Delhi District Court
State vs . Ram Bhawan on 20 May, 2014
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST) 07, SAKET COURTS, DELHI
STATE Vs. RAM BHAWAN
FIR No: 272/2011
U/s: 377/506 IPC
PS: K.M. Pur
JUDGMENT
a The Sl. No. of the case : 35/01/2014
b The date of commission : 03.11.2011
c The date of Institution of the case : 13.01.2012
d The name of complainant : Smt. Raj Kumari
e The name of accused : Ram Bhawan
S/o Sh. Satnarain
R/o Kalu Ki Jhuggi
adjacent to House
No. E215, East
Kidwai Nagar, New Delhi.
f The offence complained of : 377/506 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 26.04.2014
i The final order : Convicted
j The date of judgment : 20.05.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
1 Vide this judgment I will decide the case filed by the prosecution against the accused herein under sections 377 & 506 Indian Penal Code (hereinafter IPC). The facts of the case are that accused on 03.11.2011 (hereinafter day of the FIR No. 272/11 Page 1 of 29 incident) at 02.30 pm ( hereinafter time of incident) in the staircase of house no. 204 and 206 East Kidwai Nagar, New Delhi ( hereinafter spot of incident) within the jurisdiction of P.S. Kotla Mubarakpur, voluntarily and against the wishes of the victim Master Abhay S/o Sh. Kishan lal had carnal intercourse against the order of nature with the victim Master Abhay S/o Kishan Lal and also threatened to kill the abovesaid victim and thereby committed an offence punishable u/s 377 & 506 IPC. Section 377 IPC provides punishment for voluntarily having carnal intercourse against the order of nature with any man, woman or animal. Section 506 IPC provides punishment for committing the offence of criminal intimidation.
2 Charge was framed against the accused under above said provisions on 03.02.2012. The accused has pleaded not guilty for the same and has claimed trial.
3 Prosecution has examined as many as thirteen witnesses.
PW1 is the victim Master Abhay who was minor and for ascertaining that the witness was capable for giving statement before the court some preliminary formal questions were being asked from him and thereafter he has been examined as PW1. PW1 in his testimony has stated that on 3.11.2011, accused whom he correctly identified had taken him to the roof of the quarter of one boy namely L.P and put off his underwear (nikkar) and committed carnal intercourse ( gand mari ) with him and thereafter he went to the park in crying condition and told about the same to his mother. His mother informed about the same to his father and other relatives and a call was also made to 100 number by FIR No. 272/11 Page 2 of 29 his sister. Police came at his house and took him to the hospital where the victim was medically examined and police has also recorded his statement to this effect.
On being cross examined, PW1 has further deposed that incident took place on 03.11.2011 at about 3 pm when he was playing outside his house and one person namely Ram Bhawan who was maternal uncle ( Mama) of Tushar came to him and he asked him " Tu chal mere saath main tumhe kuchh paise deta hun". Thereafter he took him to the stairs between the house No. E204 to E206 and committed carnal intercourse with him and gave Rs. 6/ to him. PW1 has further deposed that accused told him to purchase a toffee and also told that if he told this incident to anyone he would kill him. Thereafter he went behind the park and was feeling pain in the part/organ (anus). PW1 has further stated that he came to the court and his statement was recorded in a room where only Bade Saheb was present.
4 PW2 Ms. Raj Kumari is the mother of the victim Abhay and deposed about the fact which the victim has disclosed her and has also deposed about recording of her statement by the police, arresting and conducting personal search of accused vide Ex. PW2/ B and C and seizing of Rs. 6/ which was given to the victim by the accused. She has also correctly identified the accused as well as the case property envelope and nikker therein belonging to victim when the same were produced before her during recording of her statement as Ex. P1 & Ex. P3 respectively and one rupee coin and currency note of Rs. 5/ as Ex. 2 FIR No. 272/11 Page 3 of 29 and 1 respectively.
5 PW3 Ct. Satish Kumar is the witness who took the victim to the AIIMS Hospital for medical examination and has also proved the registration of FIR on the rukka prepared by the IO as well as the witness of documents prepared by the IO during the investigation of this case like seizure of sample of accused and victim for sending to FSL as well as seizure of case property in the present case, arrest memo, personal search memo, disclosure, statement, collected FSL result which are FSL Ex. 1 to 11 and duly exhibited in the evidence of PW3 Ct. Satish.
