Delhi District Court
State vs . Rajeev on 20 September, 2013
IN THE COURT OF SH. J. R. ARYAN, DISTRICT & SESSIONS
JUDGE(NORTH EAST) DISTRICT,KARKARDOOMA COURTS, DELHI
SC No.42/12
Unique ID Case No.02402R0126912012
State Vs. Rajeev
s/o Suresh
r/o B-2/303, Nand Nagri, Delhi
FIR No. 458/11
PS: Nand Nagri
U/s 342/367/377 IPC
Date of institution of case :- 08.06.2012
Date of reserving the case for orders :- 13.09.2013
Date of passing of orders :- 18.09.2013
JUDGEMENT
1. Accused Rajeev has been tried for offences punishable under Section 367, 342, 377 IPC. Charge for these offences put on trial was.
That on 20.10.2011 at around 4pm, accused kidnapped a minor young boy Vijay son of Babu Lal by taking him from the B Block Park, Nand Nagri in order that victim boy Vijay may be subjected to unnatural lust by accused.
And accused then took the victim to his house and wrongfully confined him in a room preventing the victim from moving out of that room.
And finally accused voluntarily had a carnal intercourse against the order of nature with victim Vijay. Accused claimed trial by pleading not guilty to charge.
2. The prosecution case in brief is that on 20.10.2011 DD 16A Ex. PW4/A was recorded in Police Station Nand Nagri that a quarrel had taken place near bus stand, Nand Nagri. SI Yogesh Kumar PW10 took up that DD call for inquiry and with a Constable reached the spot and there he came to know that a boy had been taken to GTB hospital by PCR and accordingly he reached GTB hospital and collected MLC of victim boy Vijay. Victim was found as SC no.42/12 Page 1/14 recorded in MLC to be a case of sodomy at around 4 pm as narrated by the patient himself. MLC shows that patient had been brought in hospital at 5.15pm. Patient had been referred to Department of Surgery and there notes were recorded by Surgeon. An abrasion longitudinal at 6 'O' clock position on anal point was noticed. No semen stains and no external injury was found. Victim Vijay lodged his report as Ex. PW1/A which was recorded by SI Yogesh. As per this report, victim was a resident of B1/296, Nand Nagri and was aged 15 years. On the date of incident that is 20.10.2011, he was playing cricket in B Block Park situated nearby his house. At around 4pm accused Rajeev resident of B2/303, Nand Nagri already known to victim-informant, came to victim and asked him to accompany him. Rahul, maternal son of informant, asked accused as to where he was taking the victim and accused asked him to keep quite and accused then took victim to a washerman table lying in corner of that park and then accused took victim inside his house and then inside a room. There accused made victim to take off his pant and underwear. Accused then put his penis into the mouth of the victim and then inserted his penis into the anus of victim. Somebody arrived and accused ran away. Rahul, informant's counsin then gave a 100 no. call and PCR vehicle arrived and brought victim to GTB hospital. SI Yogesh then recorded endorsement Ex. PW10/B and got the FIR registered for offences under Section 342 and 377 IPC.
3. Accused was arrested on 08.02.2012 in this case. During medical examination of victim Vijay his underwear and pant were seized. Later on accused when arrested was got medically examined and his blood sample and underwear which he was wearing were seized and all these exhibits were got examined from FSL. Prosecution however has not been able to press this FSL report Ex. PW10/F in support of this charge as Scientific Officer had not been able to isolate DNA from exhibits except blood sample of accused Rajeev due to degradation of samples.
SC no.42/12 Page 2/144. Prosecution to prove its charge examined victim Vijay as PW1 and his cousin Rahul as PW2. Victim Vijay supporting prosecution case deposed that he was playing cricket in a park B2, Nand Nagri when at around 4 pm accused came and tried to take him alongwith him. Rahul intervened but accused made him to keep quite. Accused then took him to corner of that park where washerman table was lying and accused detained witness there and kept on asking victim to come alongwith him whereas victim kept on declining and refusing. Accused then forcibly took victim to his house and bolted the door from inside. Accused made witness to take off his pant and underwear and took off his own pant also. He started indulging in an unnatural act with victim and he in first instance put his male organ into his mouth and then inserted his male organ inside his rectum. Witness further deposed that meanwhile Rahul arrived and gave a knock on the door of the house. Accused opened the door and ran away. Rahul gave 100 no. call by his mobile phone and police arrived and took victim to GTB hospital. Witness then identified his report which was lodged by him with the Police.
