Delhi District Court
State vs . Sunil Kumar on 1 July, 2010
IN THE COURT OF SH. DEEPAK DABAS METROPOLITAN MAGISTRATE(CENTRAL-04):DELHI FIR No. 109/2008 ID R0040692009 U/s. 377 IPC PS Hauz Qazi State Vs. Sunil Kumar JUDGMENT
1. Sr. No of case 59/2
2. Date of commission of offence 22.11.2008
3. Name of complainant Aditya
4. Name of accused Sunil Kumar
s/o. Sh. Hakim Lal
r/o. 534 Kucha
Patiram Sita Ram
Bazar Delhi.
5. Offence complained of U/s. 377 IPC
6. Plea of accused Pleaded not guilty
7. Final order Convicted
8. Date of such order 25.6.2010
BRIEF REASONS FOR SUCH DECISION:-
1. The accused has been sent for trial on the allegation that on 22.11.2008 at about 8.00 PM at House No. 534 Kucha Patiram, Sita Ram Bazar, Delhi within the jurisdiction of 109/2008- HQ page1/39 police station Hauz Qazi he had committed carnal intercourse against the order of nature with child namely Aditya s/o. Sh. Sukhdev aged about seven years.
2. After completion of investigation, chargesheet was filed. Accused was summoned and provision of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused in Hindi language and a charge for offence punishable u/s. 377 IPC was framed against accused to which he pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined following eleven witnesses in support of its case.
5. PW1 is Sh. Sukhdev i.e. the father of child; PW2 is HC Randhol Singh i.e. the duty officer; PW3 is Master Aditya i.e. the complainant/ victim; PW4 is Smt. Bhuri Devi i.e. mother of PW3 i.e. Master Aditya; PW5 is Dr. Nalini; PW6 is Dr. Amit Khanna; PW7 is Dr. Chitranjan Behra i.e. Assistant Professor from MAMC; PW8 is HC Jagdev Singh; PW9 is Ct. Narender; PW10 is SI Rajpal Sharma i.e. investigating 109/2008- HQ page2/39 officer and PW11 is Dr. Anil.
6. Thereafter, prosecution evidence was closed on 21.1.2010 and statement of accused was recorded on 22.3.2010 wherein accused denied the allegations against him and stated that he had been falsely implicated. He further stated that false case had been made out against him and he is innocent. Accused examined Sh. Dinesh Gupta as DW1 in his defence and thereafter defence evidence was closed on 24.4.2010.
7. I have heard Ld APP for the state and Ld counsel for accused and have also gone through the file carefully.
8. The testimony of witnesses can be summarised as follows:
9. PW1 Sh. Sukhdev testified that on 23.11.2008 he was residing at H NO. 901 Gali Inderwali Kucha Patiram alongwith his family consisting of his wife and three children. He further stated that on 22.11.2008 his children were playing on the terrace of the house and accused who was residing in the flat in front of his house had called his children to give a kite and his sons namely Akshay and Aditya went there. He further stated that his younger son namely Akshay came back 109/2008- HQ page3/39 earlier and his elder son Aditya came back after about 30 minutes. He further stated that Akshay had informed his mother that Aditya had gone to the house of accused. He further stated that when Aditya came back he was slapped by his mother and he went to sleep. He further stated that on the next day when his son Aditya went to toilet he started crying due to bleeding and his mother rushed to him and he told her that accused had done wrong act with him and accused had also threatened him. He further stated that thereafter he made call at number 100 and police arrested accused vide memo which is Ex. PW1/A. This witness was cross examined by Ld APP for state.
10. In his cross examination by Ld APP for state, PW1 stated that police had reached the spot at about 7.00 AM. He admitted that police had inquired about the incident from him and had also recorded his statement. He also admitted that police had also recorded statement of his son Aditya. He also admitted that police had prepared site plan at his instance which is Ex. PW1/B. He also admitted that he had handed over the underwear of Aditya to police which was seized vide 109/2008- HQ page4/39 memo which is Ex. PW1/C. He further stated that he do not know whether underwear of Sunil was also seized. He also admitted that police had conducted personal search of accused in his presence and accused was arrested on 24.11.2008 and his disclosure statement was also recorded. He also admitted that police had taken his son as well as accused for medical examination on 23.11.2008 and they were examined only on 24.11.2008 as no expert was available due to holiday on 23.11.2008. He identified the underwear of Aditya which is Ex. P1.
