Delhi District Court
Fir No. 360/2009 Ps Shalimar Bagh State vs . Ashu @ Lala Page 1 Of 20 on 8 September, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. 360/2009
P.S. Shalimar Bagh
Unique ID No. 02404ROO27842010
State
vs
Ashu @ Lala s/o Mahipal Singh
House no. 217 MCD flat
Jahangir Puri
Delhi
Date of institution of case: 05.02.2010
Date of reserving the judgment: 05.09.2014
Date of pronouncement of judgment: 08.09.2014
JUDGMENT
1. S. No. of the Case : 77/2/SB 2. Date of Commission of Offence : 07.12.2009 3. Date of institution of the case : 05.02.2010 4. Name of the complainant : Complainant H 5. Name of the accused, parentage & address: Ashu @ Lala 6. Offence complained or proved : 377/384/511 IPC 7. Plea of Accused : "Not Guilty" 8. Final Order : Convicted u/s 377/385 IPC 9.Date of Final Order : 08.09.2014 FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 1 of 20 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1.The case of prosecution as unfolded by report U/s 173 Cr.PC is that on 07.12.2009 at about 5 p.m. at Shishmahal Park, Shalimar Bagh, accused Ashu @ Lala committed carnal intercourse against the order of nature with complainant H (name of victim withheld. Name on judicial record) and that the accused attempted to commit extortion from the complainant H. The victim was medically examined at BJRM Hospital. The accused Ashu @ Lala was arrested and upon completion of investigation challan was prepared and filed in court for trial.
2.The copies of chargesheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3.Prima facie case having been made out, charge for offence U/s 377/384/511 IPC was framed against the accused on 01.04.10 to which accused pleaded not guilty and claimed trial.
4.In order to prove its case, prosecution has examined following witnesses:-
PW-1 HC Raghu Raj deposed that on 07.12.2009 he was posted as duty officer and has proved the FIR Ex. PW 1/A and endorsement on the rukka as Ex. PW 1/B. PW-2 Kamal Kumar is the father of the complainant/victim H. He deposed that on 08.12.2009 he went to the PS Shalimar Bagh and met SI Hira Lal who told FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 2 of 20 that there is some information about accused that he is in Azad Pur Mandi. They reached Azad Pur Mandi alongwith 2-3 police officials looking for accused. After some time his son H pointed out towards accused and said that he is the same person who had done wrong acts at Shish Mahal Park to him. On seeing them accused started running. One of the police official ran after the accused and caught hold of accused. Accused Ashu @ Lala was arrested vide arrest memo Ex. PW 2/A. PW-3 HC Surender Pal was the MHC (M) PS Shalimar Bagh. He deposed that 07.12.2009 three pullandas and one sample seal with respect to victim H were received by him through SI Hira Lal. On 08.12.2009 two pullandas and one sample seal with respect to accused were received by him. He made entry of both the said receipt in register no. 19 vide entry no. 3749 dated 07.12.2009 Ex. PW 3/A and 3750 dated 08.12.2009 Ex. PW 3/B. On 15.01.2010 vide RC No. 1/21/10 Ex. PW 3/C he sent five pullandas and two sample seal to FSL through Ct. Davinder.
PW-4 Narender was the photographer. He deposed that he run a studio by the name of Ritu Digital Photo Studio at Shalimar Bagh village, main road. On 25.01.2010 he was called by SI Hira Lal at Shish Mahal Park and he took three photographs of the spot with his digital camera. He further deposed that he handed over the photographs to the IO. The photographs are Ex. P-1 to P-3.
