Delhi District Court
In Re: State vs Surender @ Kaku Etc. on 17 October, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS SURENDER @ KAKU ETC.
F.I.R. No: 476/00
U/s 377/34 IPC
P.S. Defence Colony
Date of Institution of Case : 11.10.2000
Judgment Reserved for : 17.10.2011
Date of Judgment : 17.10.2011
JUDGMENT:
(a) The serial no. of the case : 32/2/03
(b) The date of commission of offence : 01.07.2000
(c) The name of complainant : Visho S/o Sh.
Jalandhar, r/o Jhuggi no.
429, Indra Camp,
Andrews Ganj, New
Delhi.
(d) The name, parentage, of accused : 1) Surender @ Kaku S/o
Sh. Ganga Ram, r/o 7/36,
Andrewz Gan, New Delhi.
2) Ashok S/o Sh. Kuldeep
Singh, r/o A126, Om
Enclave, PS Sarai Khwaja,
Faridabad, Haryana.
Present Address : As above
FIR No. 476/00 1/28
(e) The offence complained of : U/s 377/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Both accused persons
convicted
(h) The date of such order : 17.10.2011
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 01.07.2000 at about 12.45 pm at H. No. 4042, Andrews Ganj, Road No.3, New Delhi within the jurisdiction of PS Defence Colony, accused Surender @ Kaku and Ashok in furtherance of their common intention committed carnal intercourse against the order of nature with complainant Visho and thus thereby the accused persons committed offence punishable u/s 377/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused persons were supplied the documents. Thereafter vide orders dated 27.11.2000, charge u/s 377/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution examined sixteen witnesses, whereafter the PE in the matter was closed and the statement of accused persons u/s 313 Cr.P.C was recorded by my Ld. FIR No. 476/00 2/28 Predecessor vide proceedings dated 26.09.2003. However, as the entire incriminating material was not put to the accused persons, their fresh statement u/s 313 Cr.P.C. was recorded on 23.09.2011 wherein they claimed themselves to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 Visho deposed that the incident was about two years old and at about 12.00/1.00 pm while he was standing on the road near his house, one Ashok called him and asked him to bring crystal balls and to accompany him to his quarter. He further deposed that they went to the quarter of Kaku and they asked to take a soda bottle of Kancha and to go on the roof. He further deposed that on the roof both the accused persons (correctly identified) consumed liquor. Accused Ashok started beating him and also started joking and used obscene words then Ashok pull down his pant and forcibly did carnal intercourse with him and accused Kaku also did carnal intercourse with him. They threatened to beat him if raised alarm. He further deposed that accused Ashok did the intercourse two times with him. He further deposed that he narrated the incident to his mother and lodged the complaint Ex.PW1/A in the police station. He further deposed that police got him medically examined in AIIMS. He further deposed that accused persons had demanded five hundred rupees from him.
5. During his cross examination by the Ld. Defence counsel he stated that FIR No. 476/00 3/28 Ashok and Kaku were known to him. He admitted that there was also previous enmity between his group and group of Kaku and Ashok. He stated that on 01.07.2000 in the evening a quarrel had taken place but in that quarrel Ashok and Kaku were not present. He admitted that he was asked by other boys of his group to name Kaku and Ashok regarding the incident of carnal intercourse with him which was committed by other persons of the group of Ashok and not by accused persons, as he did not know the names of real persons who had committed the act. He further admitted that he also narrated to his mother regarding accused persons at behest of his other friends. He further admitted that he had given names of accused persons to the police in this regard at the instance of those boy of his group. He further admitted that he had also given statement in the court under the pressure of those persons of his group.
6. During his reexamination by the Ld. APP for the state he admitted that he had made an earlier statement against accused persons but voluntarily stated that it was made under the influence of boys of his group. He stated that he cannot tell the names of those boys as he used to meet them in the area once a while. He denied the suggestion that he had been won over by the accused persons or that he has entered into compromise with the accused persons. He further denied the suggestion that he was deliberately deposing falsely to save the accused persons or that he had made correct statement on earlier occasion or that he was deposing falsely. He admitted that he has been summoned by the court. He admitted that he can be prosecuted for giving false statement but he FIR No. 476/00 4/28 was not deposing falsely. He stated that he cannot tell addresses of those boys as they had left.
