Delhi District Court
State vs Musafir on 5 July, 2008
"!$#&%'!$#
IN THE COURT OF SHRI MAHESH CHANDER GUPTA
ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
State Vs Musafir
FIR No.: 206/06
P.S. : Janak Puri
U/s 377/506 IPC
J U D G M E N T:
(a) Sl. No. of the case : 1885/2 of 2006.
(b) Date of commission of the offence : 11.04.2006
(c) Name of the complainant if any : Shabin Gwala @ Raju
s/o Shankar Gwala r/o Village
Dharma Line, Post-Nagar Kata, PS
& District-Jalpaiguri
(d) Name of the accused person,
and his parentage and Address : Musafir S/o Ghurhu Sardar
R/o RZ-215, Raghu Nagar, Darbri,
Pankha Road, Delhi. Permanent
Address: Village-Babinauli, STO-
Malikpura, PS Sadimabad, District-
Gajipur, Uttar Pradesh.
(e) Offence complained of : U/s 377/506 IPC
(f) Plea of the accused : Pleaded not guilty.
(g) Final Order : Convicted.
(h) The date of such order : 12.06.2008.
Date of Institution of case : 07.06.2006.
Date on which judgment reserved: 09.06.2008.
Date of judgment : 12.06.2008.
BRIEF STATEMENT OF THE REASONS FOR DECISION:
The prosecution case, in brief, is that in the intervening night of 10/11.04.2006 between 1 or 1:30am inside bus no.DL-1PB-4424 when the same was ( )+*-,/.1032 4$5 "!$#&%'!$# parked at Pankha Road, Janak Puri near Janak Cinema within the jurisdiction of PS Janak Puri accused Musafir voluntarily had carnal intercourse against the order of nature with the complainant Shabin Gwala @ Raju, a boy, and also criminally intimidated to cut him (to kill him) with intent to cause alarm to him and thereby committed offences punishable U/s 377/506 (II) IPC.
2. In support of its case, the prosecution has produced and examined thirteen witnesses namely PW1 W/HC Celestina, PW2 Ct. Lalit Kumar, PW3 Dr. Ankush Garg, Senior Resident, DDU Hospital, Delhi, PW4 Ct. Mukesh, PW5 Shabin Gwala, PW6 Dr. Vineet Kumar Soni, Medical Officer, DDU Hospital, Delhi, PW7 Dr. Mukesh, Sr. Resident, Deptt. Of Surgery, DDU Hospital, Delhi, PW8 Ct. Dilbagh Singh, PW9 Sanjeev Kumar Yadav, PW10 HC Ram Niwas, PW11 Sh. Amit Bansal, Ld. MM, Rohini Courts, Delhi, PW12 ASI Vir Singh and PW13 Dr. Rishi, Medical Officer, DDU Hospital, Delhi.
PW1 W/HC Celestina who is the duty officer, who proved the copy of FIR Ex. PW1/A. PW2 Ct. Lalit Kumar, who deposed that on 08.05.2006 he obtained the samples from MHC(M), Janak Puri vide RC No.11/21/2006 and deposited the same at CFSL, Calcutta.
(3)6*-,871032 4$5 "!$#&%'!$# PW3 Dr. Ankush Garg, who proved the MLC of complainant Shabin Gwala Ex. PW3/A. PW4 Ct. Mukesh deposed that on 11.04.2006 he joined the investigation with ASI Vir Singh and deposed on the investigational aspects and proved seizure memo of the documents and sealed parcels obtained from hospital Ex.PW4/A, seizure memo of two seat covers of seats affixed in the bus Ex.PW4/B, arrest memo and personal search memo of accused Musafir Ex.PW4/C and Ex.PW4/D respectively, seizure memo of the worn pant of the accused Ex.PW4/E, seizure memo of the worn pants and brief (kachcha) of Shabin Gwala Ex.PW4/F, seizure memo of blood sample of the accused Ex.PW4/G and proved the seat cover Ex.P1 and brown colour vest and blue pants (jeans) Ex.P2 & P3 respectively, black pant which was worn by the accused at the time of his arrest Ex.P4, box containing blood sample of accused Ex. P5 and slide Ex. P6.
PW 5 Shabin Gwala who is the victim, who deposed regarding the incident and proved his statement made to the police Ex. PW5/A, site plan Ex. PW5/B, besides proving other memos and the case property PW6 Dr. Vineet Kumar Soni who marked MLC of accused Musafir mark-A. ( )+*-,94 032 4$5 "!$#&%'!$# PW7 Dr. Mukesh who deposed that on 11.04.2006 he surgically examined PW5 Shabin Gwala and proved his signature at point X on the MLC Ex.PW3/A. PW 8 Ct. Dilbagh Singh who deposed that in the intervening night of 10/11.04.2006 he was working as DD writer and at about 5:25am i.e. 11.04.2006 he recorded DD No.64B and proved the copy of the same Ex.PW8/A. PW 9 Sanjeev Kumar Yadav, who deposed that he is registered owner of bus no. DL-1PB-4424 and that on 10.04.2006 as there was some fault in the engine of bus he left the bus at the repairing center of accused Musafir situated at in front of Janak Cinema and a young boy to whom one another person left with him for employment just 4 to 5 days prior to 10.04.2006 and the said boy was left by him on the said bus for taking care of said bus while the bus was in the repairing center and on 11.04.2006 he (PW9) was called by the police at the PS Janak Puri and there he came to know that Musafir had done some 'Galat Kaam' with that boy and he (PW9) used to address as Chhotu and because of this reason he does not know his name and can identify the said boy if shown to him.