PW-5 Complainant H is the victim in the present case. He deposed that in FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 3 of 20 the year 2009, he was studying in class 6th in Kendriya Vidhyalya, Pitam Pura, Delhi. On 07.12.2009 at around 5 p.m. he was playing in a park near to his house in BH Block. Accused Ashu @ Lala called him and asked him to bring to his phone from a boy called Vicky, from a nearby house. Accused Ashu @ Lala had instructed him in a threatening voice to bring phone from that boy, called Vicky. He went at the stated place but found no one called Vicky. When he went back, Accused Ashu @ Lala said that Vicky must be present at Shish Mahal Park and that he must accompany accused to that park. Accused Ashu @ Lala had threatened him to accompany. Due to fear, he accompanied Accused Ashu @ Lala to Shish Mala Park. It was around 5.30 p.m. Accused Ashu @ Lala took him to an isolated corner of the park and started to physically misbehave with him. Accused Ashu @ Lala opened the zip of his pant and asked complainant H to suck his phallus (Urinating organ). Accused Ashu @ Lala forcibly thrusted his phallus in complainant's mouth. Thereafter, accused Ashu @ Lala forcibly removed his trouser and inserted his phallus in complainant's anus. PW-5 further stated that accused Ashu @ Lala gave the complainant his phone number and instructed the complainant to steal some money from his home to give to accused. Accused Ashu @ Lala had made the video clipping of the entire sexual mis-behaviour which accused had committed against him and threatened him that if he refused to give money to accused, accused will leak the video recording to the public. Then, he came back his house and told about the entire incident to his uncle (chacha) Sh. FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 4 of 20 Rajnish Kumar, who told about the incident to his mother. When his father came back home, he alongwith his father and uncle went to the police station and reported the matter. He was taken to the hospital by police in Jahangir Puri for medical examination. He had also shown the police the place of incident. The photographs were shown to the witness which were Ex. PW 5/B to Ex. PW 5/D, correctly identified by the witness. Accused Ashu @ Lala was arrested vide arrest memo Ex. PW 2/A. The witness has also correctly identified his underwear seized by the police as Ex. P-1.
PW-6 Dr. Gopal Krishana deposed that on 07.12.2009 Dr. Brijesh JR examined the victim boy H vide MLC No. 3907 and Dr. Vinayak SR Surgery further examined the victim. Both the doctors wrote the details of examination in the MLC itself. He recognized the handwriting and signatures of both the doctors as they have worked under his supervision. The MLC is Ex. PW 6/A. PW-7 Dr. Seema deposed that on 08.12.2009 Dr. Kundan JR examined the Ashu @ Lala vide MLC No. 1879 Ex. PW 7/A and Dr. Vikas SR Surgery further examined the Ashu. He further deposed that both the doctors worked under his supervision and both of them have left the services of BJRM Hospital.
PW-8 Ct. Devender deposed that on 15.01.2010 on the instructions of IO SI Hira Lal he collected five pullandas from MHC(M) alongwith RC NO. 1/21/10. The above said pullandas were deposited by him at FSL Rohini. He further FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 5 of 20 deposed that after depositing, he received the receipt and same was handed over to the MHC(M).
PW-9 Ct. Vijender Singh deposed that on 07.12.2009 on receiving D.D.no. 71-B he alongwith S.I. Hira Lal reached at house no. BH-574 at Shalimar Bagh where they met H and his father. H revealed that accused Ashu @ Lala did "GALAT KAAM" with him. After that they proceeded to BJRM hospital, Jhangir puri, alongwith victim where they got conducted medical examination of H. After that MLC was collected. Doctor handed over to IO three sealed pullandas alongwith the sample seal. IO seized the same Ex. PW-9/A. He further deposed that thereafter IO recorded the statement of victim at hospital and prepared the rukka and got the FIR registered through him. After registration of FIR, he reached at Shish Mahal Park, on the direction of the IO. One subsequent statement was recorded at the spot of victim, where IO was already present with the victim. After that they tried to track down accused Ashu @ Lala in Sahipur village, kela godown jhuggi and Shalimar village but of no avail. Later on IO recorded his statement.
