IN THE COURT OF SH. [ENTITY], M.M(NE) KARKARDOOMA COURTS, DELHI FIR No. : 322/99 U/s : 377/389 [ACT] P.S : Bhajanpura [ENTITY] Vs. [ENTITY] Unique Case ID No. 02402R0351182003 J U D G E M E N T
1. Sl. No. of the case : 97/13 (RBT) 2. Date of institution of the case : 14.11.2000 3. Name of complainant : [ENTITY] 4. Date of commission of offence : 16.08.1999
5. Name of accused, parentage & address : [ENTITY] s/o Sh.
Sh. Asfaq Ahmed Kazmi r/o B246/2, Gali No. 20, Subhash Mohalla, North Ghonda, Delhi.
6. Offence complained of or proved : 377/389 [ACT]
7. Plea of accused : Accused pleaded not guilty
8. Final order : Convicted
9. Date of which order was reserved : 13.05.2014
10.Date of pronouncement : 13.05.2014 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The case of the prosecution in brief is that on 16.08.1999 at about 8.00 pm at DDA land, opposite DTC Depot, Yamuna Vihar, Delhi, accused [ENTITY] had carnal intercourse, which is against FIR No. 322/99. 1 of 15 the order of nature, with the complainant [ENTITY]. He made a complaint in this regard in the Police Station on 17.08.1999 whereupon a case FIR No. 322/99, P.S Bhajanpura under [SECTION] [ACT] was lodged. The accused was accordingly arrested and charge sheeted for the offence under [SECTION] [ACT].
2. The charge sheet against the accused [ENTITY] was filed on 14.11.2000. After supplying of documents, Ld. Predecessor of this Court vide its order dated 27.10.2001 was pleased to frame a separate charge under [SECTION] [ACT] against the accused to which he pleaded not guilty in respect of the allegations and claimed trial.
3. To prove its case prosecution has examined as many as eight witnesses in all.
PW1 is ASI [ENTITY], the Duty Officer. PW1 has deposed that on 17.08.1999, she has received an information regarding the offence on which she recorded DD No. 7A Ex. PW1/A. She has further deposed that at about 12.10 pm, Ct. [ENTITY] brought one rukka upon which she has registered the present case FIR No. 322/99. She has proved the copy of FIR Ex. PW1/B and her endorsement on the rukka Ex. PW1/C. PW2 is [ENTITY], the complainant of the case. He is FIR No. 322/99. 2 of 15 material witness in this case so his testimony shall be discussed later on.
PW3 is Sh. [ENTITY], the father of the complainant. He is also material witness in this case and his testimony shall be discussed later on.
PW4 is HC [ENTITY]. He has deposed that on 17.08.1999, on receipt of DD No. 7, he along with SI [ENTITY] and Ct. [ENTITY] went to house no. 969, [ENTITY]. There complainant [ENTITY] met them and he got recorded his statement to the IO. On the basis of his statement, IO prepared the rukka and he took it to the P.S and case was got registered by him there. After getting registered the case, he came back at spot i.e DDA land opposite DTC depot, Yamuna Vihar. Father of the complainant was also present there. IO recorded his statement. Accused [ENTITY] was arrested by the IO at the instance of complainant [ENTITY]. He has proved the arrest memo Ex. PW4/A and personal search memo of accused Ex. PW4/B, his disclosure statement Ex. PW4/C. He has also proved the pointing out memo Ex. PW4/D. He further deposed that accused was got medically examined by him at GTB Hospital and complainant was also got medially examined by the FIR No. 322/99. 3 of 15 IO. The spare pajama of the accused was taken from the house of the accused and at the hospital the pajama which he was wearing had taken into police possession. Pajama was sealed by the doctor with the seal of GTB Hospital. He has deposed that one sample semen, one blood sample, and one seal sample of GTB Hospital have taken into possession by the IO vide seizure memo Ex. PW4E. One Sample of semen and seal sample of GTB belonging to the complainant had also taken into possession by the IO vide seizure memo Ex. PW4/F. One underwear and pant belonging to the [ENTITY]. were taken into police possession vide seizure memo Ex. PW4/G. The pant and underwear were sealed with the seal of SS and seal after use was handed over to him. IO recorded the statement of witnesses including him, father of the complainant and mother of the complainant and Ct. [ENTITY].