PW10 HC Ram Niwas, who deposed that on 11.04.2006 he was working as MHC(M) Janak Puri and on that day PW12 ASI Vir Singh proved the relevant entry of the malkhana register regarding depositing of sealed pulanda Ex.PW10/A and ( )+*-,8:;032 4$5 "!$#&%'!$# proved copy of RC No.11/21 for handing over sealed pulanda to Ct. Lalit Kumar for depositing the same to CFSL, Calcutta and for returning one copy of RC with receiving of FSL regarding the deposition of samples, on 09.05.2006 Ex.PW10/B. He further deposed that on 14.05.2006 HC Islam deposited all the exhibits which were received from CFSL, Calcutta in the malkhana in a sealed carton with sample seal of CFSL, Calcutta and examination result was handed over by him to IO PW12 ASI Vir Singh.
PW 11 Sh. Amit Bansal, Ld. MM, Rohini, Delhi who recorded the statement of PW5 Shabin Gwala u/s 164 Cr.PC proved the application of the IO for recording of statement u/s 164 Cr.PC of PW5 Shabin Gwala Ex.PW11/A, the proceedings Ex.11/B, the statement of IO for identification of witness Shanin Gwala Ex.11/C and proved the statement u/s 164 Cr.PC Ex.PW11/D and certificate Ex.PW11/E. PW 12 ASI Vir Singh who is the IO of the case, who deposed on the investigational aspects, besides proving other memos also proved rukka Ex.PW12/A, five photographs alongwith five negatives of the bus and that of the seat of the bus on which offence was committed, Ex.P1 to P5 and Ex.P6 to P10.
PW 13 Dr. Rishi, Medical Officer proved the MLC NO.8782 pertaining to the accused Musafir Ex.PW13/A. (3)6*-,=<>032 4$5 "!$#&%'!$#
3. Statement of accused Musafir was recorded U/s 313 Cr.P.C wherein he has denied the allegations of the prosecution and stated that he is innocent and has been falsely implicated in this case. Accused did not opt to lead any defence evidence.
4. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
5. Section 377 IPC provides for Unnatural Offences:
It reads as :
377. Unnatural offence. - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with [ imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 503 IPC defines Criminal Intimidation:
It reads as :
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.
( )+*-,@?>032 4$5 "!$#&%'!$# Section 506 IPC provides Punishment for criminal intimidation :
It reads as :
506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc. - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [ imprisonment for life], or with imprisonment for a term which may extend to seven years, or with fine, or with both.
6. It is true that the golden thread which runs throughout the cob-web of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. It the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prawl for easy preys, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more ( )+*-,A5B032 4$5 "!$#&%'!$# sensitive while dealing with charges of sexual assault on women. (2000 CriLJ 2205).
7. On careful perusal and analysis of the entire evidence on record I find that corroborative, consistent, reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution.
8. The testimony of PW 5 Shabin Gwala clearly goes to show that it was the accused Musafir who had committed forcible carnal intercourse against the order of nature with him and had also criminally intimidated him to cause hurt.
PW 5 Shabin Gwala in his examination-in-chief recorded on 06.01.2007 has inter-alia deposed that :
" Q 6. What incident happened with you?
Ans. I was sleeping on the bus of the roof. It was 1-1.30 A.M. Musafir was the mechanic of the bus. Bus broke down. At 1.30 A.M. Musaifr came on the roof of the bus and started 'Chhedkhani'. After saving from him I came inside the bus and closed the doors and windows of the bus. One windowpane of the bus was in broken condition and from that window he came inside. He had 2-3 talks with me and thereafter forcibly opened my pants. When I caught hold his hand then he caught hold my both hands. After catching hold my hands he opened my pants. After removing my pants he laid me down on the seat and did carnal intercourse with me. He penetrated his organ into my anus. This I used to say Galat Kaam. He did this 2 times with me. When he did first time I shouted, then kept ( )+*-,=CD032 4$5 "!$#&%'!$# hand on my mouth and warned me that if I shouted then he will kill me. After that Musafir put his organ into my mouth also. I shouted. Thereafter Musafir again tried to do Galat Kaam with me and penetrated his organ at my backside then I loudly shouted. His hands slipped and after opening the bolt of the door I ran away from the bus without the cloths and sit besides the bus from 2 A.M. to 8 A.M. Bir Singh, HC Mukesh were passing from there. I narrated the incident to them. Then they recorded my statement Ex. PW 5/A bears my signatures at point A. ASI Bir Singh called the photographer after recording my statement. I took the police persons inside the bus and show them the place of incident. After recording my statement police prepared one more paper at my instance and the same is site plan which is Ex. PW 5/B. From the spot constable took me to Deen Dayal Hospital where doctor examined me. From the hospital we came at the place of bus. Seat cover was photographed where incident happened with me. Police took into possession both the seat covers and prepared the seizure memo, same is Ex. PW 4/B and sealed the same. I do not remember the seal."