PW-10 Ct. Krishan Gopal deposed that on 08.12.2009 IO took him for the investigation in present case at about 06:00 pm. As soon as they left the PS, they met Kamal Kumar and his son H. IO took them alongwith him and proceeded towards Azad Pur Mandi in search of accused Ashu @ Lala. IO had some secret information that accused was present at Azad Pur Mandi. They reached there and FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 6 of 20 after sometime, H pointed out towards the accused and stated that he had committed "GALAT KAAM" with him yesterday in Shish Mahal. Upon seeing them, accused tried to escape from the spot but accused was apprehended by him and IO. Upon interrogation, accused admitted about his involvement in the present case and thereafter he was arrested by the IO. His arrest and personal search memo are already Ex. PW 2/A and Ex. PW 10/A. IO also recorded the statement of Kamal Kumar and H on the spot and thereafter they were discharged from the investigation from the present case. IO also recorded disclosure statement of the accused. Accused Ashu @ Lala had produced one mobile phone before the IO which was seized by him vide seizure memo Ex. PW 10/B. The said mobile was kept in a pullanda made by IO duly sealed with the seal of HLY. During the personal search one mobile and one brown color purse was recovered from his possession. Thereafter PW10 alongwith IO and the accused went to BRJM hospital for the medical examination of the accused. IO collected sealed pullanda alongwith sample seal from the hospital vide seizure memo Ex. PW-10/D. Thereafter they all were went to Shish Mahal Park where accused pointed out towards the spot of incident. IO also prepared the pointing out memo in this regard same is Ex. PW
-10/C. Thereafter they came back to PS where accused was put behind the bars and the case property was deposited at the Maal Khana. IO recorded his statement. The witness has correctly identified the case property i.e. mobile phone as Ex. P-4.
PW-11 SI Hira Lal deposed that on 07.12.2009 on receipt of D.D no. 71-B FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 7 of 20 he alongwith Ct. Vijender reached at the spot from where call was received from house no. BH-574 Shalimar Bagh. There he met one H S/o Sh. Kamal Kumar aged about 12 years, who stated that some "GALAT KAAM" had happened with him. Thereafter he took the victim to BJRM Hospital for his medical examination. He collected the MLC of H which is already Ex. PW 6/A and 3 sealed pullandas which were seized by him vide memo already Ex. PW 9/A. Thereafter he recorded the statement of H and prepared the rukka Ex. PW 11/A. The same was handed over to Ct. Vijender who went to the PS for registration of the FIR. In the mean time he alongwith the complainant went to Shish Mahal Park where at the instance of the complainant he prepared site plan Ex. PW 11/B. In the mean time, Ct. Vijender also reached at the Shish Mahal Park and handed over original rukka and copy of FIR to him. He recorded the statement of H. He further deposed that thereafter they made efforts in the search of accused in nearby areas but he could not be found. Thereafter they returned to PS where the case property was deposited in the Maal khana. He recorded the statement of Ct. Vijender.PW 11 SI Hira Lal further deposed that on 08.12.2009 he took Ct. Krishan Gopal for the investigation in present case at about 06:00 pm. As soon as they left the PS, they met Kamal Kumar and his son H. He took them alongwith him and proceeded towards Azad Pur Mandi in search of accused. He had some secret information that accused was present at Azad Pur Mandi. They reached there and after sometime H pointed out towards the accused and stated that he had committed "GALAT KAAM" with FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 8 of 20 him yesterday in Shish Mahal. Upon seeing them, accused tried to escape from the spot but accused was apprehended by him and Ct. Krishan Gopal. Upon interrogation accused admitted his involvement in the present case and thereafter he was arrested vide arrest and personal search memos already Ex. PW 2/A and Ex. PW 10/A. He also recorded the statement of Kamal Kumar and H on the spot and thereafter they were discharged from the investigation from the present case. He also recorded disclosure statement of the accused. Accused Ashu @ Lala produced one mobile phone before him which was seized by him vide seizure memo Ex. PW 10/B. The said mobile was kept in a pullanda made by him duly seal with the seal of HLY. During the personal search one mobile and one brown color purse was recovered from the possession of the accused. Thereafter he alongwith accused and Ct. Krishan Gopal went to BRJM hospital for the medical examination of the accused. He collected sealed pullanda alongwith sample seal from the hospital vide seizure memo Ex. PW-10/D. Thereafter they all went to Shish Mahal Park where accused pointed out towards the spot of incident. He also prepared the pointing out memo in this regard same is Ex. PW-10/C. Thereafter they came back to PS where accused was put behind the bars and the case property was deposited at the Maal Khana. He recorded the statement of Ct. Krishan Gopal. He further deposed that on 15.01.2010 the said sealed pullands collected by him from the hospital were taken by Ct. Devender at his direction to be deposited in FSL, Rohini vide R.C no. 1/21/10. On 25.01.2010 he again took H to Shish Mahal FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 9 of 20 Park where the alleged incident had taken place. He called private photographer namely Narender at the spot and got the spot photographs from different angels. The photographs already Ex. P 1 to P3. He further deposed that he recorded the statement of H. Thereafter he alongwith Narender went to his shop at Shalimar village and got the above said photographs developed and collected the same. The photographs were taken from a digital camera and no negatives were there. He recorded the statement of Narender. After completion of investigation he filed the present challan before Hon'ble Court. The result from FSL Rohini was collected later and was filed before the court vide supplementary challan. The mobile is already- Ex. P 4.
