Delhi District Court
3.Title Of The Case: :State vs Hanuman on 2 April, 2014
IN THE COURT OF SH VIPIN KHARB
METROPOLITAN MAGISTRATEI (NORTH WEST)
ROHINI COURTS, DELHI
1.Case No. :12/2
2.Unique I.D. No. :02404R0040472012
3.Title of the case: :State Vs Hanuman
FIR No. 524/11, PS Mangolpuri
4.Date of institution :07.02.12
5.Date of reserving Judgment :02.04.14
6.Date of pronouncement :02.04.14
J U D G M E N T :
(a)The date of commission 11/12/11
(b)The name of complainant Ms. Rekha W/o Sh. Rajesh
R/o H.No F2/260 2nd floor, Mangol Puri,
Delhi.
(c)The name of accused Hanuman S/o Sh. Ram Aadhar Singh
R/o H.No F2/260 3nd floor, Mangol Puri,
Delhi..
(d)The offence complained of 377 IPC
(e)The plea of the accused Pleaded not guilty
(f)The final order Convicted
(g)The date of such order 02/04/14
Brief facts for the decision of the case:
1. On 11.12.2011, information was received at P.S. Mangol Puri vide FIR No 524/11 St Vs Hanuman Page 1 of 20 DD No. 26A regarding fight at H.No F2/260, Mangol Puri, Delhi. The DD was handed over to IO/SI Sukhi Ram who alongwith Ct. Dhanpal reached the spot i.e. H.No F2/260, Mangol Puri, Delhi where they met complainant Shanti and accused Hanuman. IO recorded the statement of complainant.
Complainant in her statement stated that on 11.12.2011 at about 05:00 PM her daughter 'X', 4 year old, went to the 3rd floor to play. After 1015 minutes she returned with Rs 10/ note in her hand and went to the shop at the ground floor. She returned with a toffee and told her that she is having pain in her peshaab wali jagah. On asking she told her that uncle after putting spit on his finger forcefully removed her pajami and put his finger in her peshaab wali jagah. On her crying uncle gave her money for toffee. She removed white pajami of her daughter and found that blood was coming from her peshaab wali jagah. She went to third floor with her daughter and on seeing them Hanuman got frightened. On her asking Hanuman started fighting with her. After that she called the PCR.
IO called W/Ct Kismat, who took the girl and mother to the SGM Hospital and got them medically examined. IO took the accused to the SGM Hospital and got him medically examined. IO collected the MLC and sent the exhibits to FSL Rohini. IO prepared the site plan at the instance of complainant and recording the FIR No 524/11 St Vs Hanuman Page 2 of 20 statements of the witnesses.
After the usual investigation, the charge sheet for the offence U/Sec 377 IPC was prepared against the accused.
2. The aforesaid chargesheet was filed before the court on 07.02.12, whereupon the cognizance of the offence was taken against the accused. The provisions of section 207 Cr.PC. was complied on 28.02.12.
3. After hearing the arguments, the accused was charged for the alleged commission of the offence U/Sec 377 IPC to which the accused pleaded "Not Guilty" and instead claimed trial and accordingly the case was fixed for prosecution evidence.
4. During the course of the trial, prosecution examined 13 witnesses to substantiate the accusations leveled against the accused.
5. PW1 Ct. Dhanpal was the police officer who accompanied the IO in the investigation. He deposed that on receiving of DD No. 26A he alongwith IO/SI Sukhi Ram went to the spot. He exhibited the seizure memo of accused's Pant, vest, underwear and blood gauge as Ex. PW1/A and the seizure memo of pullanda of medical FIR No 524/11 St Vs Hanuman Page 3 of 20 examination of prosecutrix as Ex. PW1/B. He exhibited the arrest memo and personal search memo of accused as Ex. PW1/C and Ex. PW1/D. He also deposed about the proceedings conducted by the IO in his presence and identified the accused in the court.
