Delhi District Court
State vs . Munim Kumar on 16 April, 2010
FIR No. 34/09
U/S 363/377 IPC
PS: Shahbad Dairy
State Vs. Munim Kumar
IN THE COURT OF SH. DEEPAK WASON,
METROPOLITAN MAGISTRATE:ROHINI COURTS:DELHI
FIR No. 34/09
U/S 363/377 IPC
PS: Shahbad Dairy
State Vs. Munim Kumar
Date of Institution of case:30.04.09
Date of Judgment reserved:16.04.10
Date of which Judgment pronounced:16.04.10
JUDGMENT
Sl. No of case :23/2
Date of commission of offence :15.12.09
Name of the complainant :Sh. Arjun
Name and address of accused :Munim Kumar
S/o Sh. Jagdish
R/o Jhuggi no. 824, E-Block,
Shahbad Dairy, Delhi.
Offence complained of :363/377 IPC
Plea of accused :Pleaded not guilty
Date of order :16.04.10
Final order :Convicted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under: Accused Munim Kumar, S/o Sh. Jagdish has been sent up to face trial for the offence U/S 363/377 IPC for the reason that he on 15.02.09 in between 7:00 p.m to 8:30 p.m at Pg no. 1 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar Government land boundary, near Jhuggi E-Block, Shahbad Dairy, he kidnapped a minor namely Karan, S/o Sh. Arjun, aged about 6 years from his lawful guardianship and committed carnal intercourse with him and he thereby committed the offence punishable U/S 363/377 IPC and on the basis of which FIR no. 34/09 was registered at PS Shahbad Dairy.
2. After investigation, chargesheet was filed against the accused & after supplying the copies to him in compliance of Section 207 Cr.P.C, a charge was framed against the accused on 11.06.09, to which the accused pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined 12 witnesses. During trial, Ld. APP had moved an application U/S 311 Cr.P.C for adding Sh. Naresh Kumar, Sr. Scientific Assistant, as one of the witness & his application was allowed vide order dt. 25.01.10.
4. PW1 is Smt. Sumitra, mother of the victim and she is one of the material witness and she has corroborated the statement of PW3 Master Karan.
Pg no. 2 Contd/-..... FIR No. 34/09 U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar
5. PW2 is Sh. Arjun, the father of the victim, another material witness and he has almost deposed on the same lines of PW1 i.e Smt. Sumitra.
6. PW3 is Master Karan, the victim himself.
7. PW4 is Dr. N. Masand, Medical Officer, Casuality, Maharishi Balmiki Hospital, Delhi. He has deposed that on 16.02.09, he examined the victim Master Karan and proved the MLC Ex. PW4/A and gave samples to the IO. He has deposed that he further referred the patient to surgery. He was cross examined.
8. PW5 is Dr. Manoranjan Singh, Sr. Resident, Surgery, Maharishi Balmiki Hospital, Delhi. He has deposed that on 16.02.09, he examined the patient Karan, who was referred to him by Dr. N. Masand and proved the MLC Ex. PW5/A. He was also cross examined.
9. PW6 is Dr. S. K. Aggarwal, Casuality Medical Officer, Maharishi Balmiki Hospital, Delhi. He has deposed that on 03.03.09, he medically examined Munim Kumar and prepard the MLC Ex. PW6/A. He was also examined by accused.
Pg no. 3 Contd/-..... FIR No. 34/09 U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar
10. PW7 is Ct. Baljeet Singh. He has accompanied the IO SI Sanwar Mal in the proceedings of the present case. He was also cross examined.
11. PW8 is Sh. Naresh Kumar, Sr. Scientific Asstt. Biology, FSL, Rohini, Delhi. On 16.03.09, he received the parcels in the Office of FSL. He has deposed that all the parcels were sealed with the seal of casuality, Maharishi Balmiki Hospital, Pooth Khurd, Delhi and he examined the same and prepared the detailed report Ex. PW8/A. He was also cross examined.
12. PW9 is Ct. Anil Kumar. He has deposed that on 16.03.09, he was posted at PS Shahbad Dairy and on that day, on the instructions of the IO, he received 8 pullandas from MHC(M) and FSL form, sealed with the seal of MB Hospital and deposited the same to FSL, Rohini. He was also cross examined.
13. PW10 is HC Rajbir Singh. He is the concerned MHC(M) and proved register no. 19 as Ex. PW10/A & Ex. PW10/B. He was also cross examined.