6 PW4 HC Raj Kumar is the witness who reached at the spot initially on receiving DD No. 12A regarding quarrel and where he met the mother of the victim who told about that her son was being sodomized by the accused, who thereafter took the victim and accused to AIIMS Hospital where he met SI Sunil Kumar of concerned PS and handed over the custody of accused to him. 7 PW5 Retired SI Abrar Ahmad is a PCR official and deposed about reaching to the spot on a call regarding quarrel from East Kidwai Nagar, where he met with one lady Ms. Raj Kumari who told him that his son Abhay has been raped by Ram Bhawan. PW5 has further deposed that he took the said lady, victim and accused to the AIIMS hospital and handed over the accused and victim to the doctor there in the presence of mother of victim. FIR No. 272/11 Page 4 of 29 8 PW6 is Ct. Parvender, who deposed about depositing of 12 samples to the Biology Department vide RC No. 122/21/2011.
9 PW7 is Ct. Kul Tarun, who deposed about taking the exhibit No. 13 and 14 from the Malkhana and depositing the same to FSL Rohini vide RC No. 128/21/2011.
10 PW8 is HC Hariom, who being posted as Duty Officer on the date of incident has deposed about registration of the FIR in the present case. 11 PW9 is Dr. Asit Kumar Sikary, Jr. Resident, who deposed about medical examination of the victim and accused, preparing their MLC and handing over the anal swab, perianal swab, salivary stain swab with control swab and under garments of the victim with sample seal to the police. PW9 has also deposed about handing over penile swab with control blood in guaze and blood sample 5 ml in Naf and undergarments of the accused with sample seal to the police. 12 PW10 is SI Sunil, who is IO of the case and deposed about the investigation carried out by him in the present case i.e preparation of rukka, seizure memo of exhibit in this case of samples collected from victim and the accused, collection of their MLC, seizure of currency note, preparation of personal search and arrest memo of accused, recording of disclosure statement FIR No. 272/11 Page 5 of 29 of accused, preparation of site plan, preparation of pointing out memo at the instance of accused, depositing the case property in the Malkhana sending FSL samples to Biology Department FSL and Chemistry Department FSL, moving the application for recording of 164 Cr.P.C statement of the victim and filing the chargesheet after completion of investigation.
13 PW11 is the HC Kapoor Singh, who joined the investigation in the present case and has deposed the fact as narrated by PW4 HC Raj Kumar. 14 PW12, is Sh. Sandeep Garg, Ld. M.M, who deposed about recording of statement of victim u/s 164 Cr.P.C.
15 PW13 is Naresh Kumar, Sr. Scientific Officer (Biology)FSL Rohini and has deposed about examination of exhibits deposited in the FSL in the present case and deposed that on biological examination blood was detected on Ex. 6 and Ex. 11 and blood could not be detected on Ex. 1,2,3,5,8 and 10. Human semen was detected on Ex. 1,3,5 & 10 and semen could not be detected on Ex. 2,4,8 & 9 and saliva was detected Ex. P2 and has exhibited his biological report vide Ex. PW13/A. PW13 has also deposed about examination of aforesaid exhibits serologically and prepared the report vide Ex. PW13/A. All the witnesses have been cross examined at length by the defence counsel except witness PW5, 7, 8, 11 & PW12 despite opportunity given.
FIR No. 272/11 Page 6 of 29 16 The various documents prepared by the IO and the officials of the FSL and the doctors duly proved by the concerned witnesses in evidence are given below in a tabular form for the sake of easy reference.