In his cross examination, he deposed that he don't know wheater IO recorded statement of shopkeeper, neighbours, landlord, prosecutrix or any other person except Complainant. He denied all the suggestions given by the counsel for the accused.
6. PW2 Complainant Rekha deposed similar to her statement given to the police and exhibited her statement given to the police as Ex. PW2/A. She exhibited the site plan as Ex. PW2/B. Seizure memo Ex.PW1/B, arrest memo and personal search memo of accused bears her signature. She gave consent for medicial examination of her daughter to the doctor and MLC Ex. PW2/C bears her signature. She exhibited the statement of her daughter recorded by IO in her presence as Ex. PW2/D. She identified the clothes worn by the accused as Ex P1, clothes of her daughted as Ex. P2 and other exhibites of her daughter as Ex. P3. She identified the accused in the court.
In her cross examined PW2 deposed that they are staying at 2nd floor of F2/260, Mangol Puri for last 7 years and accused is FIR No 524/11 St Vs Hanuman Page 4 of 20 staying at 3rd floor of the same building for the last 34 years. There is common passage for the 2nd and 3rd floor. Accused is staying without his family. Her daughter was born in the same builing. Earlier accused also used to stay at 2nd floor of the building. Her daughter often went to 3rd floor to play and she knows the accused by name. She deposed that statement of her daughter Ex. PW2/D recorded by IO was not read upon to her but read upon to her husband. In her presence IO did not recorded statement of any pubic witness. Her daughter did not tell the name of shopkeeper from whom toffee was purchased. IO did not recorded statement of shop keeper. She denied all the suggestions given by the counsel for the accused.
7. Prosecutrix 'X' deposed that Hanuman uncle did something to her and gave Rs 10 for toffee. She was called at the 3rd floor by the Hanuman uncle, who put his private part in her mouth. Hanuman uncle caused injuries at her urinal part by inserting his finger. Blood came out and there was blood on her kachi (panti). On asking by her mother she narrated the incident to her. she identified the accused in the court by pointing figure at him and said "yeh hai Hanuman uncle".
In her cross examination Prosecutrix deposed that Hanuman FIR No 524/11 St Vs Hanuman Page 5 of 20 uncle was alone. The name of shopkeeper was Lalit. Before that Hanuman uncle has never given toffee to her.
8. PW3/PW13 HC Mahavir Prasad deposed that on 11.12.2011 he was working as MHC(M), P.S. Mangol Puri and IO/ SI Sukhi Ram deposited the case property with him and he exhibited the relevant entry in register no. 19 at serial no. 5647 as Ex. PW3/A (OSR) and Ex. PW13/A (OSR).
On 22.12.2011 the case property was deposited in FSL Rohini through Ct Bablu and exhibited the copy of RC No 174/21/11 as Ex. PW3/B (OSR) and Ex. PW13/B (OSR).
On 25.06.2012 he received FSL results through Ct. Mahesh and same was handed over to IO. He exhibited the copy of receiving of FSL as Ex. PW13/C.
9. PW4 L/Ct Kismat deposed that she was telephonically called by IO and IO handed over Baby 'X' to her to get her medically examined. She alongwith 'X' and her mother went to SGM hospital and got 'X' medical examined. Doctor gave her sealed parcel which she handed over to IO. She handed over custody of 'X' to her mother.
10.PW5 HC Suresh Kumar exhibited the FIR No. 524/11 as Ex. FIR No 524/11 St Vs Hanuman Page 6 of 20
PW5/A and endorsement on rukka as Ex. PW5/B.
11. PW6 Dr. Binay Kumar SMO, SGM Hospital deposed that one female victim child alongwith her mother was brought to him and his observation were written from X1 to X2 on MLC Ex. PW2/C of victim and he referred 'X' to Gynae for detailed examinantion. On same day accused Hanuman was examined by him and exhibited the MLC of accused as Ex. PW6/A. Full pant, under garment and blood sample of the accused were taken and sealed and handed over to official concerned by him and thereafter, matter was referred to surgery for further opinion.