5. Other witness Rahul PW2 has also supported the case and deposed that on the date of incident they were playing cricket when accused Rajeev came inside the park and tried to take Vijay alongwith him. Witness questioned accused and accused asked witness to be quite. Accused took Vijay and witness saw accused and Vijay sitting on a bench lying in the corner of the park and then accused Rajeev took Vijay to his room and witness after a while reached that room and gave a knock on the door. Accused Rajeev came out and ran away and Vijay then informed witness that accused had indulged in an illicit act with him. Witness made 100 no. call and police arrived and took Vijay to GTB hospital. This witness also reached GTB hospital.
6. Accused was defended by Advocate Sh Gaurav Vashisht, provided as Amicus for accused and accordingly witnesses were cross-examined by counsel. Counsel argued that there were contradictions in evidence of these SC no.42/12 Page 3/14 two material witnesses. Counsel submitted that victim PW1 had been confronted on material points with his earlier police statement and all this material would create serious doubt in the prosecution case and charge could not be found proved on such evidence. Counsel submitted that PW1 in cross- examination stated that they were playing cricket since about 1 or 2 'O' clock whereas PW2 stated that they had assembled for playing cricket in park at around 3.30 or 4pm. PW1 deposed that around 4 or 5 boys were playing cricket whereas PW2 has gave this number as 6 or 7 and rather he named those boys as Monu, Umesh, Rohit, Bholu, Sonu and another Monu. Counsel argued that any one of those other boys playing cricket would have been examined a witness of the fact that accused Rajeev did take victim Vijay from the park. Counsel submitted that any such independent witness would have been the best evidence but police restricted examination of witness, who was closely related to victim. Ld counsel further argued that whereas PW1 in cross-examination described cricket ball as hard plastic white colour with which they were playing cricket but PW2 has described ball as cosco green colour ball. PW1 in cross-examination stated that they were 8 or 10 persons present in the park and those other persons were just sitting or walking around but the PW2 deposed that no other person was present inside the park. Finally ld. counsel referred to the cross-examination of PW1 where victim states that Rahul came to the house of accused after about 10 to 15 minute of accused having taken victim to his house and that house of accused was around 50 yards distance. PW2 states in cross-examination that as soon Rajeev took Vijay with him, boys stopped playing cricket and this witness immediately followed them. Counsel submitted that it would be quite an improbability of accused indulging in such an offence of unnatural sexual act if witness PW2 immediately reached the house of accused.
7. As regards doctor having found abrasion longitudinal at 6 'O' clock position on the anal point, ld counsel submitted that in cross-examination SC no.42/12 Page 4/14 doctor PW6 has specifically admitted that injury as abrasion on anal point can also be possible in some other situation other than an act of sodomy. Counsel submitted that medical evidence thus would not be of conclusive nature to provide support and corroboration and charge could not be found to have been duly proved.
8. Rest other evidence is only of supporting nature. PW3 is Duty Constable in GTB hospital, who collected the parcel containing wearing clothes of the victim as well the rectal swab. PW4 is the Duty Constable, who proved DD entry 16A and then the FIR as Ex. PW4/B. ld. defence counsel also mentioned DD no.16A Ex. PW4/A to challenge the prosecution case when the initial DD was an information about a quarrel near bus stand, Nand Nagri. PW5 is a doctor from GTB hospital, who had prepared the MLC of the victim. PW6 is Senior Resident, Surgery Department, GTB hospital and had prepared notes during examination of victim and had found an abrasion longitudinal at 6 'O' clock position anal point. PW7 and PW9 are the Constables, who had joined investigation with IO. PW10 is the Investigation Officer and PW8 had taken exhibits to FSL. Accused when examined under Section 313 CrPC to explain incriminating evidence, describing entire evidence as wrong and false and describing medical evidence as falsely created evidence against him, came up with a plea that he was falsely implicated for the reasons that some time in the year 2010, he happened to have had a quarrel with Rahul and Rahul had an enmity with him and got him falsely implicated. Accused then examined his sister-in-law as DW1, a witness in his defence. This witness deposed that on 20.10.2011, she was present in the house and at no point of time accused ever brought any such boy victim Vijay inside the house and it is only after 3-4 months that she came to know that accused had been implicated.