Sl. Description of Proved by Exhibits/ FSL
No. documents signed at Exhibits
point
1 Complaint PW2 Ms Raj Kumari PW2/A
( mother of victim Master "A"
Abhay/PW1
2 Arrest and Personal PW2 . PW2/B
search memo of accused "A"
3 Rs. 6/ PW2 PW2/B
"A"
4 Currency note of Rs. 5/ PW2 P1 and
and coin Rs. 1/ P2
5 Nikkar and Envelope PW2 P3 and
no. 3 P4
6 Cotton wool swab from PW3 Ct. Satish Kumar P5 and 1
victim and envelope no. P6
1
Cotton wool swab on a PW3 P7 and
stick labelled as P8
'Salivary stain swabs'
7 and envelope no. 2 2
FIR No. 272/11 Page 7 of 29
8 One Cotton wool swab PW3 P9 and 4
described as anal swab P10
from victim and
Envelope no. 4
9 Gauze , cloth piece PW3 P11 and 5
having brown stains P12
from the victim and
Envelope no. 5
10 Damp cotton wool swab PW3 P13 and 6
described as penile P15
swab taken from
accused and Envelope
no. 6
11 Two cotton wool swab PW3 P16 and 8
described as "Control P17
swab" taken from
accused and Envelope
no. 8
12 Cotton wool swab PE3 P18 and 9
belonging to the accused P19
and envelope No. 9
13 One underwear , cotton PW3 P20, 10
pad belonging to P21 and
accused and Envelope P22
no. 10
14 One Gauze having PW3 P23
brown stained/ blood and P25
stained, cloth piece
belonging to accused
and Envelope no. 11 11
FIR No. 272/11 Page 8 of 29
15 One test tube containing PW3 P26 and
blood sample for alcohol P27
analysis in a envelope
16 Copy of FIR PW8 HC Hariom PW8/A
"A"
17 Endorsement on rukka PW8 PW8/B
"A"
18 MLC of Victim PW9 Dr. Asit Kumar PW9/A
Sikary "A"
19 Sealed parcel containing PW9 PW9/B
anal swab, perianal "A"
swab, salivary stain
swab with control swab
and under garments of
victim
20 MLC of accused PW9 PW9/C
"A"
21 Rukka PW10 SI Sunil PW10/A
"X"
22 Site plan PW10 PW10/B
"X"
23 Pointing out memo PW10 PW10/C
"X"
24 Application for PW12 Sh. Sandeep Garg, PW12/A
recording of statement M.M. New Delhi
of victim/PW1 u/s 164
Cr.P.C
25 Proceeding for PW12 PW12/B
recording of statement "
u/s 164 Cr.P.C A,B,C,D
, & E"
FIR No. 272/11 Page 9 of 29
26 Application of IO for PW12 PW12/C
providing copy of "F"
statement u/s 164 Cr.P.C
27 Biological report PW13 Sh. Naresh Kumar, PW13
Sr. Scientific Officer "A &
(Biology) A1"
28 Serological detailed PW13 PW13/B
report "A"
17. Statement of accused was recorded U/s 281/313 Cr.P.C., wherein accused took the plea that nothing has happened as alleged in this case and he has nothing to say about this case. He has further deposed that he did not want to lead any evidence in his defence.
18. I have heard Ld. APP for the State, Ld. Defence Counsel, and gone through case file very carefully.
19. The arguments of Ld. APP for the State are that the case against the accused is proved beyond reasonable doubt on the testimonies of the prosecution witnesses. There is a very credible evidence deposed by the witnesses in the court which proves that the accused had carnal intercourse with the alleged victim from the testimony the victim PW1 and that of his mother who deposed as PW2 as well as the medical/FSL report showing presence of the semen on Nikkar of the victim Ex. P3, MLC Ex. PW9/A of the victim showing that there was insertion of penis or penis like object in the anal canal which is very FIR No. 272/11 Page 10 of 29 likely and the local examination of the victim stating that there was pain and tenderness in the anal canal of victim and insertion of finger was painful. MLC Ex. PW9/C of the accused shows that accused is capable of performing of sexual intercourse and that accused had the smell of alcohol. Hence, both the oral testimony as well as documentary/medical evidence fully corroborating the testimony of the witnesses who have identified the accused in the court as the culprit in the offence fully proves the case u/s 377 IPC as well as u/s 503 read with section 506 (II) IPC. Contradictions, if any are very minor in nature. Hence the case against the accused is proved beyond reasonable doubts and the accused should be convicted.
20. As per the defence counsel there are various lacunas in the prosecution evidence because of which the benefit of doubt should be given to the accused and he should be acquitted. The arguments of the Ld. Defence Counsel are dealt with as follows:
(i) PW1 Master Abhay and PW2 Ms. Raj Kumar, mother of PW1 were allowed by the court to be recalled and reexamined u/s 311 Cr.P.C but they could not be examined as they were untraceable. In view of the same it is clear that the accused could not be convicted on the basis of incomplete evidence.