During his examination-in-chief recorded on 09.01.07, PW 5 Shabin Gwala has deposed that :
"Q. Can you identify Musafir?
Ans. Bilkul. (Definitely).
The witness was asked to turn around and see the 14 Inch ( )+*-,/E1032 4$5 "!$#&%'!$# Thomson T.V. Set placed showing Musafir standing in dock in Court Room. The witness has turned around and see the accused on the T.V. Set and says that this was the person who had committed misdeed (Galat Kaam) with me and his name is Musafir"
" Yehi Aadmi Tha Jisne Mere Saath Kaha gaya Galat Kaam Kiya Tha Aur Issi Ka Naam Musafir Hai"
There is nothing in his cross-examination so as to impeach his creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record as to discredit the testimony of the said witness. His testimony, though sole, is unblemished, convincing and trustworthy. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate him in the case. His testimony is bases on actual observations and the trauma he had undergone, than otherwise. His testimony is further found to be in consonance with the statement made by him u/s 164 CrPC Ex. PW 11/D.
9. The fact that accused Musafir was capable to perform sexual intercourse and due to his committal of carnal intercourse upon PW 5 Shabin Gwala, he (PW 5 Shabin Gwala) suffered injuries has been proved by PW 3 Dr. Ankush Garg, PW 6 Dr. Vineet Kumar Soni and PW 7 Dr. Mukesh The fact that accused Musafir was medically examined, has been proved by PW 6 Dr. Vineet Kumar Soni vide his MLC Mark-A, which has been exhibited as PW 13/A by PW 13 Dr. Rishi.
(3)6*-,@.GF1032 4$5 "!$#&%'!$# The perusal of the MLC of accused Musafir Ex. PW 13/A inter-alia reads that "There is nothing to suggest that person cannot perform sexual intercourse."
PW 3 Dr. Ankush Garg, has proved the MLC of PW 5 Shabin Gwala Ex. PW 3/A, as there were abrasions between scrotum and anus, had referred the patient for surgery examination.
PW 7 Dr. Mukesh, who conducted the surgical examination of PW 5 Shabin Gwala and proved his observations at point X on the MLC Ex. PW 3/A. PW 7 Dr. Mukesh in his examination-in-chief has inter-alia deposed that :
"On local examination of the perennial area there was a small abrasion of about 2x1 cm irregular, superficial at midway between anal opening and scrotum, about 3 cm away from anal opening."
This is nothing in the cross examination of PW 7 Dr. Mukesh as conducted by Ld. Counsel for accused, so as to impeach his creditworthiness. Inspite of incisive cross examination nothing material has been brought out on record as to discredit the testimony of the said witness (PW 7 Dr. Mukesh).
From above, it stands clearly established that PW 5 Shabin Gwala had suffered injuries at midway between anal opening and scrotum, about 3 cm away from anal opening.
10. The fact that PW 5 Shabin Gwala was working on the bus in question on the date of incident and that the said bus was left at the repairing center of accused (3)6*-,@.G.1032 4$5 "!$#&%'!$# Musafir for repair, has been proved by PW 9 Sanjeev Kumar Yadav, owner of the bus. It is pertinent to reproduce the relevant part of the examination-in-chief of PW 9 Sanjeev Kumar Yadav recorded on 02.02.07.
PW 9 Sanjeev Kumar Yadav in his examination-in-chief has inter-alia deposed that :
" I reside at the above give (given) address. I am the registered owner of the bus no. DL-1PB-4424. On 10.04.2006 there was some fault in the engine of my said bus, hence I left the bus at the repairing center of accused present in the Court today Musaifr Mistri, situated in front of Janak Cinema and a young boy whose name I do not remember at present, to whom one other person had left with me for employment just four or five days prior to 10.04.2006, was left by me on the said bus for taking care of the bus while the same was in the workshop of Musafir Mistri."
11. The fact that accused Musafir was arrested at the instance and on identification of victim PW 5 Shabin Gwala, after the incident, has been proved by PW 5 Shabin Gwala, PW 4 Ct. Mukesh and PW 12 ASI Vir Singh. It is pertinent to reproduce the relevant parts of the testimonies of the said witnesses.
PW 5 Shabin Gwala in his examination-in-chief recorded on 09.01.07 has inter-alia deposed that :
"Q. What was done with Musafir by the police?
Ans. Police had gone to the house of Musafir. On
( )+*-,/.H71032 4$5
"!$#&%'!$#
being called, Musafir came out, then I told to the Police that he is Musafir. Police apprehended the accused and took away. Arrest memo Ex. PW 4/C and personal search memo Ex. PW 4/D bears my signatures at point B. Musafir was wearing pant at that time which was seized by the police vide seizure memo Ex. PW 4/E which bears my signature at point B."