7. During further cross examination by the Ld. Defence Counsel he admitted that both accused were innocent.
8. PW2 Smt. Laxmi deposed that on 1.7.2000 when she came back after finishing work in a Khothi, her son Visho told her that accused Ashok & Kaku (correctly identified) had committed carnal intercourse with him forcibly. He also told her that the accused persons would do the same thing again with him if the money of Rs.500/ is not paid to them. She further deposed that then they lodged the complaint to the police and her son was medically examined in AIIMS. She further deposed that in the school record the name of her son is written as Vishu but father's name is written as K.K. Kamal because earlier she was married to one K.K. Kamal.
9. During her cross examination by Ld. Defence Counsel she admitted that she was not present at the place of incident and had not seen any incident and whatever was told by her son. She further stated that she told the police that accused persons and her son used to quarrel being member of different groups. She stated that she had not given any statement to the police but she did sign on blank papers. She stated that now she has come to know that her son has falsely given the names of the accused persons at the instance of his friends. FIR No. 476/00 5/28
10. During her cross examination by the Ld. APP for the State she denied the suggestion that she was deposing falsely or that she had made a correct statement on the earlier occasion. She further denied the suggestion that her son had told her correct facts on the day of incident. She further denied the suggestion that she had been won over by the accused persons and deliberately deposing falsely to save the accused persons or that a secret compromise had taken place between her and accused persons.
11. During her cross examination by the Ld. Defence counsel she admitted that both accused persons are innocent and they had done nothing wrong with her son.
12. PW3 ASI Balvir Singh deposed that on 01.07.2000 he was working as DO at PS Defence Colony and on that day on receipt of rukka through Ct. Namdev, he registered the present FIR vide Ex. PW3/A.
13. PW4 HC Vedvir Singh deposed that on 02.08.2000 while he along with Ct. Vedvir and Ct. Saleem were on patrolling in the area of Defence Colony, one person started running seeing them. He further deposed that he was apprehended whose name was later revealed as Surender. He further deposed that from his search one buttondar knife was recovered, for which a case was got registered and IO/HC Dharamvir had conducted further investigation. He further FIR No. 476/00 6/28 deposed that accused Surender made disclosure statement of the present case. He further deposed that he had not joined any other investigation.
14. PW 5 Ct. Ram Niwas deposed that on 01.07.2000 he was posted at PS Defence Colony. On that day he was given DD no.28A by DO/ASI Balvir which he took to HC Dharamvir at Andrews Ganj Bus Stand from where they went to Indra Camp where one boy Visho S/o Sh. Jhalandar who gave statement to the IO and he took the child for medical examination at AIIMS. He further deposed that doctor gave him two samples bottles, one blood sample and another of Anus swab with the seal of AIIMS which he gave to the IO at the spot. He further deposed that IO seized the same vide seizure memo Ex.PW5/A. He further deposed that nobody was arrested in his presence.
15. During his cross examination he stated that there were 45 persons present when IO recorded the statement of that boy. He further stated that he remained at the spot for about half an hour. He further stated that he cannot say if any other statement was recorded by the IO or not as he had gone to AIIMS. He further stated that he was having an application from IO for medical examination of child. He stated that the age of the child was 14/15 years. He further stated that he had not seen any documentary proof of age of child. He further stated that he remained in the hospital for medical examination of boy for 34 hours. He denied the suggestion that he had not kept the samples safe. FIR No. 476/00 7/28
16. PW5 (in fact PW6) Ved Veer deposed that during the intervening night of 1/2.08.2000 he along with HC Ved Veer, Ct. Saleem were on patrolling duty and were present at CBlock, Ganda Nala, Defence Colony. At after about 12 in the night, accused Surender @ Kaku (correctly identified) was arrested and a buttondar knife was recovered from his possession and a case vide FIR No. 561/2000 was got registered at PS Defence Colony. He further deposed that the accused made a disclosure statement about his involvement in the present case.
17. During his cross examination, he denied the suggestion that no knife was recovered from the accused in his presence or that no disclosure statement was made by the accused or that the accused was not arrested in his presence or that he was deposing falsely at the instance of the IO.
