender, Investigating officer of the case. He deposed that on the intervening night of 27/28.04.2012 upon receipt of DD No.4 he along with HC Devender and Ct. Dharamvir reached at the spot i.e. Shop No. 5, Subzi Mandi Okhla where the caller namely Sh. Zahid SC No. 48/12 State Vs Sikender @ Javed Page No. 5/26 along with his nephew Farhaz met them. Sh. Zahid narrated the incident and led him to the place of occurrence where he deputed HC Devender to look after the spot and he along with Ct. Dharamvir, Zahid and victim Master Farhaz went to AIIMS Hospital and got Master Farhaz medically examined. He also seized five pullandas duly sealed with the seal of hospital along with sample seal , informed the Butterfly NGO and in the presence of the NGO official recorded the statement of victim. He then got the case registered through Ct. Dharamvir. He prepared site plan, called up the Crime team at the spot who inspected the scene of crime and submitted report. Accused was also searched but could not be traced. He got recorded the statement of victim under section 164 Cr.P.C and victim was then handed over to Sh. Zahid. On 28.04.2012 Sh. Zahid made a phone call that Sikender have been apprehended by him near Okhla Subzi Mandi Gate No. 1. On this information, he along with Ct. Dharamvir reached there and accused was handed over to him by Zahid. He interrogated the accused, arrested him, conducted personal search of the accused, recorded disclosure statement of accused. Accused also pointed out the place of occurrence. He got the accused medically examined at AIIMS Hospital and also seized three pullandas duly sealed with the seal of hospital along with sample seal. On 30.04.2012 Master Farhaz was produced before the CWC, Lajpat Nagar where he was given to his father. He also collected the date of birth of Master Farhaz from Nagar Nigam SC No. 48/12 State Vs Sikender @ Javed Page No. 6/26 Prathmick Adarsh Vidyalaya, Sriniwaspuri wherein the date of birth of Master Farhaz was mentioned as 04.02.2005. Exhibits were sent to FSL, Rohini for examination on 22.05.2012. He also recorded the statement of NGO official and other witnesses under section 161 Cr.P.C and thereafter, filed the charge sheet in the court. He has duly proved all the exhibits on record.
Formal witnesses: 8 PW1 is ASI Mohan Lal who deposed that on 28.04.2012 he was posted as duty officer at police station Amar Colony and on receipt of rukka Mark X through Ct. Dharamvir he recorded the formal FIR, the computerized print out of the FIR is Ex.PW1/A and after registration of case, handed over the rukka and copy of FIR back to Constable Dharamvir. He has duly proved his endorsement on rukka as Ex.PW1/B. He further stated that investigation of the case was handed over to SI Devender. 9 PW4 Constable Dharamvir who deposed that on 28.04.2012 he was posted as Constable at police station Amar Colony and on receipt of a call at about 3.30 AM he along with SI Devender reached at the spot i.e. Shop No. 5 Okhla Subzi Mandi where the caller Sh. Jahid along with his nephew Faraj met them and informed about the carnal intercourse having been committed by the accused Sikender with victim Faraj in bushes behind the PNB ATM near the Railway station. The beat officer of the area HC Devender was also present there. Leaving HC Devender at the SC No. 48/12 State Vs Sikender @ Javed Page No. 7/26 spot, he along with IO took the victim to the AIIMS Hopital and got him medically examined. After the medical examination, doctor in the hospital handed over six exhibits duly sealed with the seal of hospital along with sample seal to the IO which was seized vide memo Ex.PW4/A. The came back to the police chowki Sri Naiwaspuri where the officials of the Butterfly (NGO) Sh. Ramesh Kumar was present who examined the victim and recorded his statement. IO recorded the statement of the complainant Master Faraj and prepared rukka and handed over same to him for registration of FIR. After registration, he came back at the spot and handed over the rukka and copy of FIR to IO. On 28.04.2012 at about 7 PM Sh. Zahid informed about the apprehending of the accused by him near Okhla Subzi Mandi. Accordingly, he along with IO reached near the Police Booth where Zahid and Faraj were present along with accused Sikender. IO interrogated the accused and upon confessing his guilt IO arrested the accused vide arrest memo Ex.PW3/A. Personal search was conducted vide memo Ex.PW3/B. Disclosure statement of accused was recorded vide memo Ex.PW3/C. One Nokia Phone and Rs. 430/ were recovered from the personal search of the accused. Accused also pointed out the place of occurrence vide pointing out memo Ex.PW4/B. Accused was got medically examined at AIIMS Hospital and thereafter doctors handed over four pullandas sealed with the seal of hospital along with sample seal to the IO which was seized by IO vide memo Ex.PW4/C. SC No. 48/12 State Vs Sikender @ Javed Page No. 8/26 They came back to police station where the exhibits were deposited in the Malkhana by the IO. IO recorded his statement. Witness has correctly identified the accused in the court.