I do not agree with the said submission of the Ld. Defence Counsel, because in the order dated 5.9.2013 whereby permission to recall and reexamine the said witness was given was also subject to the condition of the witnesses being traced. Moreover, Section 33 of Evidence Act inter alia FIR No. 272/11 Page 11 of 29 provides that " The evidence given by a witness in a later stage of same judicial proceedings where the witness cannot be found is relevant provided the proceedings between the same parties is going on having the same issues where also the adverse party has right and opportunity to cross examine the witnesses." Hence it is clear that where despite sufficient opportunity for cross examination accused did not avail the right and later on the witness could not be traced, benefit of the same cannot be given to the accused. In the present case accused was given sufficient opportunity to cross examine the material witnesses spreading over various date of hearings like on 17.2.12 ( whereon accused refused the services of LAC) 10.05.12 and 21.6.12 and the cross examination has been done by the defence counsel which by no means is a very brief cross examination. Accused was himself responsible for delay by seeking adjournment on various dates. On some occasions the accused stated that he does not want the services of LAC which was without reason as later on he again availed the services of LAC. Hence, it cannot be said that in the present case the evidence of the prosecution was left incomplete.
(ii) Next argument of the Ld. Defence Counsel is that PW9 Dr. Asit Kumar Sikary who prepared the MLC and the samples from the victim and the accused vide Ex. PW9/B has given the opinion that the injury on the victim could also be possible if the person falls on a cone like object and it is inserted into the anal canal. It nowhere says that injury on victim was inflicted by accused.
However, this argument in my view is a very casual argument FIR No. 272/11 Page 12 of 29 totally detracting from the seriousness of the matter. The accused has been identified as the culprit who handed over Rs. 6 which is Ex. PW2/B to the victim after committing the wrongful act of carnal intercourse against the order of nature and the evidence of witnesses is duly corroborated by the medical evidence and FSL opinion which will be discussed in para 24 (i) of this judgment. In these circumstances the onus is on the accused to show by contradiction in the prosecution evidence or by his own evidence that he did not do or commit the carnal intercourse with the victim. Just on a far fetched imaginative presumption of accused he cannot be given benefit of doubt.
(iii) Further the Ld. Defence Counsel argues that the FSL has not given the exact finding regarding blood group whether it belongs to accused or not.
However, this argument totally runs counter to the evidence on record as per which the accused has been identified in the court as the one who committed the carnal intercourse and he was immediately arrested after the wrongful act, there was no delay in the FIR and the subsequent actions on part of PW1, PW2 and the police officials. Accused is not proved to be anywhere else at the time of commission of crime. There was human semen and blood on the exhibits as abovesaid. Hence this argument of the Ld. Defence counsel to give benefit of doubt to the accused is again not accepted.
(iv) There is no injury mark on the victim as stated by the defence counsel.
However, it is clear from the MLC of the victim which was FIR No. 272/11 Page 13 of 29 conducted only about 1 ½ hour after the committing of crime that on examination of the victim there was a tear and wed shaped present over the anal region extending into the canal base out side the anal canal. Further it was observed that the insertion of finger was painful. Final opinion of PW9 was that the insertion of penis or penis like object into the anal canal was likely. Hence, this argument is also overruled.
Relevant law:
21 Ingredients for proving the offence u/s 377 ( Unnatural offence) against the accused are as follows:
(I) Accused had carnal intercourse. Such intercourse was with any other man, woman or animal.
(II) Such intercourse was done in a manner which is against the order of nature.
(III) Such intercourse was voluntary on part of the accused.
In the explanation to section 377 IPC , it is also provided that "
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Punishment: The punishment under this provision is life imprisonment or imprisonment of either description for a term which may extend to 10 years and fine.
The ingredients of Section 503 ( criminal intimidation) so far as relevant to this case are :
1 Threatening another with injury to his person. FIR No. 272/11 Page 14 of 29 2 Threat is issued with the intention to cause alarm or to cause that another to omit to do any act which that person is legally entitled to do.
Punishment: The punishment under part II section 506 IPC (relevant portion) is that if the criminal intimidation is to cause death, convict shall be punished with imprisonment of either description which may extend to 7 years or with fine or both.