18. PW6 (in fact PW7) Ct. Nam Dev deposed that he does not remember the date, month, however, in the year 2000, one day, he along with HC Dharamvir reached at Andrews Ganj, Road no.3, where complainant's mother Laxmi met them and IO recorded her statement and thereafter, IO prepared rukka and got the case registered by sending him to the PS. He further deposed that after registration of the case, he came back at the spot. He further deposed that he does not know anything more about this case.
19. During his cross examination by the Ld. APP for the State he stated that he cannot say whether it was 1.07.2000 or any other date. He admitted that he FIR No. 476/00 8/28 along with HC Dharamvir reached there on receipt of DD no. 28A. He stated that he does not remember whether the complainant Visho met them or not. He further stated that he cannot say whether the IO prepared rukka on the statement of Visho. He denied the suggestion that IO seized the blood gauze in the AIIMS hospital which was sealed by the doctor with the seal of CMO. He admitted that seizure memo Ex. PW4/A bear his signature at point B. He further denied the suggestion that he was not giving the true version as to create a doubt in the prosecution case in order to give benefit to the accused. He further denied the suggestion that he had been won over by the accused persons.
20. PW7 (in fact PW8) Ct. Sukhvinder Singh deposed that on 13.09.2000 he was posted at PS Defence Colony and on that day he took the sealed pulland sealed with the seal and deposited the same in FSL Malviya Nagar. He further deposed that nobody tempered with it till the pullanda remained in his custody.
21. PW8 (in fact PW9) Ct. Ved Ram deposed that on 02.08.2000 he along with HC Ram Kumar took accused Surinder @ Kaku (correctly identified) for his medical examination to the hospital where doctor took blood sample of the accused and sealed the same in a small bottle with the seal of DFM AIIMS, New Delhi. He further deposed that his statement was recorded by the IO and the sample was seized by HC Dharamvir vide memo Ex. PW8/A.
22. PW 9 Dr. Sunil Sharma deposed that on 02.08.2000 he medically FIR No. 476/00 9/28 examined one Surinder Kumar S/o Sh. Ganga Ram who was produced by the police before him for his medical examination with the alleged history of committing sodomy one month back and his detailed MLC is Ex. PW9/A. He further deposed that blood sample of Surinder Kumar was preserved in a gauze piece and same was sealed with the seal of Department and handed over to the police. He further deposed that in his opinion, there was nothing to suggest that Surinder Kumar could not perform sexual intercourse.
23. PW10 (in fact PW11) Sh. R.R. Rekhja deposed that he has brought the record from the school regarding the date of birth of K.K. Bishi s/o K.K. Kamal and as per record his date of birth is 16.08.1989. He further deposed that the copy of school leaving certificate is Ex. PW10/A.
24. During his cross examination he stated that he has mentioned the date on the basis of the school leaving certificate Ex. PW10/A. He further stated that he does not know on what basis the MCD School has given the date of birth of K.K. Bishi.
25. PW11 (in fact PW12) HC Sat Narain deposed that he has brought the register no. 19 of PS Defence colony containing the entry no. 1676, 1738 & 1746 which are Ex. PW11/A to C. He further deposed that on 13.09.2000 vide RC No. 79/21 through Ct. Surinder Singh, four pullandas with three samples sealed in duly sealed condition were sent to FSL Malviya Nagar. He further deposed that FIR No. 476/00 10/28 no one tempered with the case property/samples till the same remained in his custody.
26. During his cross examination by the Ld. Counsel for accused Surinder, he stated that he had himself made the said entries in the register. He denied the suggestion that he was deposing falsely at the instance of the IO.
27. PW12 (in fact PW13) Ct. Mohd. Saleem deposed that during the intervening night of 1/2.08.2000 he was posted at PS Defence Colony and on that day he along with HC Ved Veer and Ct. Ved Veer were on patrolling duty and on that day accused Surender @ Kaku was arrested in a case under Arms Act.
28. During his cross examination he denied the suggestion that he was deposing falsely at the instance of accused (in fact IO).