14. PW11 is SI Sanwar Mal. He is the IO of the case. He has Pg no. 4 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar deposed that on 15.02.09, he was posted at PS Shahbad Dairy and on that day, he was on night emergency duty and on receiving DD no. 37 A, he went to the house of the complainant Sh. Arjun and his son Master Karan. He has further deposed that he recorded the statement of Sh. Arjun Ex. PW2/A and complainant told that accused Munim did wrong act with his son. He has further deposed that he alongwith Ct. Baljeet, complainant Arjun & his son Karan went to Maharishi Balmiki Hospital, where the victim Karan was medically examined by the Doctor. He has further deposed that he prepared rukka Ex. PW11/B and handed over the same to Ct. Baljeet. He has further deposed that the concerned Doctor handed over to him 5 pullandas, same were sealed with the seal of M.B.Hospital and he seized the same vide memo Ex. PW2/B. He has further deposed that he alongwith complainant and his son came at the spot and in the meantime, Ct. Baljeet also came at the spot with original rukka and copy of FIR and handed over the same to him. Thereafter, he prepared the site plan Ex. PW11/C at the instance of the complainant and recorded the statement of the wife of the complainant and his son and supplementary statement of the complainant and searched for accused persons but in vain. He has further deposed Pg no. 5 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar that on 03.03.09, he alongwith complainant Arjun joined the investigation and accused Munim was arrested from Jahangirpuri bus stand at the instance of the complainant vide memo Ex. PW2/C and conducted his personal search vide memo Ex. PW2/D and recorded the disclosure statement of accused Ex. PW11/D. He has further deposed that he came back to PS Shahbad Dairy, from where he joined one Ct. Rajbir to the investigation and went to Maharishi Balmiki Hospital, where accused was medically examined and concerned Doctor handed over to him 3 pullandas, duly sealed with the seal of M.B.Hospital and he seized the same vide seizure memo Ex. PW2/E. He has further deposed that they came back to PS with the said pullandas and accused was sent to PS Bawana. He has further deposed that on 04.03.09, accused was produced before the court and was sent to Judicial custody. He has further deposed that on 16.03.09, the above said pullandas were sent to the FSL through Ct. Anil vide RC no. 16/21/09. He has further deposed that on 04.04.09, he received the birth certificate of the victim Karan from his father, which is Ex. PW2/F & after completing the proceedings, challan was filed before the court.
Pg no. 6 Contd/-..... FIR No. 34/09 U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar
15. PW12 is HC Gyan Chand, the Duty Officer, who recorded FIR Ex. PW12/A. He is formal in nature. He was also cross examined.
16. After the completion of prosecution evidence, statement of accused U/S 313 Cr.P.C recorded, in which accused has submitted that he is innocent and has been falsely implicated in the present case and simultaneously stated that he did not want to lead defence evidence and accordingly, the matter was fixed for final arguments.
17. I have heard both the parties. Record Perused.
18. In the present case, accused has been charged U/S 363/377 IPC and to convict accused, prosecution has to prove all the ingredients of the above said Sections. The present case is based upon the testimony of child witness. Hon'ble Supreme Court in State of Karnataka Vs. 2009 (2) RCR, 475, Shantappa Madivalappa Galapuji has held that:
1. Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one.
2. A child of tender age can be allowed to testify, if he Pg no. 7 Contd/-.....FIR No. 34/09
U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar has intellectual capacity to understand questions & give rational answers thereto.
3. Though, it is an established principle that child witnesses are dangerous witnesses as they are pliable & liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence, the court comes to their conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witness. 1977 (3) RCR Criminal 227 SC Relied.
19. Now, coming to the to the present case, the testimony of PW3 is very important. The age of this witness is about 6 years and before his examination, some questions were put to him to ascertain as to whether he was able to give rational answers to the question and after asking certain questions, I was satisfied that witness was able to give rational answer to the question put to him and accordingly his statement was recorded without oath. He has specifically deposed that that he did not remember the exact date or time but one day, he was sitting with the mother of the Munim and accused Munim came there and took him from that place to one park, where he used to toilet. He further deposed that accused Munim put down his undergarments and accused also removed his pant and did wrong act with him and also Pg no. 8 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar threatened him not to tell this fact to anybody. He further deposed that accused threatened him that if he tells this fact to his mother then he will bring him again there. He further deposed that accused took a piece of stone and hit him at his hands and also threatened him not to tell this fact to anybody. He further deposed that accused Munim took him to a public tap and washed his clothes and thereafter left him in front of his house. He has deposed all the facts to his mother. He has further deposed that police officials asked questions from him and he narrated all the facts to them.