11. In his cross examination by Ld defence counsel, PW1 stated that police arrived at about 7.00 AM on 23.11.2009 and remained there for about 10-15 minutes. He further stated that PCR van had not come but two police persons had come on motorcycle. He further stated that police had inquired from him on the ground floor and accused was apprehended from his house. He further stated that police had taken him and Aditya to the police station alongwith accused and 3-4 other persons had also accompanied them whose name he do not remember and from the police station they went to LNJP 109/2008- HQ page5/39 hospital for medical examination. He further stated that he never accompanied police to the house of accused. He further stated that police had also inquired from his younger son namely Akshay on 23.11.2008 but he again stated that police had never inquired from Akshay. He further stated that he had handed over the underwear of his son to the police at the police station. He further stated that he don't remember whether there were blood stain on it. He further stated that he do not remember whether doctor had obtained his signatures after medical examination of his son. He further stated that he was present with his son in the room where his son was medically examined. He further stated that his son was studying in class one at time of incident. He further stated that he had put his signatures at the instance of police on various papers but he do not know what was written on them. He further stated that doctor had prepared some papers on 23.11.2008 but he don't know their contents. He further stated that his wife never visited police station with him. He further stated that at time of incident he was at his home. He denied the suggestion that he had demanded a sum of Rs. 10 lacs from accused and when 109/2008- HQ page6/39 he failed to get it accused was falsely implicated in present case.
12. PW2 HC Randhol Singh testified that on 24.11.2008 he was posted at police station Hauz Qazi as duty officer and on that day on receipt of rukka from Ct. Narender he recorded the FIR, copy of which is Ex. PW2/A.
13. PW3 Master Aditya i.e. complainant/ victim deposed that while he was playing outside his house, accused had called him to his house and did wrong act with him and thereafter let him go and at his house he was beaten up by his mother. PW3 was cross examined by Ld APP for state.
14. In his cross examination by Ld APP for state which has been recorded in question-answer form, PW3 stated that blood had come out on the next day morning while he had gone to answer the call of nature. PW3 further stated that he had signed on the statement recorded by the police uncle. The witness identified his signatures on Ex. PW3/A. Witness also correctly identified the accused.
15. In his cross examination by Ld defence counsel, PW3 denied the suggestion that Sunil uncle had never called him to 109/2008- HQ page7/39 his house. PW3 stated that his parents used to make him understand for deposing against accused. He denied the suggestion that Sunil uncle had done nothing wrong with him. He stated that his family members were at his house when Sunil uncle had called him. He further stated that his house is situated on the upper floor. He admitted that house of Sunil uncle is situated in other Gali. He voluntarily stated that house of Sunil uncle is in front of their house. He admitted that house of Sunil uncle is also situated on the upper floor. He further stated that his younger brother is studying in class one. He further stated that he had given his statement to police uncle. He further stated that he had given his statement to the police in the police station. PW3 further stated that he do not remember the date. He admitted that whatever statement was given by him to police was at the instance and asking of his parents. He denied the suggestion that the present case is a false one.
16. PW3 was recalled for further examination on an application moved by Ld APP for state u/s. 311 cr.p.c.
17. In his further examination-in-chief, PW3 stated that 109/2008- HQ page8/39 Sunil uncle had asked him to come silently without informing mother as he is having kites in his house and he alongwith his brother went there. He further stated that thereafter uncle switched on the TV. He further stated that in the meantime his brother had go to answer the call of nature and he also wanted to go but uncle stopped him and his brother left alone. He further stated that thereafter uncle did bad act with him and he had also objected to this but uncle(accused) did not pay any heed and told him that he will give him something. Thereafter, uncle(accused) left him and gave him something and he left for his house. He further stated that his mother gave beatings to him and he slept without taking dinner. He further stated that in the morning when he went to answer the call of nature blood had come out and he narrated the incident to his mother and his mother told it to his father and his father called the police. He further stated that he don't want to say anything else.
18. PW3 was again asked to explain the 'bad act' and he stated that Sunil uncle had applied oil on his(Aditya) anus and had also applied oil upon his private part and he was made to lie with his face down and nothing else was done. He further 109/2008- HQ page9/39 stated that he do not want to say anything else.
19. In his cross examination by Ld defence counsel, PW3 stated that there are no summer vacations in his school. He further stated that he do not know till which standard his school is. He further stated that he goes to school on foot alongwith his brother. He further stated that nobody had told him that his age is 8 years. He further stated that he do not know for how many days/years he had been going to school. He further stated that he don't know the age of his brother Akshay. He further stated that his younger brother Rahul might be about 1-2 years old. He further stated that he leaves for his school at about 1.00 PM and reaches the school within two minutes. He further stated that he is having four subjects i.e. English, Hindi, Maths and EVS. He further stated that he do not know the first lesson of his English book. He further stated that he do not know where his school is situated and it's a co-ed school. He further stated that he like the game of football and he used to play the same in the house. He further stated that during the lunch time children used to scuffle with each other. He further stated that when the teacher leaves the 109/2008- HQ page10/39 room in lunch time children use to run around the desk and some of them use to fell down also. He further stated that there is no clock in the school therefore he do not know the time when the school is over and as and when the school is over all children start running for their home pushing each other.