5.Thereafter accused examined U/s 313 Cr.PC on 21.06.2014. Accused claimed innocence and false implication. He wished not to lead defence evidence.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by the ld. Legal aid counsel Sh. B. P. Singh.
7.In the present case, it is the case of the prosecution that the accused Ashu @Lala had committed carnal intercourse against order of the nature with complainant H and also attempted to commit extortion to him.
8.The section 377/384/511 IPC reads as follows:
377. Unnatural Offences.
FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 10 of 20
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.
384. Punishment for extortion.
Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.
Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
9.To substantiate its case, the prosecution was under the obligation to prove the following ingredients of the offence:
FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 11 of 20
-that the accused committed carnal intercourse with the complainant H;
-that the accused attempted to commit extortion with complainant H.
10.The section 377 IPC was declared unconstitutional in so far it criminalises consensual sexual acts of adults in private vide the judgment Naz Foundation vs Government Of NCT of Delhi, decided on 2 July, 2009 by the Hon'ble High Court of Delhi in WP(C) No.7455/2001. The said judgment has been set aside by the Hon'ble Supreme Court of India vide Judgment dated 11.12.2013.
11.Thus, the legal position that stands today is that the unnatural sex between two persons whether consensual or non-consensual shall attract the culpability under section 377 IPC. But in the present case the victim is minor, thus consensus is of no relevance in the present case. The ratio of Naz foundation case (supra) has no applicability in the present case. The alleged unnatural sex with the minor anyways falls with the four corner of offence of sodomy.
12. In the present case, the accused Ashu @ Lala is charged for the offence u/s 377 and 384/511 IPC on the allegations that he has committed carnal intercourse against the order of nature with the complainant H and that he has attempted to commit extortion from the complainant H.
13.To prove its case, the prosecution had examined 11 witnesses. PW-1 HC Raghuraj was the duty officer on 07.12.2009 who registered the FIR in the present FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 12 of 20 case. PW-2 Kamal Kumar is the father of complainant H and he is the witness of arrest of accused Ashu @ Lala on 08.12.2009. PW-3 HC Surender Pal was the MHC (M) who received the pullandas from SI Hiralal and deposited the same in the malkhana and made the entry in register no. 19 on 07.12.2009. He sent the pullandas to FSL through Ct. Devender on 15.01.2010. PW-4 Narender, photographer took the photographs of the spot at Shish Mahal Park which are Ex. P1, P2 and P3. PW-5 complainant H is the victim and the complainant in the present case. PW-6 Dr. Gopal Krishna, BJRM Hospital identified the handwriting and signatures of the doctors who examined the victim H vide MLC Ex. PW-6/A on 07.12.2009. PW-7 Dr. Seema BJRM Hospital identified the handwriting and signatures of Dr. Kundan and Dr. Vikas who examined the accused Ashu @ Lala vide MLC Ex. PW-7/A on 08.12.2009. PW-8 Ct. Devender Kumar collected the pullandas from MHC (M) and deposited the same at FSL Rohini on 15.01.2010. PW-9 Ct. Vijender Singh accompanied the IO SI Hiralal during the investigation of the present case on 07.12.2009. PW-10 Ct. Krishan Gopal also joined the investigation with IO on 08.12.2009. PW-11 SI Hiralal is the IO of the present case.