22 Section 6 and 156 Evidence Act. :
Section6 Relevancy of facts forming part of same transaction Facts which through not in issue are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different time and places. Section 156 Questions tending to corroborate evidence of relevant fact, admissible When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
23 Settled law relating to evidentiary value of testimony of child witness evidentiary value and nature of corroboration was laid down very precisely in the case of Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54 in FIR No. 272/11 Page 15 of 29 which the facts were similar. In this case a female child of 8 years was raped who after four hours of the wrongful act done by the accused told her mother about the act done by the accused and the question before the Court was what value to be attached to the testimony of such child and also to the statement given to her mother. The following points were laid down in paras 15 and 20 to 31:
1. Corroboration of the testimony of a child witness is required not because of any rule of law but only as a matter of prudence and it cannot be said that where there is no corroboration, conviction cannot be based on the sole testimony of child witness.
2. Corroboration need not be of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the victim is true and that it is reasonable safe to act upon it.
3. The independent evidence not only must relate to the offence but also connect the accused with the commission of that offence in some material particular.
4. Corroboration must come from some independent source.
5. The corroboration need not be by direct evidence but can also be circumstantial evidence.
6. The previous statement given to the mother so after the crime will be relevant evidence of the conduct of the victim especially illustration J to section 8 and section 157 of Evidence Act which are quoted herein below: FIR No. 272/11 Page 16 of 29
Illustration J to section 8 of Evidence Act "The question is, whether A was ravished. The facts that, shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made are relevant."
Section 157 states that "In order to corroborate the testimony of a witness any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. The question as to what is " at or about the time" in section 57 for the former statement to be believed is a question of fact depending upon the circumstances.
7. The mother of the victim though is the near relation but she can be treated as an independent witness because the word ' independent' merely means source which are likely to be not tainted. In the absence of enmity against the accused there is no reason why she would implicate him falsely.
8. The previous statement given to the mother can be treated as independent corroboration connecting the accused with a crime considering the conduct of the victim from start to finish and no corroboration beyond the statement of the child to her mother is necessary in the given circumstances if it inspires the confidence of the court.
Law relating to burden of proof in criminal case:
FIR No. 272/11 Page 17 of 29
It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. Even a strong suspicion against the accused can not take place of proof.
24 Reasons:
Now it is to be seen whether the ingredients for the offence alleged against the accused u/s 377 IPC as well as u/s 506(PartII) IPC have been proved by the prosecution in view of settled prepositions of criminal law as stated in paragraph 21.
(i) Accused had carnal intercourse. Such intercourse was with any other man, woman or animal.
PW1 Victim Master Abhay deposed that the accused identified by him in the court took him to the roof of the place of one boy namely LP, removed his shorts (Nikkar) and committed carnal intercourse with him by putting his penis in the behind portion of the victim resulting in pain in his anus. Specific words used by PW1 victim aged 10 years at the time of evidence were that " the accused put off of his underwear (nikkar) and Gand Mari". The FIR No. 272/11 Page 18 of 29 statement recorded u/s 164 Cr.P.C before Ld. M.M. Sandeep Garg(PW12) corroborates the version recorded by the victim in that statement and there is no contradiction at all between his statement recorded u/s 164 Cr.P.C and and oral evidence given in the court. The victim further states that thereafter he went to the park where his mother found him weeping. PW1 also states in his cross examination by Ld. APP that the accused for commission of the said act induced the victim to come to the stairs (place of incident) by offering him Rs. 6/ for purchasing toffee. PW2 mother of victim Ms. Raj Kumari also states to the same effect. PW4 HC Raj Kumar and PW11 HC Kapoor Singh who like PW2 have identified the accused in the court had stated that they were duty on the given day and on receipt of DD 12A they went to the place of incident where PW2 narrated the incident and told him that the accused has sodomized her son/ PW1. PW5 SI Abrar Ahmad from PCR has also stated that on the given day at about 3 pm he received a call regarding the quarrel and thereafter reached at the place of incident and was told by PW2 about the incident. He also identifies the accused who was caught by PW2. PW9 Dr. Asit Kumar Sikary who was on duty at the AIIMS Hospital at the time of incident conducted the examination of the victim vide MLC Ex. PW9/A and also on the