PW5 is [ENTITY], the mother of the complainant. She has deposed as under : " On 17.08.99 at about 10 am my son namely [ENTITY]. was weeping, I asked why he was weeping , on it he told he started weeping lutdly and later on he disclosed that [ENTITY] committed ' Carnal Intercourse" with him. He further disclosed the FIR No. 322/99. 4 of 15 [ENTITY] committed this act Chowki Wali Park in the ngiht i.e 16.8.199. I told this fact my husband, my husband made a call on 100 No. the statement of my son, my husband and myself were recorded by the police. Accused [ENTITY] is present in the Court today who is our neighbor. Police arrested the accused. Ld. Defence Counsel has cross examined this witness at length.
PW6 is Dr. [ENTITY]. He has deposed that on 17.08.1999, one boy namely [ENTITY]. aged about 14 years was brought to the hospital for his medical examination with alleged history of sodomy. He examined the boy and prepared his [CASE NUMBER], and thereafter referred the boy to Surgeon for further examination. He has proved the MLC as Ex. PW6/A. PW7 is Retired SI [ENTITY], the subsequent IO. He has deposed that on 18.01.2000, investigation of the present case was marked to him. On 12.03.2000, HC [ENTITY] told him that the exhibits of present case was deposited by him at FSL Calcutta vide [CASE NUMBER]. He recorded the statement of HC [ENTITY] and MHC (M)/HC Lokender. FSL result was awaited. Thereafter, he prepared the chargesheet in the present case and handed over the same to SHO, P.S Bhajanpura for filing the same before the Court. FIR No. 322/99. 5 of 15 PW8 is Dr. [ENTITY]. He deposed that on 17.08.1999, accused [ENTITY] was brought in GTB Hospital and he was medically examined by Dr. [ENTITY] and his MLC bearing no. A 3255/99 was prepared. He has proved the said MLC Ex. PW8/A and also identified the signature of Dr. [ENTITY] on the MLC of complainant Ex. PW1/A. After conclusion of the prosecution evidence, the statement of accused has been recorded u/[SECTION] [ACT] on 18.12.2012, in which accused pleaded his innocence, however, he did not lead any evidence in his defence.
4. I have heard the Ld. APP for the [ENTITY] and Ld. Defence Counsel and have gone through the material on record.
Ld. APP for the [ENTITY] has submitted that prosecution case has been proved beyond reasonable doubts whereas Ld. Defence Counsel has prayed for acquittal of the accused stating that there are several loopholes in the case of the prosecution.
Perusal of the record shows that there are two material witnesses in this case, one is complainant/victim namely [ENTITY] who has been examined as PW2, and another is the father of the complainant PW3 [ENTITY]. It has been deposed by PW2 FIR No. 322/99. 6 of 15 [ENTITY] that on 17.08.1999 when this incident took place, he was studying in 9th class in Buildingwala School. It has further been deposed that when he was coming back from his school after about about 6.00 pm, he found an obscene book lying on the way. He hid that book near wall in the park and he was seen doing so by the accused [ENTITY]. He further deposed that the accused [ENTITY] got that book from the place where he had kept it and he threatened him to show that book to his father. It has also been submitted by the PW2 that he became scared and started crying. He also requested him not to tell this thing to his father on which accused told him that he would not tell this thing to his father if he will become his friend. Because of fear, he agreed and after 34 days at the time of sunset, the accused took him into a park and started doing carnal intercourse. He was threatened by the accused that in case he disclosed the incident to anybody he will tell to his father about aforesaid book. The victim did not tell anything regarding the incident due to the fear. Next morning he disclosed regarding this incident to his mother. His father called the police at 100 number whereupon the police came to his house and recorded his statement Ex. PW2/A. He has also disclosed that he had washed his underwear. The witness FIR No. 322/99. 7 of 15 correctly identified the accused in the Court. This witness was cross examined at length by Ld. Defence Counsel.