14.In the present case, the prosecution machinery came into motion vide DD No. 71B dated 07.12.2009 which records regarding the commission of obscene act with a boy of 12 years. The DD was marked to SI Hiralal who along with Ct. Vijender reached the BH-574 where the complainant H told him that some wrong act has FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 13 of 20 been committed with him. IO got the complainant H medically examined from BJRM Hospital, where the Doctor endorsed "alleged H/O sexual assault told by PT. itself. Rectal examination erosing injury lt. Over 6' o clock and 12' o clock position". Thereafter, IO recorded the statement of complainant H and prepared rukka and got the FIR registered through Ct. Vijender. Thereafter, IO along with complainant H went to Shish Mahal Park and prepared the site plan at the instance of complainant. IO deposited the sealed samples of victim H in the malkhana and searched for the accused but in vain. On 08.12.2009, IO along with Ct. Krishan Gopal, Kamal Kumar and complainant H went in search of the accused and reached Azad Pur Mandi where at the instance of the complainant H, the accused Ashu @ Lala was arrested in the present case. The accused was medically examined at BJRM Hospital and the sealed pullandas were deposited in the malkhana by the IO. On 15.01.2010, Ct. Devender deposited the sealed pullandas in FSL, Rohini. On 25.01.2010, IO along with complainant H went to Sish Mahal Park and at the instance of the complainant got the spot photographed through photographer Narender.
15.The main star witness cited by the prosecution is the victim himself who is also the complainant in the present case. PW-5 complainant H had deposed that in the year 2009, he was studying in class VI in Kendriya Vidalaya, Pitampura, Delhi and on 07.12.2009 at around 5 pm while he was playing in a park near his house, the accused Ashu @ Lala came to him and asked him to bring his phone from a boy FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 14 of 20 called Vicky, in a threatening voice. He went to the stated place but no one with the name Vicky was found. When he came back to the accused, accused asked him to accompany to the Shish Mahal Park. It was around 5:30 pm when the accused took him to the isolated corner of the Park and started to physically misbehave with him. Accused Ashu @ Lala opened the zip of his pant and asked complainant H to suck his phallus (Urinating organ). Accused Ashu @ Lala forcibly thrusted his phallus in complainant's mouth. Thereafter, accused Ashu @ Lala forcibly removed his trouser and inserted his phallus in complainant's anus. PW-5 further stated that accused Ashu @ Lala gave the complainant his phone number and instructed the complainant to steal some money from his home to give to accused. PW-5 further deposed that accused Ashu @ Lala had made the video clipping of the entire sexual mis-behaviour which accused had committed against him and threatened him that if he refused to give money to accused, accused will leak the video recording to the public.
16.PW-5 is the natural and the obvious witness of the incident. He is the best witness of the incident being the victim of the offence. The FIR has been registered on the written statement Ex. PW-5/A of the complainant H. PW-5 complainant H has very clearly narrated the whole of the episode. There is no inconsistency or contradiction in the testimony of PW-5. The testimony of PW-5 is duly corroborated by the contents of the FIR and the testimonies of other witnesses. The testimony of PW-5 is also corroborated by the medical evidence i.e. the MLC Ex. FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 15 of 20 PW-6/A. The MLC Ex. PW-6/A mentions that on the rectal examination, erosion injury over 6' o clock and 12' o clock was found and on digital examination the anal tone was found increased. The MLC clearly transpires that the sexual assault against the nature has been committed on complainant H. In addition, the MLC Ex. PW-7/A of accused Ashu @ Lala mentions that there is nothing suggestive that he is incapable of doing sexual intercourse and thus it assails the possibility that accused cannot commit the offence alleged in the present case. PW-5 has not been cross examined by the accused despite giving ample opportunity. Order-sheet dated 05.12.12 records that the accused stated that he has engaged private counsel who was not present on that day and accused further stated that he does not want the service of legal aid counsel. The next order-sheet dated 22.02.13 records as follows:
"It has been observed that despite several warning and opportunities, the accused has failed to engage a private counsel. The accused has even refused to accept the services of legal aid counsel. The accused does not want to ask any question to the witness in cross examination. The child witness cannot be made to suffer by repeated appearances in the court due to delaying tactics used by the accused. Hence, PW5 H is examined and discharged."