29. PW13 (in fact PW14) Dr. T. Millo deposed that on 01.07.2000 he examined one Visho 14 years child who was brought by Ct. Ram Niwas PS Defence Colony vide MLC no. 61392/00 prepared by him vide Ex. PW13/A. He further deposed that the patient was brought with the alleged history of being sodomized forcibly by two persons on 01.07.2000 at about 1.00 pm as per the victim history. He further deposed that there was history of beating with hands. He further deposed that on examination patient was conscious and oriented and FIR No. 476/00 11/28 vitals were stable. He further deposed that on examination of anal region, there was tenderness around anus. He further deposed that there was congestion of anal mucoca. He further deposed that there was a fresh linear tear, two in number in the 12'O clock position. He further deposed that there was no other external injury on other part of the body. He further deposed that as per his opinion the external examination of the patient the findings were suggestive of carnal intercourse. He deposed that Blood in gauze piece and anal swab were preserved sealed and handed over to the IO.
30. During his cross examination he stated that it is possible that injury sustained by the victim could be due to some other reason other than the intercourse.
31. PW 14 (in fact PW15) HC Dharamvir deposed that on 01.07.2000 he was posted at PS Defence Colony and on that day, on receipt of DD No. 28 A, he along with Ct. Ram Niwas, Ct. Nam Dev reached at Jhuggi at Indra Camp where Viso and her mother met them and he recorded the statement of Viso i.e. Ex.PW1/A and he sent him for medical examination through Ct. Ram Niwas. He deposed that he prepared the rukka i.e. Ex.PW14/A and the rukka was sent to PS through Ct. Nam Dev. He deposed that he prepared the site plan i.e. Ex.PW14/B and he seized the blood sample and blood garb which were sealed with the seal of CMO AIIMS vide Ex.PW4/A. He deposed that he searched the accused but he was not arrested on that day. He deposed that he arrested FIR No. 476/00 12/28 accused Surender on 02.08.2000 and conducted his personal search vide Ex.PW14/C and his disclosure statement was recorded vide Ex.PW14/D and the medical examination of the accused was also got conducted. He deposed that he seized the blood sample and seal of AIIMS vide Ex.PW8/A. He further deposed that on 07.08.2000 accused Ashok was also arrested and his disclosure was recorded vide Ex.PW14/E and his personal search was conducted vide Ex.PW14/F and he was medically examined in AIIMS and blood sample and seal was seized vide Ex.PW15/G. He deposed that he produced the accused before Ld. Link MM on 08.08.2000 for conducting his TIP but he refused. He deposed that he recorded the statement of the witnesses. He deposed that on 13.09.2000 the samples were sent to CFSL in sealed condition and after completion of the investigation, he filed the challan.
32. During his cross examination he stated that he sent the rukka at about 11.15 pm for registration of the case and Ct. returned back at the spot with copy of FIR at about 12 night. He stated that he prepared the site plan and also searched the accused and sent the Ct. to PS with rukka. He stated that he recorded the statement of four persons namely Viso, his mother Laxmi, Ct. Ram Niwas and Ct. Nam Dev on the same day i.e. day of incident. He stated that on 28.09.2000 he also recorded the statement of Laxmi at her house. He denied the suggestion that he did not investigate the matter properly or the accused had been falsely implicated in this case.
FIR No. 476/00 13/28
33. PW 15 (in fact PW16) Ms. Poonam Chaudhary, the then Ld. MM deposed that on 08.08.2000 an application for TIP of accused Ashok was marked to her by Sh. R.K. Gupta, Ld. MM i.e. Ex.PW15/A along with accused Ashok Singh i.e Ex.PW15/B and the accused refused to take part in TIP despite her warning. The statement of the accused was also recorded to this effect and the copy of TIP proceedings is Ex.PW15/C.
34. I have heard the arguments advanced at bar by the learned Defence counsels for the accused persons. I have also considered the submissions made by the learned APP, have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
35. In order to prove its case and establish the guilt of the accused persons, the prosecution has to prove that the accused persons committed carnal intercourse against the order of the nature i.e. sodomy with complainant Visho forcibly/against his wish.
36. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused persons.
FIR No. 476/00 14/28
37. Complainant Visho who was examined as PW 1 in the present matter categorically narrated the incident of his being subjected to carnal intercourse by both the accused persons turn by turn. He proved that on the day of incident, he was called by accused Ashok and asked to accompany him. He proved that they went to the quarter of Kaku and as asked by the accused persons took the soda bottle to the roof of the quarter where both the accused persons consumed liquor and accused Ashok beat him, used obscene words and thereafter pulled down his pant and forcibly did carnal intercourse with him twice whereafter, accused Kaku also did carnal intercourse with him. He proved that he was threatened by the accused persons that they would beat him if raised alarm. He proved that he narrated the incident to his mother and gave a complaint i.e Ex.PW1/A to the police. He further proved that he was medically examined at AIIMS hospital.