In his cross examination PW6 deposed that he cannot tell weather patient is present in the court or not and he is deposing on the basis of MLC prepared by him.
12.PW7 Ct. Yogender Yadav deposed that he was posted in CPCR and he was attending calls on channel no 119. He received call regarding unnatural sex with 3 year old and made entry to that effect and same is Ex. PW7/A.He forwarded the call to concerned zone.
13.PW8 Ct. Bablu deposed that on 22.12.2011 on the directions of MHC(M) he deposited the 3 sealed pullandas and 2 sample seals of FIR No 524/11 St Vs Hanuman Page 7 of 20 SGM Hospital in FSL Rohini vide RC No 171/21/11. He obtained the receipt from FSL and handed over the MHC(M). All the samples remain intact in his possession.
14. PW9 Dr Aditi Aggarwal, Senior Resident Gynae, SGM Hospital deposed that MLC Ex.PW2/C was prepared by Dr Suruchi and it bears her signature at point A. She identified the signatures of doctor as she had worked with her and currently, Dr. Suruchi is not working at SGM Hospital. She further deposed that 'X' was referred to Gynae department by Dr. Binay Kumar, SMO SGM Hospital for further medical examination. Observation of Dr Suruchi is written at Portion X3 to X4 on MLC Ex. PW2/C of victim, wherein it is opined that slight blood on vulva, hymen edges are congested and a small tear is present in the hymen posteriorly extended to the fouchette.
In her cross examination PW9 deposed that there was no external injury on the body except genital region. History of patient was narrated by her mother and there is no history of anal/oral sex. Hymen was not fully ruptured except poeterior tear.
15.PW10 2nd IO SI Ved Pal deposed that on 12.01.2013 investigation was entrusted to him and after completing the challan he filed it in the court.
FIR No 524/11 St Vs Hanuman Page 8 of 20
16.PW11 IO/SI Sukhi Ram was the IO of the case who exhibited the DD No 26A as Ex PW11/A, rukka as Ex. PW11/B and identified Ex. P1, Ex. P2 and Ex. P3. He also deposed about the proceedings conducted by him.
In his cross examination PW11 deposed that he did not make any enquiry from public persons, neighbours or shopkeeper from whom prosecutrix allegedly purchased toffee. He did not record statement of PCR personals, neighbours and shopkeeper. Complainant did not tell the name of shopkeeper. He denied all the suggestions given by the counsel of the accused.
17. PW12 Ms Poonam Sharma, Senior Scientist, FSL, Rohini exhibited the FSL report as Ex. PW12/A and Ex.PW12/B.
18.Thereafter, prosecution evidence was closed and matter was fixed for Statement of Accused on 01.03.2013.
19.The Separate Statement of Accused u/s 313 Cr.P.C. was recorded on 28.05.2013 and all incriminating evidence were put to him. Accused submitted that he has been falsely implicated and he want to lead defence evidence.
FIR No 524/11 St Vs Hanuman Page 9 of 20
20.DW1 Hanuman deposed that he alongwith his friend Raj kumar and nephew Mohit were present at his house F2/260, 3rd floor, Mangol Puri and were preparing chicken, when complainant came there and alleged that he has misbehaved with her daughter. She abused him and threatened him to implicate him in false case. After sometime she again came there with landlord and threatened him. Thereafter police came and arrested him.
In his cross examination by Ld APP for the State DW1 deposed that altercation took place between him and complainant 34 months back on the issue of water and cleaniness and complainant threatened him to vacate the house. The girl used to come to 3rd floor to play. He denied all the suggestions given by Ld APP.
21.DW2 Raj kumar deposed that he stays at F2/200, mangol Puri and on 11.12.2011 he alongwith accused and accused's nephew Mohit were present at accused's house and were preparing chicken, when complainant came there and alleged that accused has misbehaved with her daughter. She abused the accused and threatened accused to implicate the accused in false case. After sometime she again came there with landlord and threatened accused. Thereafter police came and arrested accused.