" Q. Can you identify Musafir?
Ans. Bilkul. (Definitely).
The witness was asked to turn around and see the 14 Inch Thomson T.V. Set placed showing Musafir standing in dock in Court Room. The witness has turned around and see the accused on the T.V. Set and says that this was the person who had committed misdeed (Galat Kaam) with me and his name is Musafir"
" Yehi Aadmi Tha Jisne Mere Saath Kaha gaya Galat Kaam Kiya Tha Aur Issi Ka Naam Musafir Hai"
PW 12 ASI Vir Singh in his examination-in-chief recorded on 28.03.07 has inter-alia deposed that :
"Thereafter, I alongwith accompanying Ct. and victim reached at RZ-215, Raghu Nagar, Delhi, that is, the residence of accused but at that time, house was locked and one was there. Again, we all the three reached at the residence of accused at about 5.30 pm and at that time, accused present in the court today, Musafir was present there. On the pointing out of victim, he was apprehended, (3)6*-,@.34 032 4$5 "!$#&%'!$# interrogated and was arrested and his personal search was conducted. Arrest memo Ex. PW 4/C, signed by me at point X and personal search memo Ex. PW 4/D, also signed by me at point X."
PW 4 Ct. Mukesh in his cross-examination recorded on 13.02.07 has inter-alia deposed that " The address of accused was told by the victim himself and he had accompanied us to the house of the accused."
Moreover, accused has nowhere disputed his acquaintance with the victim PW 5 Shabin Gwala when he (accused) suggested to PW 4 Ct. Mukesh that there was a money dispute between him (accused) and victim PW 5 Shabin Gwala, which was denied by PW 4 Ct. Mukesh.
The relevant part of the cross-examination of PW 4 Ct. Mukesh recorded on 13.02.07 reads as :
"I do not know whether any dispute regarding Rs. 2500/- between the accused and the victim. It is incorrect to suggest that the accused has been falsely implicated in this case due to dispute of money of Rs. 2500/-."
12. It is settled principle of law that while appreciating evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence of the (3)6*-,@.H:;032 4$5 "!$#&%'!$# given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observations, retention and reproduction differ with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. The Supreme Court in the case of State vs. Wassan Singh- AIR 2981 SC 697 observed :
" Where the witnesses are examined at the trial, 17 months after the incident, such discrepancies in regard to collateral or subsidiary facts of matters of detail occur even in the statements of truthful witnesses, particularly when they are examined depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witness when there is ( )+*-,/.-<>032 4$5 "!$#&%'!$# general agreement and consistency in regard to the substratum of the prosecution case." ( Mahmood vs. State 1991 RLR 287 )
13. The prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is salutary method of appreciation of evidence in criminal cases, as has been laid down by the Supreme Court in Krishna Pillai vs. State AIR 1981 SC 1237. In the deposition of witnesses there are always normal discrepancies, however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at time of occurrence and the like. ( Mahmood vs. State 1991 RLR 287 ).
14. Ld. Counsel for the accused submitted that there are major contradictions in the statements of PW 5 Shabin Gwala, PW 9 Sanjeev Kumar Yadav, PW 12 ASI Vir Singh and PW 4 Ct. Mukesh.
(i) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his examination-in-chief recorded on 06.01.2007 has deposed that he had come to Delhi (3)6*-,@.&?>032 4$5 "!$#&%'!$# 4/5 months prior to incident. While PW 9 Sanjeev Kumar Yadav, owner of the bus, in his examination-in-chief has deposed that he (PW 5 Shabin Gwala) was kept in employment just four to five days prior to 10.04.06 (the date of incident).
I have carefully analysed the material on record. On careful perusal and analysis, I do not find any contradiction in the testimonies of PW 5 Shabin Gwala, PW 9 Sanjeev Kumar Yadav on the said aspect and the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident. It appears that Ld. Defence counsel has misread the evidence. What PW 5 has deposed in his examination-in-chief recorded on 06.01.2007 is that he had come to Delhi four / five months from Chandigarh, prior to the incident and was working at the bus in question 15 days prior to the incident. What PW 9 Sanjeev Kumar Yadav has deposed is that he (PW 5 Shabin Gwala) was kept in employment just four to five days prior to 10.04.2006.
It is pertinent to reproduce the relevant part of the testimony of PW 5 Shabin Gwala as well as of testimony of PW 9 Sanjeev Kumar Yadav.
PW 5 Shabin Gwala in his examination-in-chief recorded on 06.01.2007 has deposed that :
Q. 1. On which date this incident happened with you? Ans. This incident happened with me during the night of 10-11/04/06 at about 1/1.30 A.M. Q. 2. What you were doing at that time?
Ans. Before 4-5 months I came from Chandigarh to Delhi for doing labour work. I used to clean the bus and also used to sleep in the bus.
(3)6*-,@.I5B032 4$5 "!$#&%'!$# Q. 3. In which bus you were doing the work of cleanliness at the time of incident?