38. Deposition of PW 1 was duly corroborated by his mother who was examined as PW 2 and who proved that after she was informed about the incident by his son, they reported the matter to the police and his son was medically examined at AIIMS hospital.
39. Hence, the complainant as well as his mother duly proved the incident as well as established the identity of the accused persons as the perpetrator of the crime.
40. During the course of arguments, Ld. Defence Counsel had vehemently FIR No. 476/00 15/28 argued that no reliance can be placed upon the testimony of either PW 1 or PW 2 as both of them retracted from the statement during the cross examination and in fact, went on the state that both the accused persons were innocent and falsely implicated at the behest of some other boys of the area. It was argued that their turning hostile proved fatal for the prosecution case and their being no other eye witness of the incident, the accused persons deserve to be acquitted of the charges.
41. I do not find any force or merit in the contentions of the Ld. Defence Counsel. No doubt PW 1 i.e. complainant Visho and PW 2 Smt. Laxmi her mother retracted/backtracked from their statement made in examinationinchief however, I have no hesitation in concluding that the reason for their retracting/giving clean chit to the accused persons during their cross examination was because they were won over by the accused persons. It was for certain extraneous considerations that they disowned their statements made on oath on 19.08.2002. However, their doing so has not affected the prosecution case in any manner whatsoever and the statements made by them during their cross examination can be easily ignored as being nothing but falsehood. The statements made in the cross examination were lies to the core. He could not even give the names/addresses of the members of the rival group whom he claimed had forced/pressurized him to depose falsely against the accused persons.
FIR No. 476/00 16/28
42. At the outset, it ought to be remembered that the examination in chief of both the witnesses i.e. complainant and his mother was recorded on 19.08.2002 wherein they had completely nailed the accused persons that is to say proved the incident of carnal intercourse as well as established their identity. On that day, neither PW 1 nor PW 2 were cross examined and it was after a gap of 9 months i.e. on 08.05.2003 when they were recalled for their cross examination, they disowned their earlier statement. During this period of 9 months, they were won over by the accused persons may be by money, muscle or power.
43. Let that be the case but in view of the statement made by PW 1 and 2 during their examination as well as in view of the law laid down by the Hon'ble Apex Court which is discussed hereunder, I have just no doubts in concluding and in fact, I am of the firm opinion that the accused persons had indeed made complainant Visho a victim of their lust.
44. The law is fairly well settled now in respect to the weight age to be at tached to the testimony of a witness who has been declared hostile. Evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution or defence. ( Middolla Harijana Thimmaiah @ Thimmappa v. State of A.P., (A.P.)(FB) 2005(1) R.C.R.(Criminal) 873).
45. In the landmark judgment of Khujji v. State of Madhya Pradesh, 1992(3) FIR No. 476/00 17/28 RCR(Crl.) 158 (SC) : 1991 SCC(Crl.) 916, the Hon'ble Supreme Court held as follows :
"The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."
46. In Balu Sonba Shinde v. State of Maharashtra, 2003 SCC (Crl.) 112 the Hon'ble Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance.
47. Similarly in Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 , the Hon'ble Supreme Court held :
"Where the Court gives permission to the Prosecutor to crossexamine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
48. In Ramappa Halappa Pujar v. State of Karnataka, (SC) 2007(3) R.C.R. FIR No. 476/00 18/28 (Criminal) 102, the Hon'ble Apex Court observed that If witnesses turned hostile , the same by itself would not negate the prosecution case .Evidence of hostile witness cannot be rejected in toto but it can be accepted to the extent of his version is found to be dependable on a careful scrutiny thereof. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of general rule, be treated as washed off the record altogether It is for the Court of fact to consider in each case whether as a result of such crossexamination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. (2006(2) RCR(Crl.) 448 (SC.)
49. In Radha Mohan Singh @ Lal Saheb v. State of U.P., (SC) 2006(1) R.C.R.(Criminal) 692, it was further laid down as under:
"A prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. 1992(3) RCR(Crl.) 158 (SC) relied".