accused vide MLC Ex. PW9/C. He has given his observation which are that it is clear from the MLC of the victim which was conducted only about 1 ½ hour after the committing of crime that on examination of the victim there was a tear and wed shaped present over the anal region extending into the canal base out side the anal canal. Further it was observed the insertion of finger was painful. FIR No. 272/11 Page 19 of 29 Final opinion of PW9 was that the insertion of penis or penis like object into the anal canal was likely. Also as per the MLC of the accused he found capable to of performing intercourse under normal circumstances. He has clearly denied the suggestion that he had given false opinion and that there was no basis to say that the penis or penis like object is inserted to the anal canal cannot be ruled out. He has also denied the suggestion that there was no evidence to show that the carnal intercourse was done within 48 hours. PW10 IO SI Sunil Kumar states the manner in which investigation was done by him and his cross examination could not reveal that there was anything amiss in his investigation. There was no delay in registration of FIR Ex. PW8/A on rukka Ex. PW10/A, no delay in preparation of the exhibits of samples of the victim and accused relating to the crime, seizure of Rs. 6/ vide memo Ex. PW2/D. Hence all the oral evidence given by the material witnesses PW1 and PW2 duly corroborated by the medical evidence prepared by PW9 and PW13 conclusively points that the accused had carnal intercourse with the victim/PW1. It is the FSL opinion Ex. PW13/B which was proved by PW13, who prepared the report as per which there was presence of semen on Ex. 1,3,5 and 10 which are Ex. 5,3,11 & 20 respectively and also as per ExPW13/A blood was detected on Ex. 6 and Ex. 11 which are Ex. P13 and P24. FSL Ex. 6 (Ex.P13 during evidence) is blood in gauze taken from the victim and FSL Ex. 11 (Ex. 23 during evidence) was blood in gauze taken from the accused. In the FSL result Ex. P13/A both were confirmed as human blood. Ex. P13 during evidence was found to be human blood group 'B' of victim and Ex. P24 during evidence was found to be human FIR No. 272/11 Page 20 of 29 blood group 'O' of accused. In FSL Ex. 1,3 and 5 (as Ex. 5, 3 and 11 during evidence) semen was found and on FSL Ex. 10 (Ex. 20 during evidence) underwear of accused semen was found and these were taken soon after the alleged incident. Hence, it is clear that the medical evidence fully corroborates the oral evidence and the version of prosecution witnesses that the samples immediately after the incident for sending to FSL could not but belong only to the accused.
As far as the evidentiary value of the testimony of child witnesses is concerned it is clear from the settled law abovesaid that court should be circumspect when it realizes upon the testimony of child witness lest it is a product of imagination or tutoring given to the child due to his tender age or undue influence but there is no law that such a testimony cannot be relied for basing conviction. Once the testimony satisfies the touch stone of credibility it can be relied upon to base conviction thereon. It was satisfied by the Ld. Predecessor judge by asking various questions from PW1 victim aged 10 years preliminary to his evidence that he is in a fit state of mind and is capable of understanding the questions and giving rational answers to those questions. Also it is not the sole testimony of child which is being relied in the present case but also the the testimony of PW2 who is the other material witness and also the testimony of the official witnesses whose action was very prompt in the matter. Hence the testimony of PW1 is fully corroborated by the testimony of other witnesses and the medical evidence.
(ii) Such intercourse was done in a manner which is against the order of FIR No. 272/11 Page 21 of 29 nature.
To show that the intercourse was against the order of nature, PW1 has clearly deposed that the accused removed his shorts ( Nikkar) and put his penis in the victim which caused pain in his anus. PW2 mother of victim who found him crying just after the incident at 2.30 pm and she found him crying at 3 pm in the park, also deposed on the similar lines. PW6 Ct. Parminder deposed about taking samples collected from the victim and the accused as proof of crime for sending the same as exhibits to FSL from the Malkhana and he deposited that same in the biology department of FSL vide RC No. 122/21/2011 and stated that he did not temper with the seal till the samples remained with him during the transit. PW7 who took the exhibits 13 and 14 from Malkhana and deposited the same vide RC No. 128/21/2011 also deposed that he did not tamper with the seal till the samples remained with him during the transit. PW10 IO stated that he deposited the case property in Malkhana which was ultimately collected by PW6 and PW7 above said. PW13 Sh. Naresh Kumar Sr. Scientific Officer has clearly deposed that the FSL opinion Ex. PW13/B which was proved by PW13, who prepared the report as per which there was presence of semen on Ex. 1,3,5 and 10 which are Ex. P5, P3, P11 & P20 respectively and as per ExPW13/A blood was detected on Ex. 6 and Ex. 11 which are P13 and P23. Hence, oral testimony is clearly corroborated by medical evidence that there was a carnal intercourse committed by the accused on the victim PW1 aged 10 years against the order of nature.