PW3 Sh. [ENTITY] has deposed that the victim was his son and he was in 9th class when the incident in question took place i.e on 16.08.1999. He has further deposed that his wife told him that on 17.08.1999 accused [ENTITY] who is his neighbor had done a bad act i.e carnal intercourse with his son [ENTITY] ( the witness has correctly identified the accused in the Court). It has further been deposed that he asked his son about this act who told him that accused had seen an obscene book in his hand and he had threatened him to disclose this to them. He had taken him to a park and had done carnal intercourse with him. It has further been deposed that he informed the police at 100 number whereupon police came to his house and recorded his statement along with that of his son. Ld. Defence Counsel has crossexamined this witness at length.
It is to be seen that the final opinion on the MLC was given by Dr. [ENTITY] in the Court who was examined as CW1 on 10.09.2001. As per him, the local examination findings in the case are slight radishness and tenderness at the anal margin of the victim. Also, there is no brushing or abrasion or fisher, and the tone of the FIR No. 322/99. 8 of 15 anal sphimcter was also normal. There were no blood or any other stain in the preanal region. In the last, he has submitted that in view of the medical record no conclusive opinion can be given regarding sodomy of the victim. He has further deposed that however injuries as mentioned in the medical record may or may not be possible due to sodomy.
Ld. Defence Counsel has submitted that in view of the inconclusive medical opinion no offence under [SECTION] [ACT] is made out against the accused herein. It has further been argued that the FSL results are also inconclusive. Further, no traces of blood or semen has been detected either on the body or the clothes of the victim and the accused. It has further been submitted that had the accused committed the offence as alleged, some serious injuries were bound to be there on the body of the victim which is not the case herein.
Perusal of the testimony of Dr. [ENTITY] along with MLC of the victim bearing no. A3252/99 Ex. PW6/A shows that slight radishness and tenderness was seen in the anal margins of the victim and the nature of injury is stated to be simple. It is also to be seen that opinion given is that the injuries as mentioned in the medical record may or may not be possible due to sodomy meaning thereby FIR No. 322/99. 9 of 15 the medical opinion has not ruled out the sodomy altogether. The MLC of the accused [ENTITY] bearing no. A3255/99 Ex. PW8/A is also on record on which it has been opined by the doctors that there is nothing to suggest his inability to perform sexual intercourse. As far as nondetection of blood/semen traces on the body and clothes of the victim is concerned, the victim in his testimony dated 28.10.2003 has himself has deposed that he had washed his underwear which has white stains. Also, the incident allegedly occurred on the night of 16.08.1999 and the matter was reported to the police on 17.08.1999. There is every possibility that the victim must have used the toilet to attend the nature's call and the blood/semen stains, if any, might have been washed away. Regarding nontracing of blood/semen on the body of the accused, this Court is of the view that same holds true for the accused [ENTITY] in the sense that he also must have attended to the nature's call during the period starting from the time when the alleged offence was committed till he was arrested by the police. The possibility of the accused having taken bath also can't be ruled out. It is true that no traces of semen has been found by the CFSL on the pajama of the accused but it is to be seen that these clothes were allegedly handed over to the IO by the accused himself and it is FIR No. 322/99. 10 of 15 possible that he intentionally gave the wrong piece of clothe so as to screen himself from the punishment. More light on this aspect could have been thrown by first IO/SI [ENTITY] but he was not examined by the prosecution. It is also to be seen that accused is stated to be a neighbor of the complainant/victim and he was previously known to his family. The accused was named in the FIR as such and was also correctly identified by the victim [ENTITY] in the Court. Ld. Defence Counsel has failed to show as to what was the motive of the complainant/victim in falsely implicating the accused herein in this matter that too for such a shameful act having repercussions for both the complainant and the accused. The accused did not say anything regarding this matter in his statement under [SECTION] [ACT] also when he was given an opportunity. No previous enmity has been shown between the two families. The only motive shown by Ld. Defence Counsel is that the accused saw the victim along with adult book and the complainant [ENTITY] was fearful that this fact can be disclosed by the accused to his parents. This Court is of the view that in case the victim was so much afraid regarding knowledge of his parents about his possession of the adult book then he could have simply remained silent because by stating about the incident in FIR No. 322/99. 11 of 15 question, he himself admitted the fact regarding his possession of the adult book. Also, the complainant was merely of around 14 years of age and this Court sees no reason as to why he would falsely implicate the accused.