50. In Jodhraj Singh v. State of Rajasthan, (SC) 2007(3) R.C.R.(Criminal) 172 the Hon'ble Apex Court discussed at length the evidentiary value of a hostile witness and it was held :
FIR No. 476/00 19/28
(1) Only because a witness has resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. (2) It is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile.
51. In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was held that merely because a witness has turned hostile it cannot be taken as a ground to discard the case of the prosecution in its entirety if it is otherwise proved. It was further held that these days it is not an uncommon practice that a witness is won over and he turned hostile.
52. Similarly in Nisar Khan @ Guddu v. State of Uttaranchal, (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab, (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813.
53. In Shankar Mangelal Lokhande v. State of Maharashtra, (Bombay) 2000(4) R.C.R.(Criminal) 229 the court observed while convicting the accused despite PWs turning hostile that experience showed that witnesses by lapse of time are won over and resile from their earlier statements. FIR No. 476/00 20/28
54. Detailed observation were made by the Hon'ble Apex court and it also showed its displeasure at the prevailing practice among the witnesses turning hostile Swaran Singh v. State of Punjab, (SC) 2000(2) R.C.R.(Criminal) 762.
Hence, I have no hesitation in ignoring the statements made by PW 1 & 2 in their cross examination.
55. My findings that whatever was deposed by PW 1 in his deposition as recorded on 19.08.2002 was a true narration of the ghastly act committed by both the accused persons against him are reaffirmed from the deposition of PW 13 (in fact PW 14) Dr. T. Millo & MLC Ex.PW13/A as proved by him.
56. Regarding the incident the complainant had stated as under:
"On the roof both the accused persons consumed liquor. Ashok started beating me also and started joking and started talking offscene (in fact obscene) words then Ashok pull down my pent and Ashok forcibly did carnal intercourse with me and accused Kaku did the carnal intercourse with me".
Hence, PW 1 had claimed that not only was he subjected to carnal intercourse by the accused persons but he was also beaten up by them. Dr. Millo who had examined the complainant in his deposition had categorically stated that the complainant was brought with alleged history of being sodomized forcibly and there was alleged history of beating with hands. The relevant portion of his deposition read as:
FIR No. 476/00 21/28
"The patient was brought with alleged history of being sodomised forcibly by two persons on 01.07.2000 at about 1 pm as per the victim history. There is history of beating with hands".
57. Similarly, in the MLC Ex.PW13/A on record as prepared by Dr. Millo, it is categorically mentioned as "Alleged history of being sodomised forcefully by two persons on 01.07.2000 at about 1 pm as per the victim's history. There is H/O beating with hands".
58. All these consistent statements leaves no doubt that on 19.08.2002 complainant Visho had deposed truthfully about the incident. In the case at hand, FIR was lodged promptly. The incident occurred at around 1.00 pm, complainant was medically examined at around 9.00 pm and the rukka was sent at around 11.00 pm. Hence, there was no delay and this promptness lands support to the truthfulness of the complainant's claims.
59. It was also one of the argument of the Ld. Defence Counsel that apart from the complainant, no independent witness of the incident was joined in the investigation by the IO and no eye witness has been examined by the prosecution in support of its case. I find even the said contention of the Ld. Defence Counsel as being absolutely merit less. Firstly, incidents of the present kind are committed in secrecy, at places hidden from others i.e. where nobody can see and at those appropriate time when nobody is noticing/is there to notice FIR No. 476/00 22/28 the commission of such acts. Or else such acts can never be committed. Secondly, Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact and it is the quality of evidence that matters and not the quantity/number of witnesses (Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696). In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any inconvenience for the sake of society.