Ans. I was doing work in bus no. DL-1P-B-4424.
XXX XXX XXX XXX
XXX XXX XXX XXX
Q. 10. From how many days before the incident you were doing the work on the bus?
Ans. 15 days before the incident I was doing the work on the bus. PW 9 Sanjeev Kumar Yadav in his examination-in-chief has inter-alia deposed that :
" I reside at the above give (given) address. I am the registered owner of the bus no. DL-1PB-4424. On 10.04.2006 there was some fault in the engine of my said bus, hence I left the bus at the repairing center of accused present in the Court today Musaifr Mistri, situated in front of Janak Cinema and a young boy whose name I do not remember at present, to whom one other person had left with me for employment just four or five days prior to 10.04.2006, was left by me on the said bus for taking care of the bus while the same was in the workshop of Musafir Mistri."
(ii) Ld. Defence counsel stated that PW 5 Shabin Gwala in his testimony has deposed that he closed the doors and windows of the bus and one window pane of the conductor side was broken and the accused came from there.
While PW 12 ASI Vir Singh in his cross-examination has deposed that (3)6*-,@.-CD032 4$5 "!$#&%'!$# "No glass of any of window of the bus was in broken condition."
Whereas PW 4 Ct. Mukesh in his cross-examination has deposed that he does not remember whether any glass of the bus was broken at that time.
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala, PW 12 ASI Vir Singh and PW 4 Ct. Mukesh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. Moreover, it is matter of perception of a witness which differs. Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observations, retention and reproduction differ with individuals. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(iii) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination recorded on 09.01.2007 has deposed that he used to collect the money from the daily staff. While PW 9 Sanjeev Kumar Yadav in his cross-examination has deposed that 'The Chhotu Boy was not supposed to collect any money from the passengers."
I have carefully perused and analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 9 Sanjeev Kumar Yadav as to go to the root of the (3)6*-,@.GE1032 4$5 "!$#&%'!$# case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(iv) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination recorded on 09.01.2007 has deposed that the bus used to ply from Vikas Puri to Connaught Place. While PW 9 Sanjeev Kumar Yadav in his reexamination by Ld. APP has deposed that :
" The said bus used to carry school children and some other passengers in the morning to and fro from their residence to destination and in the evening the said bus used to carry the employees of call centers at District Center."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 9 Sanjeev Kumar Yadav as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(v) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross-
( )+*-,97&F1032 4$5 "!$#&%'!$# examination recorded on 09.01.2007 has deposed that he was paid Rs. 1500/-. While PW 9 Sanjeev Kumar Yadav in his cross-examination has deposed that "No remuneration regarding the services of the said boy Chotu were settled."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 9 Sanjeev Kumar Yadav as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(vi) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination has deposed that "There are many shops situated near Janak Cinema", while PW 12 ASI Vir Singh in his cross-examination has deposed that "There is no shop near the spot."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 12 ASI Vir Singh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
( )+*-,97&.1032 4$5 "!$#&%'!$#
(vii) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination has deposed that "The distance between the place of incident and of the house of Musafir is about 3 KM", While PW 12 ASI Vir Singh in his cross- examination has deposed that "The distance between the spot and the house of accused is about 1.25 KM to 1.5 KM."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 12 ASI Vir Singh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(viii) Ld. Defence counsel submitted that PW 5 Shobin Gwala in his cross- examination has deposed that Rs. 15/- was the bus fare taken per passenger at morning and in the evening Rs. 13/- was charged from Vikas Puri to Connaught Place. While PW 9 Sanjeev Kumar Yadav in his cross-examination has deposed that "No money was given to us (PW 9) by the passengers directly."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be material contradiction in the testimonies of PW 5 Shabin Gwala and PW 9 Sanjeev Kumar Yadav as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the (3)6*-,87H71032 4$5 "!$#&%'!$# evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(ix) Ld. Defence counsel submitted that in the statement u/s 164 CrPC Ex. PW 11/D, PW 5 Shabin Gwala has deposed that :
"On that date, it became evening and both the bus owner (Sanjeev Kumar Yadav) and Musafir had drunk together." (Uske Bad Bus Malik Aur Musafir Ne Sharab Pee)."
While PW 9 Sanjeev Kumar Yadav in his cross-examination has deposed that " I had never taken liquor in my life".
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala and PW 9 Sanjeev Kumar Yadav as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(x) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination has deposed that his cloths were seized by the police on the spot and police has bought him a green colour pant to wear. While PW 12 ASI Vir Singh in his ( )+*-,97H4 032 4$5 "!$#&%'!$# cross-examination has deposed that "When the garments of the victim were seized, he put on his clothes which were there in a bag lying in the said bus." Whereas PW 4 Ct. Mukesh in his cross-examination has deposed that "IO had arranged some cloths for the victim boy to be replaced by the worn cloths."
I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala, PW 4 Ct. Mukesh and PW 12 ASI Vir Singh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(xi) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination has deposed that 8/10 vehicles were parked at the spot. While PW 12 ASI Vir Singh in his cross-examination has deposed that :
" There were some other buses which were at a distance of about ½ furlong from the bus in question but there was no vehicle nearby the bus in question."