20. He further stated that he had come to the court with his father in a train and Rashmi aunt (Bua) who is an advocate had also come. He further stated that Rashmi Bua had told him that his statement will be recorded in court. He further stated that he had come before also to the court and Rashmi Bua had not met him that day. He further stated that in the earlier statement he had not stated that uncle had asked him to come upstairs and he will give something as he feared that uncle will catch him. He further stated that on the previous occasion also uncle was sitting behind. He further stated that uncle had given something edible which looked like Walnut. He further stated that he never had Walnut before. He further stated that he had eaten one thing there itself and he took other thing to his home. He further stated that his mother also did 109/2008- HQ page11/39 not knew about said thing. He further stated that he had slept hungry as his mother had beaten him. He further stated that he had told all the facts about oil to the police. He was confronted with his statement Ex. PW3/A where it is not so recorded. He further stated that he had also told about the edible thing to the police. He was confronted with his statement Ex. PW3/A where it is not so recorded. He further stated that police had come to his house in police dress and they took them to the police station and he had narrated the incident and at that time his father was also present. He denied the suggestion that police had asked him to state only those facts which his father says. He further stated that they stayed there for about one minute and during this period his signatures were taken on one paper. He identified his signatures on Ex. PW3/A. He further stated that thereafter they came to the home and thereafter went to the hospital on the next day on their own. He further stated that police did not meet them in the hospital. He further stated that on the very day when they went to the police station, the police had come to his house and had taken his signatures on Ex. PW3/A. He further stated that Sunil uncle 109/2008- HQ page12/39 was not called in the police station. He denied the suggestion that some days prior to the incident there was a quarrel between his mother and wife of Sunil uncle. He also denied the suggestion that his mother had falsely got the case registered in order to take revenge. He also denied the suggestion that he was hurt by some school-mates while they were returning back home. He further denied the suggestion that false case has been registered taking advantage of the above injury. He also denied the suggestion that his father and Rashmi Bua had make him understand the statement. He also denied the suggestion that he is deposing falsely.
21. PW4 Smt. Bhuri Devi testified that on 22.11.2000 she and her husband were at home and their sons namely Aditya and Akshay were playing outside the house. She further stated that when her children were playing, accused had called them to his house to give a kite to them and when they told him that they will come after informing parents accused asked them not to inform parents by putting his finger on his lips and her sons went to the house of accused. She further stated that after some time Akshay left the house of accused telling that he 109/2008- HQ page13/39 want to answer call of nature and Aditya was asked to watch TV there by accused. She further stated that she started searching for her children and went to the terrace and saw her younger son coming down from stairs. She further stated that when she inquired from Akshay, he told her that they had gone to the house of accused and Aditya is watching TV in the house of accused. She further stated that her son told her that accused did not allow Aditya to come and she went to inform her husband about this and thereafter, she asked accused to send Aditya and her son Aditya came back. She further stated that her son Pawan @ Aditya did not tell anything at that time as he was scared and she gave 2-3 slaps to him. She further stated that on next day when Aditya went to answer call of nature, he started shouting on seeing blood coming from his private part and when she inquired about it her son told that accused had done bad act with him after making him lie down. She further stated that she informed her husband about this and her husband called the police and accused was arrested by police. She admitted that the incident happened on 22.11.2008.
109/2008- HQ page14/3922. In her cross examination, PW4 stated that she is residing at 1825 Kucha Patiram for last about 8-10 years and accused came to live nearby thereafter. She further stated that her son comes back from school at about 1.00 PM and if he feels, he goes to play outside the house with his friends. She further stated that her statement was never recorded by police and she never went to hospital alongwith her son. She further stated that she did not tell police that on 22.11.2008 her sons Aditya and Akshay were playing outside the house. She further stated that she had told police that she alongwith her husband were present at their house when accused had called her son to give kite. She further stated that house of accused is across the gali in front of their house and accused is also residing on the second floor. She further stated that before this incident her son never went to house of accused. She further stated that her husband used to go for work at about 7.00 to 9.00 AM and used to return in late hours of night i.e. at about 1.00 AM. She admitted that during this period her children sometime used to remain at home and sometime they go to play with other children. She further stated that after coming 109/2008- HQ page15/39 to know that accused did not allow her son (Aditya) to come, neither she nor her husband went to the house of accused. She further stated that thereafter she informed her husband that children had gone to the house of accused and her husband asked her to call the children back and on this accused came out of his house. She was confronted with her statement mark X where it was not so recorded. She further stated that she had asked accused to send Aditya on this accused told her that Aditya is watching TV. She was confronted with her statement mark X where it was not so recorded. She further stated that there was a time-gap of about 20-25 minutes between her getting the information that Aditya is in house of accused and accused telling her that Aditya is watching TV. She further stated that her son came back at about 9.00-9.15 PM and he did not complain about any pain and thereafter she prepared the dinner. She further stated that she had told police that Aditya on seeing blood coming from his private part started shouting. She was confronted with her statement mark X where is it not so recorded. She further stated that her son narrated the incident to her after coming from toilet and she 109/2008- HQ page16/39 told her husband about it who in turn called the police from his mobile phone. She further stated that police came to the spot after about half an hour and her husband did not accompany police to the house of accused. She further stated that thereafter accused was arrested by police and Aditya was also called by police in the street and whatever inquiry was done by police was audible to her at her second floor house. She further stated that police had taken away accused and her son and her husband had also accompanied them and her son came back at about 5.00-5.30 PM. She further stated that she did not go alongwith her son on 24.11.2008. She denied the suggestion that her husband had demanded a sum of Rs. 10 lacs from accused in front of mohalla people. She also denied the suggestion that a video was prepared to this effect. She denied the suggestion that there was a dispute between her husband and accused due to which her husband used her son as a tool for defaming accused and falsely implicated him present case. She also denied the suggestion that her son sustained injuries while playing with other children.