FIR No 524/11 St Vs Hanuman Page 10 of 20
In his cross examination by Ld APP for the State DW2 deposed that he used to go to the house of accused on holidays. He knows the complainant by face but dont know her name. On that day Hanuman asked the girl to bring match box and lemon from her house. He denied all the suggestions given by the the Ld APP.
22.Thereafter defence Evidence was closed on 20.07.2013 and matter was fixed for final arguments.
23. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
24.In order to prove the offence U/S 377 IPC against the accused, the prosecution was required to prove beyond reasonable doubt that accused had carnal intercourse against the order of nature with prosecutrix 'X' .
Now let us examine the prosecution evidence brought on record against the accused.
Before proceeding further let us go through the relevant provisions of FIR No 524/11 St Vs Hanuman Page 11 of 20 law.
Section 377 says : " Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
1. In the present case, Child victim Prosecutrix 'X' deposed in the court that Hanuman uncle did something to her and gave Rs 10 for toffee. She was called at the 3rd floor by the Hanuman uncle, who put his private part in her mouth. Hanuman uncle caused injuries at her urinal part by inserting his finger. Blood came out and there was blood on her kachi (panty). Testimony of PW1 is corroborated by PW2/Complainant i.e mother of prosecutrix, who deposed that her daughter on asking told her that uncle after putting spit on his finger forcefully removed her pajami and put his finger in her peshaab wali jagah. On her crying uncle gave her money for toffee. PW2 removed white pajami of her daughter and found that blood was coming from her peshaab wali jagah.
FIR No 524/11 St Vs Hanuman Page 12 of 20
Further, the testimony of PW2 is corroborated by the documentary evidence i.e. FIR Ex PW5/A which was registered on the basis of statement given by the complainant to the police i.e. PW2/A
2. Perusal of Ex. PW2/C i.e MLC of proseutrix 'X' from portion X3 to X4 shows that on local inspection (L/E) it was found that there was slight blood on vulva, hymen edges were congested and a small tear was present in the hymen posteriorly extended to the fouchette. Further, it is also mentioned that there were no external injury on the body except genital region and 12 samples were taken.
The alleged incident occurred on 11.02.11 at around 05.00 PM and the medicial examination of child victim was done at 10.00 PM i.e. after 5 hours of alleged incident, in which doctor found blood on vulva and a small tear in the hymen. Also, there was no external injury on body except on genital regions which proves that private parts of the child victim was violated.
Ex PW12/A i.e. FSL result shows that blood was detected on exhibits 1a1 i.e. baby pant and 1b, 1c and 1d i.e. Vulval swab I, II and III respectively. Thus, finding in MLC regarding presence of blood on valua is also corroborated by scientific evidence Ex PW12/A. Therefore it is well proved that blood was found on baby FIR No 524/11 St Vs Hanuman Page 13 of 20 pant (kachi) worn by victim and on her vulva.
Hence, the FIR, testimonies of prosecutrix PW1 and her mother i.e. PW2/complainant, MLC and FSL report sufficiently established that Prosecutrix 'X' received injuries on her vulva region due to penetration done with finger, hence, offence u/s 377 IPC is made out.
3. Now, we have to see whether the offence was committed by accused or not.
PW1, PW2 and PW11 identified the accused in the court. But the clinching evidence which connects the accused with the incident is the testimony of Prosecutrix 'X', wherein she not merely identified the accused in the court but she pointed her finger towards the accused and said " Yeh hai Hanuman uncle".
MLC No. 20972 of the accused is Ex. PW6/A. In Ex. PW6/A it is mentioned that on (L/E) local inspection, it was found that secondary sexual characters, penis and scrotum are well developed, both testis descended into the scrotum, no sign of venereal disease and there is nothing to suggest that patient is not capable of performing sexual intercourse. Therefore, from the MLCs of accused it is proved that accused was capable of performing sexual intercourse.