Whereas PW 4 Ct. Mukesh in his cross-examination has deposed that :
" There were 4-5 other vehicles (all were buses) standing near the bus where the incident had taken place."
( )+*-,97-:;032 4$5 "!$#&%'!$# I have carefully analysed the material on record. On careful perusal and analysis, I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala, PW 4 Ct. Mukesh and PW 12 ASI Vir Singh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
(xii) Ld. Defence counsel submitted that PW 5 Shabin Gwala in his cross- examination recorded on 09.01.2007 has deposed that :
"Q. 21. How you came to know the address of Musafir and who told you the address of his house?"
"In the morning the conductors of the nearby buses told the address of Musafir. They used to live near the house of Musafir. I do not know the name of the person who has told the address of residence of Musafir. Police personnel had asked the address of Musafir.
While PW 12 ASI Vir Singh has deposed that address of accused was told to him by the victim. Whereas PW 4 Ct. Mukesh in his cross-examination recorded on 13.02.2007 has deposed that " The address of accused was told by the victim himself and he had accompanied us to the house of the accused."
I have carefully analysed the material on record. On careful perusal and analysis I find that PW 5 Shabin Gwala in his cross-examination has specifically deposed in Question No. 21, as reproduced herein above, that Police personnel had (3)6*-,87-<>032 4$5 "!$#&%'!$# asked the address of Musafir.
His (PW 5) testimony has been corroborated by PW 12 ASI Vir Singh, who in his examination-in-chief recorded on 28.03.07 has deposed that :
"Thereafter, I alongwith accompanying Ct. and victim reached at RZ-215, Raghu Nagar, Delhi, that is, the residence of accused but at that time, house was locked and one was there. Again, we all the three reached at the residence of accused at about 5.30 pm and at that time, accused present in the court today, Musafir was present there. On the pointing out of victim, he was apprehended, interrogated and was arrested and his personal search was conducted. Arrest memo Ex. PW 4/C, signed by me at point X and personal search memo Ex. PW 4/D, also signed by me at point X."
I do not find it to be a material contradiction in the testimonies of PW 5 Shabin Gwala, PW 4 Ct. Mukesh and PW 12 ASI Vir Singh as to go to the root of the case, at the most it is a minor contradiction on the fringe without materially effecting the credibility of the evidence. At the cost of repetition, the fact remained established that PW 5 Shabin Gwala was working on the bus of PW 9 Sanjeev Kumar Yadav on the date of incident where the incident occurred.
Further, it is admitted case of the accused that he was knowing PW 5 Shabin Gwala prior to the incident and was having a dispute of money with him (PW 5) which is clear as to what has been suggested to PW 4 Ct. Mukesh during his cross-examination by the Ld. Counsel for accused, who in his cross-examination recorded on 13.02.07 has deposed that :
( )+*-,97 ?>032 4$5 "!$#&%'!$# "I do not know whether any dispute regarding Rs. 2500/- between the accused and the victim. It is incorrect to suggest that the accused has been falsely implicated in this case due to dispute of money of Rs. 2500/-."
15. Ld. Defence counsel submitted that PW 5 Shabin Gwala is under the influence of tutoring as he remained in the Police Station (PS) till his deposition in the court and same is admitted by the witness.
I have carefully perused and analysed the material on record. It is pertinent to reproduce the relevant part of the cross-examination of PW 5 Shabin Gwala recorded on 09.01.2007.
"Q. 38. After the incident, when you was brought to the court, did the police told you as to how to make your statement before the Judge and you made your statement as tutored by the police? Ans. The police has not told me how to make my statement. I had stated what was happened to me. No one had tutored me. Q. 39. On 09.12.06, you came to the court with police and the police has told you the manner in which you have to give your statement? Ans. I came to the court with the police. But nobody has tutored me.
Q. 40. On 6th Jan. 2007 also when you came to the court you have been tutored by the police on the previous day in police station, and on the same day also?
Ans. No Sir."
The said plea is found to have no substance as, undisputably, PW 5 ( )+*-,97 5B032 4$5 "!$#&%'!$# Shabin Gwala has been cross-examined at length and his testimony has been tested on the anvil of cross examination and at the cost of repetition, there is nothing in his statement to suggest that he was under the influence of any tutoring or that he had deposed on a tutored statement. Had it been a tutored testimony then he would have deposed otherwise and there would not have been any contradictions in the testimonies of PW 5 Shabin Gwala, PW 9 Sanjeev Kumar Yadav, PW 12 ASI Vir Singh and PW 4 Ct. Mukesh as alleged by the Ld. Defence Counsel. PW 5 Shabin Gwala has deposed as to what he has observed and the trauma he had undergone.
16. Ld. Defence counsel also submitted that TIP of accused was not conducted. I have carefully perused and analysed the material on record. On careful perusal and analysis of the entire material on record, I find no substance in the plea so raised by the Ld. Counsel for accused. It is pertinent to reproduce the relevant part of the examination-in-chief of PW 5 Shabin Gwala recorded on 09.01.2007.