23. PW5 Dr. Nalini deposed that she was working as 109/2008- HQ page17/39 CMO in Casualty Department in LNJP hospital and she identified the handwriting of Dr. Naresh Tiwari on the MLC which is Ex. PW5/A at point A who had examined the patient (sunil) under her supervision. She further stated that no fresh mark of injury or bony injury were seen and the patient was referred to Forensic Medicines for further evaluation, detailed examination and expert opinion.
24. In her cross examination, PW5 admitted that the permanent addresses of the doctors who were working as JR in hospital are available in the Administration Block of the hospital. The witness after seeing the handwriting encircled at point A and B stated that she is not very sure about the author of same and stated that it may be of Dr. Naresh Tiwari. She further stated that she use the stamp affixed on Ex. PW5/A. She further stated that the said document does not bear her signatures and it does not contain anything which shows that she was present at the relevant time. She admitted that other patients were also present in the casualty ward who were also being examined by her and she do not have personal knowledge about examination of this patient i.e. accused. She 109/2008- HQ page18/39 also admitted that accused was not physically examined in her presence. She again stated that the patient was not examined by her. She further stated that 4-5 JR were working under her supervision at that time. She denied the suggestion that she is deposing falsely at the instance of police.
25. PW6 Dr. Amit Khanna testified that on 24.11.2008 he had prepared the MLC no. 20/08 of patient i.e. accused aged about 32 years with H/o sexual assault on seven year old boy and proved the report prepared by him which is Ex. PW6/A bearing his signatures at point A and B.
26. In his cross examination, PW6 admitted that absence of smegma is not the proof of intercourse. He also admitted that he did not find any injury on person of patient including his private parts.
27. PW7 Dr. Chitranjan Behra testified that on 24.11.2008 he was working as Assistant Professor and on that day he had examined patient Aditya male aged about seven years and gave the opinion on the basis of examination of patient on MLC which is Ex. PW7/A bearing his signatures at point A. He further stated that as per his opinion possibility of 109/2008- HQ page19/39 insertion of penis or penis like object into external anal canal cannot be ruled out. He further stated that swab from perinal and anal canal were taken and were handed over to IO in sealed condition.
28. In his cross examination, PW7 admitted that Assistant Professor is the junior most post in the hierarchy of Professors. He further stated that he did not consult the Head of Department at time of giving the report or examination of patient. He further stated that the injuries mentioned in the MLC Ex. PW7/A can also be caused by hard object like stick or wood or iron rod or anything which is hard and is similar in size as that of penis.
29. PW8 HC Jagdev Singh testified that on 23.11.2008 he was working as MHCm and on that day SI Rajpal had deposited two sealed pulanda sealed with seal of RPS, the entry of which was made by him at serial no. 2088/08. He further stated that on 24.11.2008 two sealed envelops with seal of MAMC, Forensic Deptt were deposited by SI Rajpal and he made entry regarding same at serial no. 2090/08.
30. In his cross examination, PW8 stated that on 109/2008- HQ page20/39 23.11.2008 the pulanda were given to him at about 9.00 PM. He further stated that there is no entry to this effect that the pulanda were given at about 9.00 PM. He further stated that he do not know the time about deposit of pulanda on 24.11.2008.
31. PW9 Ct. Narender testified that on 23.11.2008 he was posted at police station Hauz Qazi and on that day at about 8.45 AM on receipt of call about illegal act with a child aged about seven years at house no. 901 Kucha Patiram, Sitaram Bazar, Delhi he alongwith SI Rajpal went to the spot where one child namely Aditya alongwith his father met them and thereafter they took the child and his father to JPN hospital for getting the child medically examined. He further stated that accused was also taken alongwith them to the hospital. He further stated that doctor referred them to MAMC but they returned since no expert was available being Sunday and came back to the police station and directed the child, his father and accused to come on next day in the police station. He further stated that on next day they went to MAMC where the child and accused were got medically examined and doctor handed 109/2008- HQ page21/39 over two sealed pulanda to IO. He further stated that thereafter IO prepared tehrir and got the case registered through him and after getting the FIR registered he came back to the spot and handed over the copy of FIR and rukka to IO and thereafter accused was arrested and his personal search was also conducted vide memo which is Ex. PW1/A and Ex. PW1/D and thereafter accused was put in the lockp. This witness was cross examined by Ld APP for state.