60. Thirdly, the statement of PW 1 duly corroborated by medical evidence is self sufficient to nail both the accused persons. He was a victim of the unnatural lust of the accused persons. He was all of 14 when he was subjected to carnal intercourse. He was mentally as well as physically abused. Not even in wildest of his nightmares he would have thought that incident like such could have ever happened to him. He being a victim of crime, an injured person has no reason to shield the real culprit and falsely implicate an innocent person. He accordingly deposed truthfully against both the accused persons on 19.08.2002 on similar lines as was told by him in his complaint to the police and the doctor who FIR No. 476/00 23/28 examined him. It is a different matter that later on he was made to resile from his earlier statement. His testimony is to be treated at par with the testimony of an injured person. Testimony of an injured witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused persons. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. Reliance may be placed upon law laid down in (Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148 and State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531,Appabhai v. State of Gujarat, AIR 1988 SC 696 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
61. In State of Kerela Vs. Kurissum Moottil Antony, (SC) 2007(1) R.C.R. (Criminal) 172 the Hon'ble Apex Court while dealing with the case u/s 377 IPC held that the rule regarding non requirement of corroboration is equally applicable to a case of this nature. Accused can be convicted without corroboration. In Chottu Ram Vs. State of Rajasthan (Rajasthan) (Jaipur Bench) 2004 (1) R.C.R. (Criminal) 855 the Division Bench of Rajasthan High Court convicted the accused u/s 377 IPC even in the absence of an eye witness, more so when the complainant was also dead. The medical report along with circumstantial evidence was held sufficient enough to nail the accused u/s 377 IPC.
FIR No. 476/00 24/28
62. Coming back to the facts of the present case in my opinion once the claims of PW1 i.e. injured Vishu that he was subjected to carnal intercourse were corroborated by the medical report nothing more was required from the prosecution to establish the guilt of the accused persons. There was no requirement of any independent corroboration or deposition of any eye witness so as to instill further faith in the testimony/claims of PW1.
63. Dr. T. Millo who was examined as PW13 proved the MLC of injured Vishu as Ex. PW13/A and he gave his report regarding the examination of Vishu as under: "On examination patient conscious and oriented vitals stable. On examination of anal region, there was tenderness around anus. There was congestion of anal mucoca. There was a fresh linear tear, two in number in the 12O' clock position. There was no other external injury in other parts of the body."
"As per my opinion, the external examination the patient, the findings were suggestive of anal intercourse."
64. Hence, the above report of Dr. T. MIllo leaves no doubt that Vishu was subjected to carnal intercourse i.e. anus penetration by the accused persons which is an unnatural sexual act i.e. sexual act against the order of nature. Sexualchild abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. If there is any case of penile FIR No. 476/00 25/28 oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. Sakshi Vs. Union of India (SC) 2004(5) SCC 518.
65. Apart from the MLC Ex. PW13/A as well as the deposition of PW13 from the FSL report dated 20.12.2000 it stands unambiguously established that PW1 complainant Vishu was subjected to carnal intercourse by the accused persons. The report as prepared by Dr. Rajender Kumar and the findings thereof makes it amply clear that human semen was found on the anal swab. This anal swab is of complainant Vishu which was taken at the time of medical examination of complainant Vishu as deposed by PW13 and duly corroborated by PW5 Ct. Ram Niwas who proved that the anal swab sealed with the seal of AIIMS was seized by the IO vide Ex. PW5/A. Blood samples of the accused persons were seized by the IO and sent to FSL as proved by Ct. Ved Ram and Dr. Sunil Sharma vide Ex. PW8/A & PW9/A. Ct. Sukhvinder (PW7) also proved the taking of the samples to FSL Malviya Nagar. Seizure of the samples and the fact that they were sent to FSL Malviya Nagar was also proved by PW11 HC Sat Narayan. Their testimony was duly corroborated by the IO who had further proved the seizure of blood samples of the accused persons vide Ex. PW8/A & PW15/G respectively.
66. Though, Ld. Defence Counsel had argued that the FSL report cannot be FIR No. 476/00 26/28 read in evidence against the accused persons as Dr. Rajender Kumar who had prepared the report was not examined by the prosecution. However, I do not agree with the said contentions of the Ld. Defence Counsel. Firstly, as per records, the Ld. Predecessor of this court had closed prosecution evidence in this matter on 15.09.2003 and recorded the statements of the accused persons on 26.09.2003. Since 29.09.2003 the matter remained pending for final arguments. However, as is reflected in proceedings dated 10.08.2006 an application u/s 311 Cr.P.C. was moved by the Ld. APP for the State seeking examination of Dr. Rajender Kumar who prepared the FSL report and Dr. Arun Kumar Agnihotri apart from others. The request/application of Ld. APP was allowed and prosecution was granted only one opportunity for examination of Dr. Arun Kumar Agnihotri. But for one reason or the other he could not be examined till the S.A. of the accused persons were finally recorded on 23.09.2011. None the less, the Ld. Predecessor of this court vide the said orders i.e. orders dated 10.08.2006 dispensed with the examination of Dr. Rajender Kumar who had prepared the FSL report while holding that he being an expert who had given his expert opinion his evidence was admissible in evidence per see. This is also the law laid down in Section 293 Cr.P.C. Further reliance may also be placed upon case titled as Ammini Vs. State of Kerela, AIR 1998 SC 260. Secondly, this report is merely a corroborative piece of evidence and as I have discussed at length above the testimony of PW1 Vishu (complainant/injured) duly supported by MLC Ex. PW13/A and Dr. T. Millo's deposition are self sufficient to nail the accused.