"Q. What was done with Musafir by the police?
Ans. Police had gone to the house of Musafir. On being
called, Musafir came out, then I told to the Police that he is Musafir. Police apprehended the accused and took away. Arrest memo Ex. PW 4/C and personal search memo Ex. PW 4/D bears my signatures at point B. Musafir was wearing pant at that time which was seized by the police vide seizure memo Ex. PW 4/E which bears my signature at point B."
"Q. Can you identify Musafir?
Ans. Bilkul. (Definitely).
( )+*-,97GCD032 4$5 "!$#&%'!$# The witness was asked to turn around and see the 14 Inch Thomson T.V. Set placed showing Musafir standing in dock in Court Room. The witness has turned around and see the accused on the T.V. Set and says that this was the person who had committed misdeed (Galat Kaam) with me and his name is Musafir"
" Yehi Aadmi Tha Jisne Mere Saath Kaha gaya Galat Kaam Kiya Tha Aur Issi Ka Naam Musafir Hai"
His (PW 5) testimony has been corroborated by PW 12 ASI Vir Singh, who in his examination-in-chief recorded on 28.03.07 has deposed that :
"Thereafter, I alongwith accompanying Ct. and victim reached at RZ-215, Raghu Nagar, Delhi, that is, the residence of accused but at that time, house was locked and one was there. Again, we all the three reached at the residence of accused at about 5.30 pm and at that time, accused present in the court today, Musafir was present there. On the pointing out of victim, he was apprehended, interrogated and was arrested and his personal search was conducted. Arrest memo Ex. PW 4/C, signed by me at point X and personal search memo Ex. PW 4/D, also signed by me at point X."
Further, it is the admitted case of the accused that he was knowing PW 5 Shabin Gwala prior to the incident and was having a dispute of money with him (PW 5) which is clear as to what has been suggested to PW 4 Ct. Mukesh during his cross-examination by the Ld. Counsel for accused, who in his cross-examination has ( )+*-,97&E1032 4$5 "!$#&%'!$# deposed that :
" I do not know whether any dispute regarding Rs. 2500/- between the accused and the victim. It is incorrect to suggest that the accused has been falsely implicated in this case due to dispute of money of Rs. 2500/-."
In the circumstances, the plea of non holding of TIP of accused, as raised by the Ld. Counsel for the accused is of no assistance and falls flat on the ground. It appears that such a plea has been raised by the accused in order to escape and to save his skin from the clutches of law.
17. Ld. Counsel for the accused submitted that there are two sets of evidence, each one of which contradicts the other, on one side there is evidence of PW 5 Shobin Gwala and on the other side there is evidence of PW 4 Ct. Mukesh, PW 9 Sanjeev Kumar Yadav and PW 12 ASI Vir Singh.
As discussed herein above in detail, there is no substance in the said submission of the Ld. Counsel for the accused. Such a plea so raised is totally devoid of legal matrix and stands rejected.
18. Ld. Counsel for the accused has also referred to case laws; Harchand Singh & Anr. Vs. State of Haryana, 1974, Cr. L. J. 366 on the point that there are (3)6*-,84 F1032 4$5 "!$#&%'!$# two sets of evidence, each one of which contradicts the other, Arbind Singh Vs. State of Bihar, 1994 Cr. L. J. 1227 on the aspect of apparent traces of tutoring. He has also referred the case titled Chhagan Dame Vs. The State of Gujrat, 1994 Cr. L. J. 56 on the aspect of Child witness under influence of tutoring. He has referred the case titled Madkami Baja Vs. The State, 1986 Cr. L. J. 433 on the point that defence need not to prove why the accused was implicated and has referred to case titled Rajender Kumar Vs. State, 1983 ILR- 223 (Delhi) (TIP) on the aspect that when a witness refused to participate in the TIP and witness identified the accused in the court, his evidence is of no use.
I have carefully and meticulously gone through the said case laws. With due respect, there is no quarrel as to what has been held in the cases referred to by the Ld. Counsel but the said cases referred to are of no assistance to the accused, in view of as to what that has been proved and established on the record, as discussed in detail herein-above.
In view of the above, I am of the considered opinion that as far as the involvement of the accused Musafir in the commission of offence is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Musafir beyond reasonable doubt and there is no room for hypothesis, consistent with that of innocence of the accused. I, therefore hold the accused (3)6*-,84 .1032 4$5 "!$#&%'!$# Musafir guilty for the offences punishable U/s 377/506(II) IPC and convict him thereunder.
Announced in the open Court This on the 12th Day of June, 2008.
(Two spare copies attached) (MAHESH CHANDER GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE ROHINI : DELHI.