10 PW6 is HC Devender who deposed that on 28.04.2012 he was posted at PP Sriniwaspuri, PS Amar Colony and was on emergency duty with Ct. Dharamvir and SI Devender. On the said day, upon receipt of call they reached at Okhla Subzi Mandi Shop No.5 where the caller Sh. Zahid along with his nephew Faraz informed about the sodomy having been committed by accused Sikender with Faraz. Faraz also took them to wards railway line near PNB ATM near Okhla Railway Station where he was sodomized. Leaving him at the spot, IO along with Ct. Dharamvir took Farhaz for his medical examination. Zahid also accompanied them. After medical examination they came back at the spot. Crime Team also arrived there. IO recorded the statement of Faraz and prepared rukka and handed over the same to Ct. Dharamvir for registration of the case. IO recorded his statement at the police booth at the corner of Mandi. IO searched the accused but could not find him.
11 PW7 is Sh. Wazir Hussain, Incharge/Vice Principal, MC Primary Model Boys School, Sriniwaspuri, New Delhi who had brought the pasting register containing the admission form along with affidavit and have also brought the admission register pertaining to the admission of Faraz. As per record, Sh. Zahir guardian of Master Farhaz got him SC No. 48/12 State Vs Sikender @ Javed Page No. 9/26 admitted in their school on 03.04.2012 in second class and his date of birth is 04.02.2005. His admission was duly entered at serial number 15255 in the admission register. The photocopy of the admission form Ex.PW7/A, photocopy of affidavit Ex.PW7/B and the photocopy of the admission register Ex.PW7/C is duly proved by the witness on record. 12 PW9 is Ms. Anu Aggarwal, Metropolitan Magistrate who recorded the statement of prosecutrix under section 164 Cr.P.C and duly proved on record Ex.PW9/A to Ex.PW9/C. 13 PW10 is Sh. Ramesh Kumar, Child Protection Assistant, Butterfly Child Line (NGO) who deposed that on 28.04.2012 at the call of Investigating officer, he reached at police post Sri Niwaspuri where SI Devender Kumar met him. Farhaz was also present there. He inquired from Master Farhaz, aged 9 years. IO examined Master Farhaz and recorded his statement Ex.PW5/A. 14 PW11 is HC Ashwani Kumar who deposed that on 28.04.2012 on receiving an information from Control Room/J50 via WT message that a boy has been raped at Shop No. 5, Okhla Subzi Mandi, he reduced the said information into writing as DD No. 4 in the Roznamcha in his own handwriting. Copy of DD entry was given to SI Devender Singh for further course of action who along with Ct. Dharamvir left for the spot. Copy of DD NO. 4 is Ex.PW11/A(OSR).
15 PW12 is HC Sunda Ram who deposed that on 28.04.2012 IO SC No. 48/12 State Vs Sikender @ Javed Page No. 10/26 of the case deposited ten pullandas duly sealed along with two sample seals in the Malkhana and also deposited the personal search of the accused. He made entry in register no. 19 at serial no. 956 in his handwriting. Photocopy of the relevant entry of register no.19 is Ex.PW12/A(consisting of three pages). On 22.05.2012 at the instructions of IO he handed over the exhibits of the case in sealed condition to IO along with sample seal vide RC No. 65/21/12 who deposited the same in FSL and receipt was given back to him. He has duly proved Ex.PW12/B copy of the register no. 21 on record. He stated that so long as property remained in his possession, same was not tampered with. His statement was recorded by the IO.
Medical witnesses: 16 PW2 is Dr. Hans Raj Singh who deposed that he had medically examined the child and prepared the detailed MLC which is duly proved by him on record as Ex.PW2/A. 17 PW8 is Dr. Asit Kumar Sikary who deposed that he medically examined the accused/patient and prepared detailed MLC Ex.PW8/A and opined that there is nothing to suggest that the person examined is incapable to perform sexual intercourse under normal circumstances. During the medical examination, he collected the blood in gauze, pant, penile swab with control and sealed the same with the seal of hospital along with sample seal and handed over to the police. SC No. 48/12 State Vs Sikender @ Javed Page No. 11/26 18 I have heard Ld. Defence counsel for accused as well as Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state: 19 Ld. APP for state has argued that complainant has supported the case of the prosecution. From the statement of the victim and the concerned doctor the offences are sufficiently proved against the accused. Hence, the accused is liable to be convicted.