32. In his cross examination by Ld APP for state, PW9 stated that IO had recorded his statement. He admitted that IO had also recorded the statement of child Aditya. He also admitted that on 23.11.2008 IO had prepared the pulanda of underwear of child Aditya and had sealed it with seal of RPS and had seized the same vide memo Ex. PW1/C. He also admitted that IO had also seized two sealed envelops given by expert at MAMC vide memo which is Ex. PW9/A. He also admitted that IO had also recorded disclosure statement of accused which is Ex. PW1/E. He also admitted that he had forgotten some facts due to lapse of time.
33. In his cross examination, PW9 stated that IO had 109/2008- HQ page22/39 inquired from neighbours who were standing there but he could not tell their name. He further stated that he had gone to the house of accused which is on the second floor. He admitted that the spot of occurrence and the house of complainant is in thickly populated area. He further stated that they stayed in the house of complainant for about 15 minutes and mother of child produced the underwear of Aditya and the same was taken into possession by IO. He further stated that no other article was shown or given to IO at the spot. He further stated that first of all they went to the police station from spot and then to the hospital. He further stated that they had made entry regarding their arrival in the police station and at this juncture the underwear was deposited in malkhana. He further stated that underwear of accused was also seized in the police station and it was also sealed with seal of RPS. He further stated that the seal was handed over to him and he had deposited the same in the malkhana and no DD entry to that effect was made. He further stated that he do not remember whether any departure entry for going to hospital with accused and child was made. He further stated that both the child and 109/2008- HQ page23/39 accused were examined and no injury were found on them and thereafter they came back to the police station at about 12.00 Noon. He admitted that IO had allowed the accused and child to go since IO did not had any proof of commission of offence till then. He further stated that on next day he alongwith IO went to the house of complainant at about 9.00 AM for taking the child for medical examination and accused was also called. He further stated that nothing was seized on that day. He further stated that on the first day i.e. on 23.11.2008 the clothes were taken into possession. He further stated that they remained in MAMC till 5.30 PM and there the statement of complainant was recorded and IO had also arrested the accused and arrest memo was also prepared. He further stated that after returning to the police station from MAMC certain other documents were also prepared on which his signatures were taken. He denied the suggestion that he had signed all the papers in the police station at the instance of IO. He also denied the suggestion that he had never joined the investigation or that IO had obtained his signatures at the police station.
109/2008- HQ page24/3934. PW10 SI Rajpal Sharma testified that on 23.11.2008 he was posted at police station Hauz Qazi and on that day on receipt of DD No. 8A he alongwith Ct. Narender and Ct. Surender went to the spot where the child Aditya met them alongwith his father and he after making inquiry recorded statement of child which is Ex. PW3/A. He further stated that accused Sunil was also present at the spot and he had prepared the pulanda of underwear of child and accused and had sealed it with seal of RPS and thereafter took both the child and accused to JPN hospital for medical examination but they could not be examined and the DD No. 8A was kept pending for discussion with his seniors. He further stated that on 24.11.2008 he took both the child and accused to MAMC and they were medically examined and thereafter he got the FIR registered through Ct. Narender. He further stated that thereafter, he alongwith the child, father of child and accused went to the spot where he prepared the site plan at the instance of father of child and in the meantime Ct. Narender came to the spot and handed over to him copy of FIR and tehrir. He further stated that thereafter he interrogated the accused and 109/2008- HQ page25/39 arrested him. He further stated that in the MAMC two sealed pulanda were seized by him vide memo which is Ex. PW9/A and the pulanda was deposited in the malkhana. He further stated that during investigation the sealed pulanda were sent to FSL, Rohini for expert opinion and after completion of investigation he prepared the challan. He identified the case property i.e. underwears of the child well as of accused and the same are Ex. P1 and P2 respectively.
35. In his cross examination, PW10 admitted that the place where the complainant reside is a thickly populated area. He further stated that he did not inquire about incident from neighbours. He further stated that he had recorded the statement of complainant after about 15-20 minutes. He further stated that he did not record statement of any other person on 23.11.2008. He admitted that doctor did not disclose any injury either on the person of child or the accused after their examination. He further stated that in the hospital itself the complainant and accused were allowed to go. He admitted that 12-13 hours had already passed since the incident when the case property were taken into possession.