9. Ld. Addl. PP argued that there appears no reason at all to not believe testimony of victim PW1. It is submitted that victim had no reason at all to SC no.42/12 Page 5/14 get accused implicated and then depose on oath falsely against him. It is argued that victim is a young boy whose testimony gets due support from medical evidence and there was no delay in recording the FIR. I have appreciated all these contentions and arguments.
10. In a case of a girl of tender age subjected to criminal act of unnatural offence, accused came to be acquitted in an appeal by the High Court on findings and observations that testimony of the victim child was lacking any corroborative/supporting evidence. Hon'ble Supreme Court in an appeal held why should the evidence of girl or women, who complained of sexual molestation be viewed with spectacle fitted with lenses tinged with doubt, disbelieve or suspicion. It is further held that accused cannot be permitted to insist on corroborative evidence even if taken as whole case spoken by the victim strikes judicial mind as probable. In that case appeal was allowed by the Hon'ble Supreme Court and case is reported as 2007 (1) SCC 627 State vs. Kurissam. In the present case question before the Court is whether evidence of the victim child PW1 Vijay inspires confidence as to its creditability and acceptability or whether it is liable to be disbelieved because of contradictions and other infirmities argued and pointed out by the ld. defence counsel. It appears to be a fact that victim child soon after the incident was brought to GTB hospital by PCR police officials and victim himself disclosed to the doctor that he had been sodomised. His complaint statement Ex. PW1/A was recorded in the hospital by SI Yogesh Kumar PW10 and on the basis of that statement present case FIR was registered at 6.40pm. Victim child was brought to hospital alone, not accompanied by anybody else and all these circumstances suggest that a prompt and uncoloured version of the incident came to be narrated by him to the doctor as well Police. Evidence of the victim no where suggests any circumstance or reason that he would get the accused falsely implicated. Defence put to him in cross-examination that since accused happened to have had a quarrel with SC no.42/12 Page 6/14 Rahul, cousin of the victim, a view years ago that victim got this case registered on false allegations and deposed against accused at the instance of Rahul, prima facie appears far away from any acceptability or even a probability. Prompt reporting of the matter with the police excluding any chance of deliberation or concoction to my view provides a due support to the testimony of the victim child. ld. counsel read out some contradictions like at what time the boys including victim had assembled in the park for the cricket game or that how many boys they were in that game of cricket or that how many other persons were there in the park. These contradictions are to be examined from the view point of the intelligence level of the witness, his grasp or usual and general awareness. PW1 in cross-examination has deposed that accused when arrested in this case a period of 10 to 11 months had elapsed since the incident. Infact accused had been arrested after about 4 months of the incident of this case and infact on being pin-pointed and identified by victim-witness that police had apprehended accused. Victim- witness describing period almost the double may suggest rather a level of his understanding and intelligence and cannot be commented seriously to cast doubt on his veracity. Viewed and analysed in such circumstances, the contradictions pointed out by ld. defence counsel to my view fail to challenge the veracity of victim witness so as to disbelieve his evidence.
11. Ld. counsel Sh. Vashisht argued on the point of improbability of the alleged incident. Counsel submitted that PW1 had been confronted with his complaint statement Ex. PW1/A where witness had not mentioned any such fact that before being taken to his house accused had brought him to a corner of the park, detained him for sometime and kept on insisting upon victim to accompany the accused. Counsel submitted that not only all these facts were missing from the report, even if PW2 would have seen and observed victim being taken to corner of the park and detained there for sometime, he alongwith other boys playing cricket in the ground would have followed SC no.42/12 Page 7/14 immediately and they could have prevented accused from indulging in such a criminal act. I have considered this arguments of ld. counsel. The situation can be seen and viewed that accused took victim in his company and then no other boy including Rahul apprehended or perceived any mischief in the brain of accused and as a natural human behaviour they reacted that victim would come back to them. No such abnormal unusual conduct or behaviour can be perceived of PW2 or of the victim which could suggest any falsity in their evidence. Certainly the unnatural offence committed by accused must be of a very small duration and it is not suggested from the circumstances of the case that incident was absolutely improbable.
12. Ld. counsel argued that the alleged act of unnatural sexual abuse of the victim was quite improbable when the house where accused is alleged to have committed offence was in occupation of a family and DW, sister in law of accused has deposed specifically that on the alleged date of incident, accused had not brought anybody inside the house. Ld. counsel relied upon a Supreme Court judgement reported Sadashiv Ramrao Vs. State of Maharasthra, 2007 (1) SCC ( Cri ) 161 in support of that plea of improbability of the commission of offence. I have given consideration to this contention.