It has been argued by the Ld. Defence Counsel that as per the complainant, the incident in question took place at DDA land park but as per the prosecution the incident is stated to have taken in Shaheed Bhagat Singh Park. It has further been submitted that the site plan on record also shows this material contradiction.
The site plan in question has not been duly proved and so it cannot be taken into consideration by the Court. Even if for the sake of arguments, the site plan is taken into consideration then it shows that there is no contradiction as such. It is true that there are two parks shown in the site plan, one is Shaheed Bhagat Singh park which is adjacent to Gurudwara and another is DDA land park Yamuna Vihar which can be safely said in front of the Gurudwara as shown in the site plan. The spot has been shown as mark A in the site plan which is within DDA land park.
Ld. Defence Counsel has also argued that as per the complaint, the incident in question was told by him to his mother but FIR No. 322/99. 12 of 15 as per the father of the victim i.e PW3, the incident in question was told by his son. It is to be seen the PW3 [ENTITY] has explained in his testimony dated 28.10.2003 that he was first told by his wife regarding the incident in question, thereafter he asked his son about this. It is also to be seen that the examination of the PW3 [ENTITY] took place on 29.11.2013 i.e after around 10 years of his examination in chief, so this contradiction is minor in nature not affecting the case of the prosecution. Reliance is placed on the judgment of Hon'ble Supreme Court of India in [ENTITY] of Rajasthan v. Smt. Kalki and Anr. ( AIR 1981 SC 1390), wherein it was observed as under : " normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancy do not corrode the credibility of a party's case, material discrepancies do so "
It has also been argued by Ld. Defence Counsel that the incident in question allegedly took place in a park in which many public persons are bound to be there. But none of the public persons FIR No. 322/99. 13 of 15 has been made witness in this matter which could have corroborated the case of the prosecution. It is also strange that accused was able to perform such an act in a public park in the presence of public persons.
It is not clear from the material on record as to whether the public persons were present in the park at the time when incident in question took place or not. There is a statement of PW2 [ENTITY] in his crossexamination that " at that time, many people used to walk in the park". It is not clear as to regarding which incident the question was asked and the answer was given by the victim as the victim has deposed about the unnatural act being done to him at two times ( though the accused was charged for the offence under [SECTION] [ACT] for the second incident dated 16.08.1999). Regarding non corroboration of the case of the prosecution by nonjoining of the independent public persons, it is settled law that corroboration of the testimony of a victim of a unnatural offence is not required as a rule in case the other evidence on record is reliable and cogent. Reliance is placed on the judgment of the Hon'ble Supreme Court of India titled as [ENTITY] of Kerala vs. Kurissum Moottil Antony ( 2007) 1SCC 627.
5. Considering the above discussion, this Court is of the view that prosecution has successfully proved its case against the accused FIR No. 322/99. 14 of 15 [ENTITY] under [SECTION] [ACT] beyond reasonable doubt. Hence, accused [ENTITY] is held guilty and convicted for the offence under [SECTION] [ACT].
To come up for argument on the point of sentence on 20.05.2014.
Dictated & Announced in the open Court on 13.05.2014 ( [ENTITY] ) METROPOLITAN MAGISTRATE (NE) KKD COURTS, SHAHDARA, DELHI FIR No. 322/99. 15 of 15