Arguments of Ld. Defence Counsel for accused persons: 20 It is argued by the counsel for accused that in the present case the FSL result does not connect accused with the crime. It is also stated that MLC of the victim showed that only tip of little finger was permitted on his examination and as such, it cannot be believed that penis like object was inserted. It is stated that infact father of the victim was on inimical terms with regard to the financial loss with the accused and as such he has falsely implicated the accused. It is stated that no eye witness has been made in this case. It is stated that the allegations under section 506/323 IPC are not proved. Hence, it is prayed that the accused be acquitted. Statement and Defence of accused : 21 Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case made by the complainant. He has stated that he was working with Zahid, maternal uncle of victim and they were selling vegetables. He SC No. 48/12 State Vs Sikender @ Javed Page No. 12/26 left the work with Zahid and started selling vegetables after purchasing the same from Okhla Mandi. He had to take Rs. 3400/ from Zahid towards his salary and when he demanded the same, Zahid fought with him two/three days prior to the date of his arrest and thereafter, falsely implicated him in this case through his nephew Farhaz. Accused had examined two witnesses in his defence. DW1 is Sh. Nazim, Shopkeeper who deposed that he used to sleep in Mandi and used to buy the vegetables from the truck. About 16/17 months ago, while he was sitting in his shop he heard a noise of quarreling at Shop No.4. He went there and found that Javed @ Sikender was working with Jahid and they were quarreling for a sum of Rs. 5,000/ which has to be paid by Jahid to Sikender. He intervene them and Jahid paid a sum of Rs. 1,600/and promised to pay the remaining amount of Rs. 3,400/ later on. After paying the amount, Jahid threatened Sikender for facing dire consequences and to implicate falsely in this case whereafter, Javed left his job and remained in Shahin Bagh Mandi where he used to sell vegetables. As he was residing over there, police came there and inquired from him about Sikender @ Javed and on his pointing out Sikender @ Javed was arrested by the police. He stated that in Okhla Mandi there were heavy crowd at night and there were lights on and no such matter has been done by Sikender @ Javed. He stated that at the outer gate of Okhla Mandi , there is an ATM Machine and security guard always remained there. He along with other persons requested the SC No. 48/12 State Vs Sikender @ Javed Page No. 13/26 police officials that it is false case but the police officers told them to go to court. He further stated that it is a false case made against the accused Sikender @ Javed and no such incident had occurred and this case has been made due to enmity.
DW2 is Sh. Kasim, Vegetable seller who sells tomatoes and vegetables in Okhla Mandi at Shop No. 13. He had brought the counter slip No. 5851 , 5702 dated 06.11.2013 and the same are Ex.DW2/A and Ex.DW2/B. He deposed that about 16/17 months ago, he heard a noise of quarreling between Sikender and Jahid. There were many other persons present at the shop of Jahid as Sikender @ Javed was working with him and Sikender @ Javed has to take Rs. 5,000/ from Jahid. On the intervening of one Rahul, Jahid paid a sum of Rs. 1,600/ to Sikender @Javed and promised to pay balance of Rs. 3,400/ later on . He also threatened to Sikender @ Javed for facing dire consequences and to implicate in some case. He stated that there were so many people present in the Okhla Mandi at 10 PM and Okhla Mandi was having many lights which remained lightened during the night time. After the quarrel, Sikender @ Javed left the job of Jahid and used to sell vegetable in Shahin Bagh and did not return to Okhla Mandi. There is a police post near the Shop No. 4 where Jahid and Javed were quarreling. ATM Machine is also there where the guard remained present for 24 hours. The shopkeepers remained awakened during the night hours as their goods came from SC No. 48/12 State Vs Sikender @ Javed Page No. 14/26 different parts. Whenever some mishappening is done all the shopkeepers gathered. He stated that no such incident happened as stated in the FIR by Jahid. He along with other persons requested the police officials that it is false case but the police officers told them to go to court. Sikender @ Javed is an innocent person and has been falsely implicated in this case due to enmity.