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67. Accordingly, in view of my above discussion both accused persons are held guilty and convicted of the charges in the present case.
68. I order accordingly.
69. Copy of the judgment be given to the accused persons free of cost.
70. Let they be now heard on the point of sentence separately.
Announced in the open (Gaurav Rao)
Court on 17.10.2011 MM (South)/Delhi.
FIR No. 476/00 28/28
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT:SAKET COURTS: NEW DELHI In Re: STATE VERSUS SURENDER @ KAKU ETC.
F.I.R. No: 476/00 U/s 377/34 IPC P.S. Defence Colony ORDER ON SENTENCE 31.10.2011 Present: Ld. APP for the State.
Convict Surinder is produced from JC along with counsel Sh. Tej Narain.
Convict Ashok is present along with his counsel.
Vide separate judgment announced on 17.10.2011 accused Surender @ Kaku and Ashok were convicted u/s 377/34 IPC.
The learned defence counsel for accused Surender @ Kaku has submitted that the convict has been facing trial for the last almost 11 years and the same itself has been enough punishment for him. It was submitted that the convict is an extremely poor person, has a large family to look after. It was also prayed the accused be given benefit of probation of offenders Act. It was further submitted accused be given benefit of section 428 Cr.P.C.
The learned defence counsel for accused Ashok has submitted that the convict has been facing trial for the last almost 11 years and the same itself FIR No. 476/00 29/28 has been enough punishment for him. It was submitted that the convict is an extremely poor person, has a large family to look after and he has clean antecedents. It was also prayed the accused be given benefit of probation of offenders Act. It was further submitted accused be given benefit of section 428 Cr.P.C.
Per contra, learned APP has very vehemently argued that the act of the accused persons are unpardonable. It was submitted that the accused persons deserves no leniency as they committed a very ghastly act.
After giving my thoughtful consideration to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case, it shall meet the ends of justice if accused Surender @ Kaku is sentenced to undergo three years RI for offence u/s 377 IPC along with fine of Rs. 5,000/. In default of payment of fine, he shall undergo further custody of one month. As the accused has spent around 8 months & 24 days in custody, benefit of Section 428 Cr.P.C. is given to him and the period spent by him in custody shall be deducted from the sentence so awarded today.
As far as accused Ashok is concerned, he is also sentenced to undergo three years RI for offence u/s 377 IPC along with fine of Rs. 5,000/. In default of payment of fine, he shall undergo further custody of one month. As the accused has spent around 4 months & 26 days in custody, benefit of Section 428 Cr.P.C. is given to him and the period spent by him in custody shall be deducted from the sentence so awarded today.
Benefit of probation is declined to both the accused persons looking at the FIR No. 476/00 30/28 ghastly/heinous crime which they have committed. Merely to satisfy their carnal desire/lust they ravaged the life of a 14 year old boy. The mental trauma which complainant Vishu must have suffered at the hands of the accused persons apart from the physical pain cannot be penned down. Such criminal acts like the one which the accused persons have committed must be dealt with utmost strictness so that it has a deterrent effect upon like minded antisocial elements of the society.
I order accordingly.
A copy of this order be given to the convict free of cost.
At this stage, an application u/s 389 Cr.P.C. has been moved by accused Ashok for suspension of sentence. Considered. As the accused was on bail during trial he is admitted to bail on furnishing bail bond in the sum of Rs. 10,000/ with one surety of the like amount for 30 days.
No application for suspension of sentence has been preferred by accused Surender @ Kaku who is otherwise in custody. In these circumstances, conviction warrants be prepared and accused be remanded to Central Jail Tihar to undergo the sentence awarded today. He has also not paid the fine.
File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 31.10.2011 MM(South): Delhi
FIR No. 476/00 31/28