109/2008- HQ page26/39He further stated that he did not find any previous enmity between the two parties and he had not investigated about it. He further stated that on 24.11.2008 he had called the accused and he took them for medical examination. He further stated that from hospital they went to the spot where accused was arrested. He further stated that he had visited the spot after 24.11.2008 also for the purposes of investigation but do not remember the date, time or the name of the person whom he had inquired. He voluntarily stated that he had went there after about 8-10 days. He further stated that he had neither mentioned this fact in the case diary nor prepared any DD entry to this effect. He further stated that he had not read the FSL report before filing the same in the court. He admitted that he had filed the report alongwith letter which is Ex. PW10/DA. He denied the suggestion that he had conducted the investigation in a tainted manner and had falsely implicated the accused at the instance of complainant.
36. PW11 Dr. Anil testified that on 23.11.2008 he was working as junior resident in LNJP hospital in casualty department and on that day patient namely Aditya was brought 109/2008- HQ page27/39 with history of sexual assault on 22.11.2008. He further stated that he found the patient was conscious and oriented and no external injury was found on the body of patient. He further stated that no external injury mark on the anal region was found and there was no bleeding in the rectum at time of examination. He further stated that he examined the patient and referred him to Paediatrics Surgery and Forensic Department for expert opinion and further examination and proved the report prepared by him which is Ex. PW11/A bearing his signatures at point A.
37. In his cross examination, PW11 stated that injury on the external part and internal part of anal, would occur depending upon the size/force/mode of insertion of foreign material/ matter. He further stated that internal injury may occur upon insertion of penis of adult size in the anal of child of victim's age though external injury may or may not occur. He further stated that it also depends whether any lubrication was used or not at time of insertion. He also stated that no lubrication or remains of lubrication were found on the anal part of child when he examined the child.
109/2008- HQ page28/3938. Accused in his statement recorded u/s. 313 cr.p.c. denied the evidence that has come on record against him and stated that he is innocent and has been falsely implicated and no such incident ever happened. Accused examined DW1 in his defence.
39. DW1 Sh. Dinesh Gupta testified that he is running shop no. 835, Kucha Patiram in the name and style of Shekhar Electric Works and knew the accused. He further stated that he came to know that Sukhdev who runs shop in front of his shop had got instituted the case against accused and after about 5-6 months he came to know that Sukhdev had told people that he will withdraw the said case if he gets the money. He further stated that thereafter he called Sukhdev to his shop and talked about it and Sukhdev told him since there was continuous dispute between his wife and wife of accused therefore, he had got the accused falsely implicated in order to get the house vacated. He further stated that he tried to persuade Sukhdev to allow accused to live there and stated that he cannot give the amount of Rs. 15 lacs being poor person. He further stated that on his insistence the amount was reduced to Rs. 10 lacs.
109/2008- HQ page29/39He further stated that he had recorded said conversation in a spy-pen and the same was converted into a CD which is Ex. DW1/A and Ex. DW1/B and the conversation of Sukhdev is mark A.
40. In his cross examination by Ld APP for state, DW1 stated that he is running the business of tents & lights. He further stated that he don't remember the exact date of recording the conversation but it was about six months back. He further stated that he had got prepared the said CD from Palika Bazar, Cannought Palace. He further stated that he also do not remember the exact date when the CD was prepared from spy-pen. He denied the suggestion that he had got addition in the CD and had got done the transcription falsely and have deposed falsely in order to save accused.
41. In the present case the accused has been charged for offence punishable u/s. 377 IPC and section 377 IPC is reproduced herein for the sake of convenience and ready reference.
42. Section 377 IPC:- Unnatural offences: whoever voluntarily has carnal intercourse against the order of nature 109/2008- HQ page30/39 with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
43. The basic contention of Ld defence counsel is that the prosecution has miserably failed to prove all the essential ingredients of the offence punishable u/s. 377 IPC beyond a reasonable doubt and therefore accused be acquitted. On the other hand it was submitted by Ld APP for the state that the prosecution has successfully proved its case beyond reasonable doubt and therefore the accused be convicted for the said offence.
44. In order to prove its case the prosecution has examined as many as eleven witnesses. However, the testimony of PW3 i.e. Master Aditya (complainant/ victim) is most important. It is pertinent to mention that PW3 Master Aditya is a child aged about 7-8 years and the law regarding the appreciation of evidence of child witness has been discussed in detail by the Hon'ble Supreme Court in the following cases:-
109/2008- HQ page31/39(i) Panchhi vs. State of UP reported as (1998) 7 SCC-177
(ii) Suryanarayana vs. State of Karnataka reported as 2001 (1) SCALE 7
45. In the aforesaid cases the Hon'ble Supreme Court held that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatised. It was further held it is not the law that if a witness is a child his evidence shall be rejected even it is found reliable. It was further held that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. It was further held that it is more a rule of practical wisdom than a law. It was further held that the evidence of child witness cannot be discarded only on the ground of teenage and if the evidence is shown to have stood the test of cross examination and there is no infirmity in the evidence then a conviction can be based upon such testimony alone. It was held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. It was also held that some discrepancies in the 109/2008- HQ page32/39 statement of the child witness cannot be made the basis for discarding the testimony and discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of the child witness. It was further held that while appreciating the evidence of child witness the courts are required to rule-out the possibility of the child witness being tutored.