Conclusion: 22 To prove the offence under section 377 IPC, prosecution has to prove the following essential ingredients : (a) A person voluntarily has carnal intercourse. (b) Such intercourse is against the order of nature. (c) It is with any man, woman or animal. 23 Similarly, section 367 IPC provides: Whoever, kidnaps or
abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
24 The court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him SC No. 48/12 State Vs Sikender @ Javed Page No. 15/26 and to articulate an opinion about the credibility of the witness. For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
25 The entire foundation to bring home the offence against the accused rests on the statement of the victim who is just aged 9 years of age. It needs no elaboration that a conviction can be based on the uncorroborated evidence of the victim if the same inspires confidence. It will be useful to refer to the observations of Apex Court in the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 SC No. 48/12 State Vs Sikender @ Javed Page No. 16/26 wherein Hon'ble Supreme court has made observations with regard to the appreciation of evidence of prosecutrix in a rape case. The prosecutrix in a rape case is on the same footing as the victim of an unnatural offence and an analogy can be drawn from the observations of Hon'ble Supreme Court in that case wherein it is observed by Apex court : " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also SC No. 48/12 State Vs Sikender @ Javed Page No. 17/26 been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
Similar views are expressed in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein honble the Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that: "The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
26 In the present case PW5 is the victim who is a child of tender age of 9 years. To prove the age of the victim, prosecution has examined PW7 Sh. Wazir Rehman, Incharge/Vice Principal, MC Primary Model SC No. 48/12 State Vs Sikender @ Javed Page No. 18/26 Boys School, Sriniwaspuri, New Delhi. No cross examination of this witness was done to the witness. Accused has nowhere disputed authenticity of the school records of the victim nor he has ever challenged the age of the victim. Hence, the prosecution has proved that child was 9 years of age at the time of incident.
27 The Indian Evidence Act 1872 does not prescribe any particular age as a determinative factor to treat the witness to be competent witness. As per section 118 of Indian Evidence Act, 1872, all the witnesses shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, weather of body or mind or any other cause of the same kind. An explanation has been incorporated by the legislature to clarify that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers. Thus, so far as the competency to appear as a witness, the legislature has underlined the basic requirement of a person's understanding of the obligation to speak the truth and to give an accurate impression and possession of the mental capacity at the time of the occurrence concerning which he has to testify and to receive an accurate impression of it. This would be moreso in the case the witness is a child of tender years. It is necessary to ascertain as to whether the witness had a memory sufficient SC No. 48/12 State Vs Sikender @ Javed Page No. 19/26 to retain and independent recollection of the occurrence, capacity to understand simple question about it and the capacity to express his / her memory of occurrence.
28 The Apex court has observed that the omission to administer an oath goes to the credibility of the witness and not his competency which is in effect under section 118 of Indian Evidence Act, 1872. 29 So far as the competency of a child to testify as a witness is concerned, the courts in India have relied on the proposition formulated by Justice Brewer in Wheeler vs. United States 159 US 523 (1895) who had opined that the evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon. 30 The reservation expressed with regard to evaluating the testimony of a witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. (Ref: Panchhi vs. State of U.P. MANU/SC/ 0530/ 1998 : 1998 CriLJ 4044). 31 It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is SC No. 48/12 State Vs Sikender @ Javed Page No. 20/26 required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref : Dattu Ramrao Sakhare & Ors. vs. State of Maharashtra MANU/SC/1185/1997 : (1997) 5 SCC 341; Suryanarayana vs. State of Karnataka MANU/SC/0001/2001 :
2001 Cri.L.J. 705).
32 In his statement before the court the victim has identified the accused and had specifically deposed that the accused took him towards the bushes near railway lines in the night by putting his hand on his mouth, removed his pant and inserted his penis (organ for passing urine) into his anus. He has deposed that he cried with pain upon which the accused had beaten him up and has also threatened him that if he will reveal the incident to anybody, he will put him on the railway track. Nothing adverse came out in the cross examination of the victim/ PW5. Even in the statement under section 164 Cr.P.C the victim has made statement on the similar lines. He has denied that accused was working on the shop of his maternal uncle in Subzi Mandi and or that his maternal uncle refused to pay wages to him and on which a quarrel took place between them. He has also denied that he has falsely implicated the accused. The testimony of the child remains intact and is duly supported by MLC which is duly SC No. 48/12 State Vs Sikender @ Javed Page No. 21/26 proved on record by PW2 Dr. Hansraj.
33 It is not the case of the accused that the victim was inimical terms with him. It cannot be believed that child of 9 years of age shall falsely implicate the accused. Hence, the testimony of the victim inspires confidence. There is nothing to disbelieve his testimony which remain consistent throughout despite the fact of the atmosphere of the court being not conducive.