( )+*-,94&71032 4$5 "!$#&%'!$# IN THE COURT OF SHRI MAHESH CHANDER GUPTA ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
State Vs Musafir FIR No.: 206/06 P.S. : Janak Puri U/s 377/506 IPC ORDER ON SENTENCE:-
Ld. Counsel Sh. Pradeep Singh for the accused Musafir, on the quantum of sentence, stated that he is 40 years of age and is a poor person and works as a motor mechanic and is having aged father to look after and his mother has expired and is having four children, two sons aged 11 years and 8 years and two daughters aged 5 years and 3 years and is the sole bread earner in the family. He stated that his wife is somehow managing the family affairs by doing the sweeping work in other houses and education of his children is suffering. He stated that he was arrested on 11.04.2006 and is running in JC since 12.04.2006 and is not previously involved in any other case nor is a previous convict and deserves leniency by sentencing him to undergo imprisonment for the period already undergone by him.
While Sh. Praveen Kumar Samadhiya, Ld. APP stated that the accused be dealt with strictly and substantive punishment be given to deter him from committing the same offence in future. He stated that he has committed very serious and grave offence and has spoiled the future of a young boy. Force was used upon the victim by pressing his mouth and was threatened to cut and throw away (Kaat Ke (3)6*-,84G4 032 4$5 "!$#&%'!$# Fank Dunga) and he was physically and mentally tortured. The offence was committed with a premeditated mind. Besides causing physical torture he has also adversely affected the psychology of the victim, a young boy. He referred to the case Emperor Vs. Mahomed Yousif, AIR 1933 Sind 87, in which it was held that the offence of sodomy is one of those offences in which there can hardly be extenuating circumstances, and therefore call for deterrent punishment. He also referred to the case State of Madhya Pradesh Vs. Ghanshyam Singh AIR 2003 SC 3191 in which inter-alia held that :
" In view of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence.
Undue sympathy to impose inadequate sentence would no more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. In (3)6*-,84&:;032 4$5 "!$#&%'!$# the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal."
I have heard the Ld. APP for the State and the Ld. Counsel for the accused Musafir on the quantum of sentence. The accused has not only violated the victim's privacy and personal integrity but inevitably caused serious psychological as well as physical harm in the process. The carnal intercourse against the order of nature is not merely a physical assault, it is often destructive of the whole personality of the victim. It degrades the very soul of the helpless victim.
Apart from being a dehumanizing act, it is an unlawful intrusion on the right of privacy and sanctity of a victim. It is a serious blow to victim's supreme honour and offends victim's self esteem and dignity, it degrades and humiliates the victim and where the victim is a helpless innocent child or minor, it leaves behind a traumatic experience. It destroys the entire psychology of the victim and pushes him into deep emotional crises. Accused in order to gratify his beastly lust and passions ( )+*-,94 <>032 4$5 "!$#&%'!$# committed carnal intercourse and criminally intimidated the victim (PW 5 Shabin Gwala) and was determined to do so at all events despite resistance. He penetrated his male organ three times into the anus of the victim and had also put his male organ into his (victim) mouth. The pain of victim which he was undergoing during the performance of the beastly action which was translated into the shouts of victim, did not move the accused in the act of the shame and lust.
PW 5 Shabin Gwala in his examination-in-chief has inter-alia deposed that :
" I was sleeping on the bus of the roof. It was 1-1.30 A.M. Musafir was the mechanic of the bus. Bus broke down. At 1.30 A.M. Musaifr came on the roof of the bus and started 'Chhedkhani'. After saving from him I came inside the bus and closed the doors and windows of the bus. One windowpane of the bus was in broken condition and from that window he came inside. He had 2-3 talks with me and thereafter forcibly opened my pants. When I caught hold his hand then he caught hold my both hands. After catching hold my hands he opened my pants. After removing my pants he laid me down on the seat and did carnal intercourse with me. He penetrated his organ into my anus. This I used to say Galat Kaam. He did this 2 times with me. When he did first time I shouted, then kept hand on my mouth and warned me that if I shouted then he will kill me. After that Musafir put his organ into my mouth also. I shouted. Thereafter Musafir again tried to do Galat Kaam with me and penetrated his organ at my backside then I loudly shouted. His hands slipped and after opening the bolt of the door I ran away from the bus without the cloths and sit besides the bus from 2 A.M. to 8 A.M."
Having regard to all the facts & circumstances of the case, serious nature of the offences, I am of the considered opinion that ends of justice can be met by sentencing the accused Musafir to undergo Rigorous Imprisonment (RI) for a period (3)6*-,84I?>032 4$5 "!$#&%'!$# of four years and to pay a fine of Rs. 10,000/- default of payment of fine to undergo Rigorous Imprisonment (RI) for six months u/s 377 IPC. He is further sentenced to undergo Rigorous Imprisonment (RI) for a period of two years and to to pay a fine of Rs. 5000/- in default of payment of fine to undergo Rigorous Imprisonment (RI) for six months u/s 506 (II) IPC. Both the said sentences shall run concurrently. The period already undergone by the accused during the inquiry / investigation / trial of the case shall be set off u/s 428 CrPC. The fine, if realised be given to the victim (PW 5 Shabin Gwala) which shall be utilized for his welfare. Announced in the open Court This on the 05th day of July, 2008.
(Two spare copies attached) (MAHESH CHANDER GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE ROHINI : DELHI.
(3)6*-,84$5B032 4$5