46. Keeping in view the aforesaid legal position, the analysis of testimony of PW3 is as follows. The examination in chief of PW3 was recorded in court on 8.7.2009. Before recording the examination in chief of PW3 all the precautions and measures as directed by the Hon'ble High Court of Delhi in the case titled as Virender vs. The State of NCT of Delhi reported as Crl Appeal No. 121/08 were taken. It is pertinent to mention that in said judgment Hon'ble Ms. Justice Geeta Mittal Judge Delhi High Court had given detailed guidelines to be followed by the trial courts while dealing with the cases of like nature. In his examination-in-chief PW3 stated that he was playing outside his house and Sunil uncle called him to his house and thereafter committed bad act with him. He further 109/2008- HQ page33/39 stated that the blood had come out on the next morning when he had gone to answer the call of the nature. He admitted that his statement was recorded by the police and the same is Ex. PW3/A. PW3 correctly identified the accused in court. In his cross examination, PW3 denied the suggestion that he was never called by the accused to his house and also that the accused had not done any bad act with him. PW3 specifically denied the suggestion that the present case is false one.
47. PW3 was recalled for examination in pursuance of an application u/s. 311 cr.p.c. moved by Ld APP for the state and a specific question was put to PW3 as to what he means by the term bad act. PW3 again reiterated the whole prosecution story in detail and specifically stated that Sunil uncle had applied oil on his(Aditya) private parts and also on his own private parts and made him lie down with his back upside. PW3 was cross examined at length by Ld defence counsel and PW3 specifically denied the suggestion that he has been tutored by Rashmi aunt and his father. PW3 had withstood the test of cross examination. A perusal of lengthy cross examination of PW3 shows that there are some inconsistencies 109/2008- HQ page34/39 and discrepancies here and there but the same are not on material aspects. It has been held by the Hon'ble Supreme Court in a number of cases that minor discrepancies here and there do not make the whole testimony unreliable and the same is not a ground for disbelieving the whole prosecution story if the testimony of witness is otherwise clear, convincing and inspire confidence.
48. The testimony of PW1 as well as PW4 i.e. father and mother of the complainant/ PW3 fully corroborates the testimony of PW3. PW1 as well as PW4 in their examination in chief recorded in court clearly and specifically stated that on 23.11.2008 when their son namely Aditya (PW3) had gone to answer the call of nature in the morning then blood started coming out from his private parts. It was further deposed by said PWs that on inquiry by them PW3 narrated the whole incident which had taken place on 22.11.2008. Both the said PWs had stated that on 22.11.2008 they were present at their house. PW4 in her testimony recorded in court specifically stated that the accused had told him that her son Aditya is watching TV in his house. PW4 had also narrated the whole 109/2008- HQ page35/39 story as told to her by her son i.e. PW3. Both of them had also passed the test of cross examination and Ld defence counsel could not elicit anything from their mouth which makes their testimony unreliable.
49. Corroboration to the testimony of PW3 as well as other PWs is also available from the medical evidence available on record. PW5 i.e. Dr. Nalini has proved the MLC of accused i.e. Ex. PW5/A. PW6 i.e. Dr. Amit Khanna had also examined the accused and proved his report Ex. PW6/A. PW6 opined that there is nothing to suggest that the accused is incapable of performing sexual intercourse. PW5 and PW6 also withstood the test of cross examination and Ld defence counsel could not shake their testimony in cross examination. PW7 i.e. Dr. Chitranjan had examined complainant/ victim/ PW3 and he stated that as per his opinion the possibility of insertion of penis or penis like object into external anal canal cannot be ruled out. PW7 deposed in detail about the injuries sustained by PW3. PW11 i.e. Dr. Anil had examined the victim/ PW3 on 23.11.2008 and he stated that there was no external injury on the anal region and there was no bleeding in 109/2008- HQ page36/39 the rectum at the time of examination. Ld defence counsel in the cross examination of PW11 specifically asked the question that if a penis of adult size is inserted in the anal portion of the child of the age of the victim, the injury to the external and internal part of the anal cannot be ruled out and it may also result into bleeding. To this question, PW11 replied that internal injury may occur though external injury may or may not occur. PW11 also stated that it depends upon the fact whether any lubricant was used or not at time of insertion. Thus, Ld defence counsel could not elicit much from the mouth of the doctors which is favourable to the accused. The investigation of the present case is duly proved by the evidence of police witnesses who have been examined in the court during the trial of the present case. Nothing has come on record in the cross examination of police officials which makes their testimony untrustworthy.