20. He was cross examined by Legal Aid Counsel and in his cross examination he deposed that he obeys his parents. He has also deposed that no doctor came to his house. He has further deposed that public tap is situated nearby a 'khadha'. He also deposed that he had visited the park with the police officials. He denied the suggestion that he deposed falsely before the police at the instance of his parents to settle scores with the accused. He denied the suggestion that that no such incident had happened with him. He also denied the suggestion that he is deposing falsely as being tutored by his parents. Defence counsel could not get anything from the mouth of witness in favour Pg no. 9 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar of accused.
21. Further, the testimony of PW1 Smt. Sumitra is also very material one. She has corroborated the version of PW3 Master Karan. She is the mother of the victim Karan and she has deposed that on 15.02.09, she was present in her house and the mother of accused Munim had burnt wood in front of her house and the mother of accused alongwith another lady and her husband and children were getting their hands warm & her son Karan also joined them. After some time, she came out of her house and started searching her son upon which mother of accused Munim told that her son had gone with her son and they would return after some time. She has further deposed that at 8:30, accused Munim left her son at the door of her home & her son was silent and did not speak anything. She has further deposed that after some time, her son became normal and started speaking a little. She has further deposed that the pant of her son was totally wet and she enquired from her son as how it became wet upon which her son told that the same had been washed by accused Munim and made him wear. She has further deposed that her son told her that accused Munim took her son to the park and opened his pant and put his penis in his Pg no. 10 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar anus. She has further deposed that her son had told him that when he started crying in the park accused Munim tried to make him afraid of devils upon which he started weeping bitterly and when her son told him that he will tell everything to his mother, the accused Munim threatened her son that he would again bring him there and would repeat the same act and when she opened the underwear of her son and checked it, she found the anus/annal part red and one hair inside his anus and she started crying upon which public persons and neighbourers were gathered & in the meantime, accused ran away. She has further deposed that at about 10:30 p.m, when her husband came, she narrated the whole incident to her husband and her husband called the Doctor & the Doctor told her husband that it is a police case and he cannot do anything. Her husband called the police, who came and interrogated his son and medically examined him. The undergarments of the son was handed over to the Doctors. She identified the case property correctly in the present case.
22. She was cross examined by Legal Aid Counsel and in her cross examination she has deposed that she is an illiterate. She further deposed that she did not discuss about the Pg no. 11 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar present case with her husband. She has further deposed that she knew the accused for about last two years and he was living with his parents and brother in a jhuggi. She admitted as correct that there were lot of jhuggies there. She further deposed that she never visited in the park alongwith the police officials however her husband and his child had visited there. However, she has deposed that she had gone in the evening time and the distance between the park is about 500 meters. She denied the suggestion that no such incident took place. She also denied the suggestion that she has falsely implicated the accused in the present matter in connivance with her husband to settle some previous scores with the accused. She denied the suggestion that she is deposing falsely. This witness also supported the case of prosecution.
23. Further, PW2 Sh. Arjun also supported the case of prosecution. He is the father of the victim and he has also corroborated the testimonies of other witnesses i.e PW1 Smt. Sumitra & PW3 Master Karan and he has deposed that on 15.02.09, he came to his home from his work at about 10:30 p.m. He has further deposed that his wife told that his neighbourer namely Munim took his son namely Karan Pg no. 12 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar from his house at about 7:00 p.m and returned back alongwith accused at about 8:30 p.m. He has further deposed that he saw his child, who was not feeling well upon which he called the Doctor from his neighbourhood and his wife told her that accused Munim took Karan to Park and did wrong act with him. He has further deposed that he called the police official at about 11:00 p.m upon which police came to his house and took his son Karan to Maharishi Balmiki Hospital, Pooth Khurd, where his son was medically examined by the Doctors. He has further deposed that thereafter police officials recorded his statement, Ex. PW2/A. He has further deposed that Doctor handed over the blood samples and clothes of his son to police officials, same are Ex. PW2/B and prepared site plan at his instance and recorded his statement. He has further deposed that after 18 days of the incident, accused Munim was arrested vide memo Ex. PW2/C from Jahangirpuri but he did not remember the exact date and personal search of accused was conducted vide memo Ex. PW2/D. He has further deposed that he gave the birth certificate of his son Karan to police, same is Ex. PW2/F. Ld. APP for the state sought permission to put leading question from this witness, which request was allowed and he asked the witness some leading Pg no. 13 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar question.