13. DW1 is the sister in law of accused and she deposed that her house B2/303, Nand Nagri, Delhi comprised two rooms situated on the ground floor and it was a three storied building. She used to reside on the ground floor and accused Rajeev was residing on the first floor. She then deposed that accused Rajeev had remained present in the house throughout the day on 20.10.2011 and nobody else came inside the house. Testimony was challenged as to how witness would be specific on the fact that accused remained present throughout the date on 20.10.2011 and in cross-examination witness stated that she was unable to give date of any important occasion like festival of Deewali as to on what date in the year 2011 it fell or that who else entered and visited her house on 01.09.2013 or what places accused Rajeev SC no.42/12 Page 8/14 had remained or visited on 01.10.2011. This statement in cross-examination reasonably reflects that veracity of her statement that Rajeev remained present inside the house throughout the day on 20.10.2011 was to be taken with pinch of salt and it did not prove or even probabilise the defence.
14. Judgement relied by ld. counsel thereby becomes distinguishable. In the reported case Hon'ble Supreme Court held that act of committing rape would have been highly improbable when a large number of persons were present near the vicinity and such a crime would have been highly improbable that prosecutrix could not make any noise or get out of the room when being assaulted by the doctor when she was an able bodied woman. In the present case as it has been held in the preceding paragraph that victim is a tender age child who was forced to submit to the criminality of accused which might have taken a very little time. This contention accordingly fails to provide any support to the defence of accused.
15. Support is coming to the evidence of the victim from the medical report Ex. PW6/A. Doctor found abrasion in the anal point. In cross-examination though a question was put to the doctor and he answered in affirmative that such an abrasion injury could also be possible in some other situation than the act of sodomy but then only a suggestion is not sufficient to displace this supporting evidence. It is none of the case of accused put to the doctor if such an abrasion was old in duration so as not to coincide with the incident narrated by the victim. Medical evidence as such provides a due support and corroboration to evidence of the victim.
16. Counsel argued that even arrest of accused was not duly proved when witnesses were contradictory on that point. PW1 victim at whose instance accused was arrested has deposed in cross examination that accused was apprehended from near a liquor shop which is contrary to prosecution case that victim informed PW10 that accused arrived his house and PW10 then in the company of the victim reached house of accused and apprehended SC no.42/12 Page 9/14 accused in front of his house. Such contradictions become not mush relevant when accused already known to the victim had been named in the FIR and the offence committed by accused had already been described in the FIR. Any such contradiction cannot render prosecution case unacceptable.
17. Ld. defence counsel submitted that no support is coming from the FSL report. Contention considered. Report shows that DNA profile could not be generated due to degradation of the samples. It appears to be matter of record that wearing clothes of the victim had been seized on the date of incident itself but still these clothes were sent to FSL somewhere in the end of April, 2012, after about six months of the incident. It was a serious lapse on the part of the Investigating Officer to have delayed the deposit of material samples with the FSL which resulted in degradation of the samples. It is well settled law that for lapse or inaction on the part of the Investigating Officer, prosecution should not be made to suffer. Senior Police authorities to look into all these aspects and take suitable action. Same inaction is reflected on the part of Investigating Officer in effecting arrest of accused in such serious crime but then accused should not be allowed to take benefit of these inactions and lapses.
18. ld. counsel argued that initial daily diary no.16A in this case had recorded an information that an incident of quarrel had taken place near bus stand Nand Nagri and admittedly that 100 no. call was given by PW2. Counsel submitted that PW2 could have described the incident as had taken place and not merely to describe it as a quarrel. The point could have been appreciated if it was put to PW2 and he had an opportunity to explain it. This contention of ld. defence counsel to my view fails to create a serious doubt in the prosecution case.
19. To my view testimony of victim witness PW1 suffers no infirmity and it is believable. This testimony corroborated by prompt reporting of the matter to the Police and then supported by medical evidence proves the fact SC no.42/12 Page 10/14 that accused indulged in an act of unnatural carnal intercourse with the victim and also indulged in an unnatural obnoxious act of inserting his penis into the mouth of the child. Before committing this offence accused took away child from the park and that amounts to taking away the victim by way of kidnapping and for committing the offence. Accused confined victim inside room. Prosecution succeeds in proving its charge for offences punishable under Section 367, 342 and 377 IPC. I convict accused for these offences.