34 PW3 Mohd. Jahid, uncle of the victim had also deposed that on receiving a call from his friend that nephew/victim is crying he went to his shop and inquired about the incident wherein the victim told about the offence committed by the accused Sikender @ Javed. Nothing adverse came out in the cross examination of this witness also who has also denied that he was indebted to the accused or that when he demanded his money back he got him falsely implicated in this case. From the statement of the victim it is clearly proved that the accused had taken away the victim/child with the intention that he may be subjected to his unnatural lust and has also committed carnal intercourse with him.
35 Medical Evidence: The MLC of the victim shows that there were several injuries on the person of the victim and on his private parts. MLC of the accused also shows several injuries on his person. As per the report of the doctor all the external injuries found on the person of the accused were around one day old. No explanation is given by the accused SC No. 48/12 State Vs Sikender @ Javed Page No. 22/26 with regard to the injuries which were found on his person. As per the defence of the accused the quarrel had taken place between him and the cousin of the accused on account of money transaction 34 days prior to the date of his arrest. To prove his defence with regard to the quarrel the accused has examined DW1 and DW2 but neither DW1 nor DW2 nor the accused had spoken about any scuffle during the said alleged quarrel nor they can tell about the specific date of quarrel. The injuries were only one day old. The injuries on the person of the victim as well as on the person of the accused goes to corroborate the statement of the victim with regard to the offence being committed upon him. The statement of the victim that after the incident when he cried in pain the accused had beaten him up and also intimidated him explains the presence of injuries on the person of the victim as shown in the MLC. The accused could not explain as to how he got the injuries on his person and as such, it is a material circumstance going against the accused.
36 It is argued by Ld. counsel for accused that the DNA result does not connect the accused with the offence. The DNA result is only an opinion but the same cannot have an overriding effect over the oral testimony of the victim. The DNA report is only a corroborative piece of evidence. If the statement of the victim is inspiring and trustworthy and there is no chance of false implication of the accused due to enmity or otherwise and the same is otherwise corroborated by the MLC and SC No. 48/12 State Vs Sikender @ Javed Page No. 23/26 statement of other witnesses to whom the incident was narrated by the victim soon after it occurred with him with specific identity by name of the accused, there is no question to disbelieve the testimony of the child only on the basis of DNA report. The DNA result can be affected by many intervening factors. In view of the clear statement of the child/victim, the DNA result cannot falsify the statement of the victim which is otherwise consistent, coherent and believable.
37 Defence of the accused: As per the defence of the accused he has stated that he has been falsely implicated in this case. He was working with Zahid, maternal uncle of victim and were selling vegetables. He left the work with Zahid and started selling vegetables after purchasing the same from Okhla Mandi. He had to take Rs. 3,400/ from Zahid towards his salary. When he demanded his salary, Zahid fought with him two/three days prior to the date of his arrest and thereafter, falsely booked him in this case through his nephew Faraj.
38 To prove his defence, accused has examined DW1 and DW2 who are the witnesses of the incidence of quarrel between Zahid and uncle of the victim of the accused and have stated that the uncle had owed Rs. 3,400/ to the accused however, both the witnesses have admitted in their examination that they are not the eye witness of the incident and as such, their testimony cannot falsify the statement of the victim. 39 Section 323 IPC: Section 319 IPC provides that whosoever SC No. 48/12 State Vs Sikender @ Javed Page No. 24/26 causes bodily pain, decease or infirmity to any person is said to cause hurt. The offence of causing hurt voluntarily is punishable under section 323 IPC.
The child has stated that the accused has beaten him when he cried after the incident. His MLC also shows various injuries on the person. Hence, prima facie it is proved that injuries were given by the accused.
40 Section 506 IPC defines: 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 of 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.
As per the statement of the victim, accused had intimidated him that if he tried to shout he will put him on the railway track. On this point the testimony of PW5 victim could not be shattered by the accused. Hence, section 506 IPC is also proved.
SC No. 48/12 State Vs Sikender @ Javed Page No. 25/26 41 In view of the above said discussion, prosecution has been fully able to prove its case against the accused. Hence, accused Sikender @ Javed is held guilty and convicted for the offence under Section 367/377/323/506 IPC.
ANNOUNCED IN THE OPEN COURT ON 06.01.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 48/12 State Vs Sikender @ Javed Page No. 26/26