(iii) Such intercourse was voluntary on part of the accused. FIR No. 272/11 Page 22 of 29
PW9 Dr. Asit Kumar Sikary has deposed in his cross examination that while preparing the MLC Ex. PW9/C of accused he had observed that accused had taken alcohol but he was not under its influence. Hence, it is clear that despite being under intoxication the accused was not incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. Even otherwise as per section 85 and 86 IPC offence committed under intoxication is not an excuse unless it was administered his will and he is incapable of knowing the nature of act or that what was he doing was wrong or contrary to law. Even otherwise the conduct of the accused in running away when PW2 mother of victim/PW1 tried to confront him about the wrongful incident just after the crime clearly shows that accused was fully aware of his act even when he was doing it.
25 Other circumstances of the crime:
It has come in the evidence of PW1 that he was weeping and in the evidence of PW2 mother of PW1 that the victim was found weeping just after the incident which is a relevant fact contemporaneous circumstance to the occurrence of offence and admissible u/s 6 of Evidence Act( res gestae). Also the fact that Rs. 6/ were given to PW1 which was turned into Ex. PW2/B by the IO is a corroborating fact as per section 156 Evidence Act. The evidence of PW3 Ct. Satish who participated in the investigation with the IO/PW10 and this PW10 also deposed that Rs. 6/ Ex. PW2/B were handed over by the complainant PW2 in their presence to the IO. PW1 and PW2 state that the accused tried to run away after he was confronted with the fact of crime which is FIR No. 272/11 Page 23 of 29 also corroborating fact u/s 156 Evidence Act. PW2 has clearly identified the Nikkar Ex. P3 on which the blood was found as per the FSL report Ex. P3. The accused in his explanation under section 313 Cr.P.C only denies that he did the wrongful act/crime in present case without anything more. It is settled law that bare denial of culpability in crime without proper explanation showing innocence in itself furnishes additional link in the incriminating circumstances against the accused and reinforces prosecution case. In the present case bare denial of the involvement strengthens the prosecution case. Hence, all these surrounding factors as relevant u/s 156 of Evidence Act, clearly give strength to the testimony of all witnesses whether the eyewitness /PW1, other material witnesses/PW2 and other officials witnesses that the evidence is credible and there was nothing tainted or malafide in the testimony of PW1 and PW2 and the investigation was also conducted on the sound lines. In view of the convincing testimony of material witnesses PW1 victim and PW2 his mother coupled with corroborating medical evidence and bare denial of the accused in explanation u/s 313 Cr.P.C and the settled law quoted about relating to the evidentiary value of child witness and the firm corroboration available of the circumstances firmly pointing out the finger of accusation towards the accused leave this court to the conclusion that it was the accused who was perpetrator of the act. In fact the facts in this case are even stronger for conviction then as stated in case of Rameshwar abovesaid wherein only corroboration was the previous statement given to the mother of the victim by the victim and it seems that there was no corroboration by medical evidence. Corroboration of the deposition of the FIR No. 272/11 Page 24 of 29 mother in that case (in the case of Rameshwar) of the previous statement given by the victim Ms. Purni was held relevant u/s 157 read with section 8 of Evidence Act.
Hence in view of the observation of this court on the facts and in view of the law quoted above the ingredients for committing the offence u/s 377 IPC on part of the accused have been shown by the prosecution to have been proved beyond reasonable doubt.
26 As far as the ingredients of section 503 IPC are concerned, it is clear from testimony of PW1 that the accused told him after giving Rs. 6/ that the victim should purchase toffee for himself and not to tell about the incident to anybody, else he would kill the victim. Hence the threat was given to the victim with the intention to intimidate the victim so that he does not tell about the horrible act committed by the accused upon the victim which he was legally entitled to tell to the public authorities for taking action. In view of the aforesaid observation that the testimony of all the witnesses sounds credible and nothing has been brought in the cross examination which dislodges the prosecution case even to a slightest degree this court is inclined to believe that such a threat was issued by the accused to the victim/PW1. Hence, the ingredients of section 503 IPC also stands fulfilled and also that of section 506 ( PartII ) IPC that the threat was to cause death because the accused knew and was fully aware about the extent of the horrible crime committed by him.