Announced in the open Court ( J R ARYAN )
on this 18th day of September, 2013 District & Sessions Judge(NE)
Karkardooma Courts,Delhi
SC no.42/12 Page 11/14
IN THE COURT OF SH. J. R. ARYAN, DISTRICT & SESSIONS
JUDGE(NORTH EAST) DISTRICT,KARKARDOOMA COURTS, DELHI SC No.42/12 Unique ID Case No.02402R0126912012 State Vs. Rajeev s/o Suresh r/o B-2/303, Nand Nagri, Delhi FIR No. 458/11 PS: Nand Nagri U/s 342/367/377 IPC Date of institution of case :- 08.06.2012 Date of reserving the case for orders :- 18.09.2013 Date of passing of orders :- 20.09.2013 ORDER ON SENTENCE
1. Accused Rajeev has been convicted under Section 367, 342 and 377 IPC. Matter has been heard on the point of sentence from both sides. Ld. Addl. PP submits that a minor young boy was subjected to sexual abuse which may have a long lasting traumatizing impact on his mind and accused indulging in such heinous crime should be awarded the maximum sentence. It is further submitted that besides having committed such a heinous crime, accused when arrested and brought to GTB hospital for his medical examination, he misbehaved with the doctor and was smelling alcohol and these facts are recorded in the MLC.
2. Ld. counsel Sh. Gaurav Vashisht submitted that accused is not involved in any other offence and is not a previous convict and he is a young boy, who lost his parents in very young age and has been brought up by sister of his mother, who is today present in the Court. Ld. counsel further pointed out that victim Vijay in this case is also present with his mother and they too have forgiven accused and they also do not want accused to go again in jail in this case. Counsel submitted that accused had remained in jail for about 17 SC no.42/12 Page 12/14 months and ld. counsel replied upon Supreme Court judgement reported as Chitranjan Dass vs. State of UP AIR 1974 SC 2352. In that case in a conviction under Section 377 IPC, the sentence was reduced by the Hon'ble Supreme Court by confining it to the period undergone and that period was a little more than two months. Counsel further relied upon Andhra Pradesh High Court judgement reported as B Madhu vs. State 2008 STPL 28839. In a conviction under Section 377 IPC in the circumstances that accused was a young boy studying in intermediate and cordiality had prevailed between between the families, sentence was reduced to period undergone with a fine of Rs.5000/-. Counsel then also referred to Rajasthan High Court judgement in a case Sukhdeo Singh vs. State of Rajasthan 2002 STPL 45. In that case where accused had been awarded sentence of one year imprisonment in a conviction under Section 377/511 IPC, sentence was reduced to period undergone which was around eight months and finally ld. counsel relied upon Gauhati High Court judgement reported as Ratan Mia vs. State of Assam 1987, STPL 13102. In that case in a conviction under Section 377 IPC, sentence of one year imprisonment was reduced to period undergone which was seven months. I have appreciated these arguments.
3. There is spurt in the offences where young boys and girls are targeted for sexual abuse and assault in recent times and certainly such pervert brains, who indulge in such criminal activity, need to be tamed. In the present case subsequent behaviour of accused is exhibited in the MLC that he misbehaved with the doctor and was found smelling alcohol in breath. However, considering circumstances as referred to by the ld. counsel that accused has no other previous involvement or conviction in any other criminal case and is a young boy and that there is some cordiality between the family of accused as well the victim's family, I find that substantive sentence should be restricted to period which accused has already undergone but accused should be burdened with fine which may have an impact of reforming accused.
SC no.42/12 Page 13/14Accordingly, offence for which accused is convicted, a sentence of imprisonment is awarded which accused had already undergone with a fine of Rs.3,000/- under Section 367 IPC in default to undergo rigorous imprisonment for six months, with fine of Rs.2,000/- under Section 342 IPC with default sentence of two months imprisonment and finally with fine of Rs.5,000/- under Section 377 IPC with default sentence of six months rigorous imprisonment.
Announced in the open Court ( J R ARYAN )
on this 20th day of September, 2013 District & Sessions Judge(NE)
Karkardooma Courts,Delhi
SC no.42/12 Page 14/14