24. He was also cross examined and in his cross examination he deposed that he could not tell the name of the Doctor, who examined his son but after seeing his son Doctor advised him to take some legal action. He further deposed that he called at 100 number upon which police came to his house. He denied the suggestion that no such incident has taken place as stated by him in his examination-in-chief. He also denied the suggestion that he falsely implicated the accused in the present matter in connivance with his wife to settle some previous scores with the accused. He has deposed that he is an illiterate persons but can only write his name. He admitted as correct that the memos prepared by the police officials were not explained to him. He denied the suggestion that he is deposing falsely.
25. Further, PW6 Dr. S.K.Aggarwal, CMO has also opinied that there is nothing to suggest that accused examined was not capable of performing sexual intercourse. Further Ex. PW4/A shows that linear abrasion on the anus of victim Karan positively with oozing of blood.
Pg no. 14 Contd/-..... FIR No. 34/09 U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar
26. All these witnesses have fully supported the prosecution case and their testimonies are substantially correct and there is no reason to disbelieve the same. All the witnesses examined by the prosecution have supported the case of prosecution and their statement on record found to be cogent, coherent and are corroborating each other on all the material aspects. Further, why the complainant as well as child would falsely implicate the accused. No defence has been put forth by the accused & only one bald suggestion was given that accused has been falsely implicated in the present case just to settle some previous scores.
27. Hence, in view of the discussion made above & after scanning the entire record, I have no hesitation to hold that the prosecution has successfully proved the case against the accused beyond all reasonable doubts for the offence U/S 363/377 IPC. Accordingly, accused Munim Kumar is convicted for the offence punishable U/S 363/377 IPC. Order on sentence shall be passed after hearing the accused.
(DEEPAK WASON) Metropolitan Magistrate Rohini Court,Delhi ANNOUNCED IN THE OPEN COURT TODAY i.e on 16th April, 2010 Pg no. 15 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar FIR no. 34/09 PS Shahbad Dairy U/s. 363/377 IPc State Vs. Munim Kumar ORDER ON SENTENCE 27.04.10 Pr: Ld. APP for the state.
Convict produced from J/C. It was argued by the counsel for convict that convict is a very poor person and is of young age. It was further submitted by him that this is the first offence against the convict and he has no other case pending against him and hence, it was prayed that a lenient view be taken against him.
On the other hand, Ld. APP had strongly opposed the plea taken by the convict and requested to take strict view.
I have heard the arguments of Ld. Defence counsel, Ld. APP for the state as well as carefully gone through the record.
Keeping in view the gravity of the offence, I am not inclined to take any lenient view. Hence, I hereby sentenced the convict for the offence punishable under Section 363 IPC, to undergo rigorous imprisonment for a period of three years with fine of Rs. 500 and in default of payment of fine, simple Pg no. 16 Contd/-.....
FIR No. 34/09U/S 363/377 IPC PS: Shahbad Dairy State Vs. Munim Kumar imprisonment of 1 month and for the offence punishable under Section 377 IPC, to undergo rigorous imprisonment for 3 years with fine of Rs. 500 and in default of payment of fine, simple imprisonment of 1 month. All the sentences shall run concurrently. The convict is given the benefit of Section 428 Cr.P.C.
Fine not paid.
File be consigned to Record Room.
Deepak Wason
MM (Outer)/Rohini/Delhi
27.04.10
Pg no. 17 Contd/-.....
FIR No. 34/09
U/S 363/377 IPC
PS: Shahbad Dairy
State Vs. Munim Kumar
FIR no. 34/09
PS Shahbad Dairy
U/s. 363/377 IPC
State Vs. Munim Kumar
27.04.10
Pr: Ld. APP for the state.
Convict produced from J/C.
Vide separate order, the convict is sentenced for the offence punishable under Section 363 IPC, to undergo rigorous imprisonment for a period of three years with fine of Rs. 500 and in default of payment of fine, simple imprisonment of 1 month and for the offence punishable under Section 377 IPC, to undergo rigorous imprisonment for 3 years with fine of Rs. 500 and in default of payment of fine, simple imprisonment of 1 month. All the sentences shall run concurrently. The convict is given the benefit of Section 428 Cr.P.C.
Fine not paid.
Copy of judgment as well as order on sentence be given to convict, free of cost.
File be consigned to Record Room.
(Deepak Wason)
MM (Outer)/Rohini/Delhi
27.04.10
Pg no. 18 Contd/-.....