27 In view of the aforesaid, I convict the accused for offence u/s 377 IPC and for criminal intimidation to cause death punishable u/s506 (Part II) IPC. Let the FIR No. 272/11 Page 25 of 29 accused be heard separately on the point of quantum of sentence.
Announced in the open (ASHOK KUMAR)
Court on 20.05.2014 MM07, SOUTH EAST,
SAKET, NEW DELHI,
FIR No. 272/11 Page 26 of 29
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST) 07, SAKET COURTS, DELHI STATE Vs. RAM BHAWAN FIR No: 272/2011 U/s: 377/506 IPC PS: K.M. Pur ORDER ON POINT OF SENTENCE:
Present: Ld. APP for State.
Convict in person with counsel Sh. Tej Narain, LAC.
Vide separate judgment the accused Ram Bhawan has been convicted for commission of offence u/s 377 IPC and also u/s 506 (PartII) IPC.
I have heard the Ld. APP, convict in person as well as the LAC on the point of sentence.
Ld. APP submits that the maximum sentence available under law as per the competency of the court should be imposed upon the accused because he has been convicted for a very serious offence. There is no gainsaying the fact that such offences are increasing in large numbers where innocent victims of tender years are subjected to very unnatural and perverted desires of people like the convict in the present case. Ld. APP also submits that we read such incidents very commonly in the print media and a deterrent punishment is very necessary in the present case to discourage such prospective persons who are acting as wolves in the guise of human being devouring the innocent childhood of victims. PW1 has stated that he underwent great agony, psychological and physical pain inflicted by the convict and the state on behalf of such victim must FIR No. 272/11 Page 27 of 29 give a fitting reply as per the procedure established by law. The court has given a very patient trial to the convict since 13.1.2012 when cognizance of the offence was taken till the completion of trial on delivery of the sentence.
The convict as well as the LAC on behalf of the accused submit that the convict is not previously involved in any other offence and he is the sole bread winner of his family consisting of wife, four children and both parents. He should be given a chance to improve and be a responsible person. He has already undergone J/C period of 556 days which is sufficient to meet the ends of justice. The Ld. LAC has relied upon two judgments of apex court titled as Fazal Rab Chaudhary Vs State of Bihar AIR 1983 (SC) 323 and Chitranjan Dass Vs State of UP AIR 1974 (SC) 2352 to state that in the similar circumstances the Hon'ble Apex Court has reduced the sentence to a lesser period and in the present case the accused has already undergone more sentence than in the said two cases. Hence, the convict be released on account of the period already suffered by him in J/C. I am in agreement with the submission of Ld. APP that a deterrent punishment should be imposed in the present case as the such act has not only an adverse impact on the mind and health of a the children of tender years but society at large is affected by such horrific crimes. A deterrent punishment is necessary to reassure the victim and the society at large that the State will act with its full might and will have the retribution on behalf of the victim to satisfy their conscience and also to discourage such evil elements in society to think several times before repeating the conduct as done by the convict in the FIR No. 272/11 Page 28 of 29 present case. In such cases leniency should not be shown by believing that such people will reform and in view of the conduct of the convict the application of reformative theory of punishment is out of question. Such conduct of the accused becomes even more aggravating when it is seen that on 5 occasions request of accused was allowed u/s 311 Cr. P.C. in interest of justice which can be seen as a delaying tactics on part of the convict. As far as the judgments relied upon by the LAC are concerned, in my view the sentence was reduced by the Apex Court in its discretion but in the facts and circumstances as abovesaid discussed, I feel that such discretion is not to be exercised by this court. Accordingly, I sentence the accused to period of 03 years each for commission of offence u/s 377 IPC as well as 506 (PartII) IPC and also to pay a fine of Rs. 10000/ each for the said offences and in default of payment of fine to suffer RI of 09 months each. Both sentences will run consecutively to each other. Benefit of the period already undergone by the accused in J/C be given to accused. Copy of the judgment the order on point of sentence be given to accused free of cost.
Announced in the open (ASHOK KUMAR)
Court on 20.05.2014 MM07, SOUTH EAST,
SAKET, NEW DELHI,
FIR No. 272/11 Page 29 of 29