FIR No 524/11 St Vs Hanuman Page 14 of 20
4. All these evidences were put to the accused and he also had the opportunity to lead evidence. In order to disprove the case of the prosecution and in support of his defence, accused examined himself as DW1 and his friend Raj Kumar as DW2. Both DW1 And DW2 deposed that they were present alongwith accused's nephew Mohit at accused's place and were preparing chicken when complainant came there and had altercation with accused and lateron land lord and police came and arrested DW1.
Accused did not bring anything on record to prove that DW2 was present with him when police arrested him. Accused could have examined independent witness i.e. Landlord to prove that DW2 was present there when landlord and lateron police arrived. Moreover, the testimony of DW1 cannot be relied upon as he is an interested witness being friend of accused.
Thus, it is established on the record that accused was the person who committed offence u/s 377 IPC with prosecutrix 'X'.
5. The only discrepancy in the present case is the inconsistency in the statement of Prosecutrix 'X' regarding putting of private part in her mouth by accused and not telling the name of the accused and shop keeper to the police on the day of incident.
FIR No 524/11 St Vs Hanuman Page 15 of 20
6. The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same, (Ratansinh Dalsukhbai Nayak Vs. State of Gujrat 2004 (1) SCC 64) it should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare V. State of Maharashtra [ (1997) 5 SCC 341] where it was held that:
" A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
In the present case court before recording the testimony of FIR No 524/11 St Vs Hanuman Page 16 of 20 child witness has put several questions to her and observed that she is able to understand and give rational answers to the questions put to her. And after writing its observation court has recorded the testimony of child witness.
7. In Pancchi V. State of U.P. AIR 1998 SC 2726 it was held:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is 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 them and this a child witness is easy prey to tutoring."
The position seemed to be that it is necessary to see whether the testimony of a child has been corroborated in essential particulars, unless the circumstances render it safe to accept the testimony without corroboration.
8. In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Hon'ble Supreme Court held that in cases involving sexual offences, harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
" The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies FIR No 524/11 St Vs Hanuman Page 17 of 20 in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of prosecution must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with case involving sexual molestations."
9. Court has over the years attributed to the testimony of child witnesses the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the Victim/ Prosecutrix 'X' has been consistent on the material particulars of the incident. This inconsistency in the statement of Prosecutrix 'X' regarding putting private part in mouth and not telling the name of the accused and shopkeeper to the police on the day of incident can be attributed to the young and tender age of child witness whose merely 4 years old and also to the facts that it is possible that she is mortified or scared or simply not comprehending FIR No 524/11 St Vs Hanuman Page 18 of 20 the question that has been put to her.
10.Apart from above inconsistency, the testimony of the child victim/ Prosecutrix 'X', with relation to the incident is reassuring as she has been consistent throughout in describing what the accused did to her. Her description of the act is accurate and narrated with the understanding of a 4 year old child. It is not spoken of with the sophistication of an adult, and from this one can be assured that the child has not been coached. Furthermore, despite the cross examiner having put several suggestive questions to her she denied these suggestions and in fact on seeing the accused in the court she pointed her finger towards the accused and said " Yeh hai Hanuman uncle". The child witness also gave the name of the shopkeeper from whom she purchased toffee during her crossexamination. The fact is that the child witness could not be shaken during the cross examination.
Therefore, in opinion of court this inconsistency in Prosecutrix statement is not grave enough to discard the testimony of child victim/ witness in its entirety.
11. In these facts and circumstances, the prosecution has been able to prove its case beyond reasonable doubt. I therefore hold the accused Hanuman S/o Sh. Ram Adhar Singh guilty of offences punishable FIR No 524/11 St Vs Hanuman Page 19 of 20 under section 377 IPC and he is accordingly convicted for the same. Copy of this order be given dasti to the accused free of cost.
Announced in the open court ( VIPIN KHARB)
on 02.04.2014 MMI/NW/DELHI
FIR No 524/11 St Vs Hanuman Page 20 of 20