50. Ld defence counsel had vehemently argued that PW3 had not specifically stated that the male organ was penetrated inside the body of PW3 and thus the offence is not complete.
51. However, the contention of Ld defence counsel is 109/2008- HQ page37/39 without merits and it is settled law that a fact can be proved by way of oral evidence or medical evidence or scientific evidence or circumstantial evidence etc. It is also settled proposition of law that while appreciating the evidence, the evidence to be appreciated as a whole. PW3 in his testimony recorded in court gave a detailed account of the manner in which the offence was committed by the accused. PW3 specifically stated that accused had made him lie down and did bad act with him after applying oil. The medical evidence available on record clearly point towards the one and only fact that the accused had penetrated his male organ inside the body of the complainant i.e. PW3.
52. As far as defence of accused is concerned, the same is very shaky one and is not consistent. In cross examination of PW3 Ld defence counsel suggested that the accused has been falsely implicated as the wife of the accused had quarreled with his mother. Whereas in the cross examination of PW4 Ld defence counsel suggested that the accused has been falsely implicated as there was a quarrel between the accused and her husband. On various occasion Ld defence counsel had also 109/2008- HQ page38/39 suggested that the accused has been falsely implicated to extort money from him.
53. As far as deposition of DW1 is concerned, the same is also not of much help for the accused. DW1 in his evidence recorded in court could not show anything which makes the whole prosecution story doubtful. It is also pertinent to mention that the CD etc. produced by DW1 in his evidence recorded in court has not been proved as per the provisions of Evidence Act and therefore, no reliance can be placed upon it. Even if for the sake of argument the same is believed to be true and correct, even then the same does not cause any dent in the prosecution case.
54. Keeping in view the testimony of PWs and more particularly the testimony of PW3, which is fully corroborated on all material particulars by the testimony of PW1 and PW4, I am of the considered view that prosecution has proved its case against accused beyond reasonable doubt. Hence, the accused is hereby convicted for offence punishable u/s. 377 IPC.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 25th of June, 2010 MM-Central-04:DELHI.
109/2008- HQ page39/39
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE(CENTRAL-04):DELHI FIR No. 109/2008 ID R0040692009 U/s. 377 IPC PS Hauz Qazi State Vs. Sunil Kumar 1.7.2010 ORDER ON POINT OF SENTENCE:
Present: Ld APP for state.
Convict is produced from JC.
Ld counsel for convict is also present.
The case is today fixed for orders on the point of sentence. Arguments on point of sentence were heard yesterday i.e. on 30.6.2010.
It was submitted by Ld counsel for convict that the convict is the sole bread earner for his family comprising of his wife and elderly parents. It was further submitted by Ld counsel for the convict that the convict had already spent a period of more than 19 months in judicial custody during the trial of the present case. It was further submitted by Ld counsel for the 109/2008- HQ page40/39 convict that a lenient view be taken.
On the other hand it was submitted by Ld APP for state that the maximum punishment as prescribed for offence punishable u/s. 377 IPC be awarded to the convict.
I have carefully considered the submission made by Ld APP for state as well as Ld counsel for convict.
In the present case the convict has been convicted for offence punishable u/s. 377 IPC. The convict is in judicial custody since 25.11.2008 i.e. for the last more than 19 months. No previous conviction has been alleged or proved against the convict. The convict is the sole bread winner for his family.
Keeping in view the facts and circumstances, I am of the considered view that interest of justice will be served if the convict is sentenced to SI for the period already undergone by him during the trial of the present case. In the present case the offence has been committed against a young boy of 7 years of age and the said young boy namely Aditya had suffered a lot as a consequence of the offence committed by the convict against him. In view of the facts and circumstances, I am of the considered view that the present case is fit one in which 109/2008- HQ page41/39 compensation should be awarded to the victim. Consequently, in exercise of my powers u/s. 357 (3) cr.p.c. I hereby award a compensation of Rs. 25,000/- to the complainant/ injured/ victim namely Aditya. The compensation is to be paid by the convict to the complainant/ injured namely Aditya and in case of default of payment of compensation, the convict shall further undergo Simple Imprisonment for a period of two months.
It is pertinent to mention that the Hon'ble Supreme Court in a case titled as Suganthi Suresh Kumar vs. Jagdeeshan reported as (2002) 2 SCC- 420 and also a case titled as Hari Singh vs. Sukhbir Singh reported as AIR 1988 SC- 2127 had held that the court may enforce the order u/s. 357 (3) by imposing the sentence in default.
Copy of judgment as well as order on sentence be supplied to convict today itself free of cost.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 1st of July, 2010 MM-Central-04:DELHI.
109/2008- HQ page42/39