17.Thus, the testimony of PW5 has remained unimpeached during the trial of the case and there is nothing to dicredit the testimony or assail the creditworthiness of FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 16 of 20 the complainant.
18.Though in the present case, the sealed samples of victim as well as accused were sent to FSL for examination but nothing of benefit to the prosecution has come on record. It is reported that no conclusive opinion could be given on the exhibits as the sample had already putrefied. Though the FSL report is of no benefit to the prosecution but it is also not in benefit to the accused. No opinion could be given on the samples.
19.The victim PW-5 has clearly identified the accused Ashu @ Lala in the Court as the offender and has given clear narration of the facts as to how the offence has been committed. The testimony of PW-5 is found to be cogent, consistent and reliable. The FIR has been registered on the same day of the incident and there is no delay in the registration of FIR. The accused has been specifically name in the FIR and he has also been arrested at the instance of the complainant. The complainant was also medically examined on the same day of the incident and the medically examination support the version of the complainant. The complainant has identified the accused before the Court as the culprit. The mere fact that the complainant H was a minor is not a ground to discard his testimony. Section 118 of the Indian Evidence Act provides that all the persons shall be competent to testified unless they are not able to understand the questions or give rational answers to the questions. PW-5 is a competent witness and he has deposed in the Court without FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 17 of 20 any blemish or flaw. No embellishments or exaggerations were found in he testimony of PW-5. There is no reason as to why his testimony should not relied upon. There is no material contradiction which which could go to the roots of the case. The testimony of the witness PW-5 has remained unblemished. The witness is worthy of credit and his credit worthiness has not been impeached by the cross- examination by the defence. It is well settled law that every witness is competent if he is able to understand the questions put to him and is able to give rational answers to them notwithstanding the age of the witness. The only thing that is to be considered is that the minor witness is not tutored as they are easy prey to it. There is nothing on record to suggest tutoring and there is no circumstances which could transpire any iota of tutoring of witness. Further, in the present case there is no reason as to why the witnesses would falsely implicate the accused in the present case leaving the real culprit. No previous enmity or grudge has been brought on record which could suggest otherwise.
20.It is well settled law that it is not the quantity but it is the quality of the testimony that weighs upon the consideration of the Court. Section 134 of the Evidence Act stipulates that no particular number of witnesses shall in any case be required for the proof of any fact. In State of Maharashtra Vs. Suresh Nivsutti, 1997 2 Crimes 257 (Bom), it was observed that the time honoured rule of appreciating evidence is that it has to be weighed and not counted. Thus the Law which has developed over the time is that the testimony of a single witness is FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 18 of 20 sufficient to base the conviction of the accused, if it is found to be cogent, reliable and consistent. In the present case, the main witness is the victim himself who is the natural witness of the incident. The testimony of the victim is completely found reliable and sufficient for proving the commission of offence by the accused. There is nothing on record rule out the facts depose by the victim.
21.Lastly, the accused in the present case is also charged for the offence u/s 384/511 IPC for attempt to commit extortion to the complainant H. The offence of extortion would have been complete only when some money would have exchanged hands, but in the present case there is none. In the facts and circumstances of the present case, Section 385 IPC seems to have been attracted, which reads as below:
385. Putting person in fear of injury in order to commit extortion.
Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
22.The offence under Section 385 is committed even if the offence of extortion is not committed. Section 385 does not pre-suppose extortion or does not require the delivery of any property. Section 385 is immediately attracted when any person is put in fear of an injury in order to commit extortion. Thus, this court is the view FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 19 of 20 that Section 385 is more applicable than 384/511 IPC in the present case. When a specific offence is stipulated by the statute, there is no reason to advert to the offence of attempt u/s 511 IPC and it would be more appropriate and reasonable to stick to the specifically stipulated offence.
23.In the light of the above discussions and observations, this court is of the view that the prosecution has proved the case successfully against the accused beyond reasonable doubts. The accused could not escape his nemesis. The accused is hereby convicted for the offence u/sec. 377/385 IPC.
24.List the matter for hearing quantum of sentence.
Announced in open court ( Sushil Anuj Tyagi )
8th day of September, 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR no. 360/2009 PS Shalimar Bagh State vs. Ashu @ Lala Page 20 of 20