Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 87 (UTT)

Naeem Ahmad v. State of Uttaranchal

2013-03-01

SUDHANSHU DHULIA

body2013
Judgment : 1. This Criminal Appeal arises out of the judgment and order of the trial court dated 1.8.2001 passed by the learned Sessions Judge, Dehradun in Sessions Trial No. 100 of 1998 convicting the present appellant under Section 377 IPC and thereby sentencing him for 4 years of rigorous imprisonment. The accused appellant stood acquitted under Section 376 IPC read with Section 511 IPC, the other charges on which he had faced the trial. 2. Since in this case the appellant was not being represented by any counsel at the time of final hearing, the Court appointed Mr. R.C. Tamta a practising lawyer of this Court as Amicus Curiae in the matter, to present the case of the appellant before this Court. He was given the paper book of the case, free of cost and time to prepare the matter. It is listed today now for final hearing. 3. The State is being represented by Ms. Mamta Bisht, Assistant Government Advocate. 4. Matter heard at length. 5. The facts of the case are like this. The incident from which the present case arises before this Court happened in the hill station of Mussoorie, Dehradun. On 19.4.1998, the complainant took his nine years old daughter to the neighbourhood barber’s shop, belonging to the accused Naeem Ahmad, to have a hair cut of his daughter. The time was 4:30 P.M. At that time there were four to five people already sitting in queue in the shop, waiting for their turn and since the accused asked the complainant to leave his daughter at his shop, assuring that he will do the needful, his father asked the girl to sit in the shop and wait for her turn. So he left his daughter at the shop of the accused and returned to his shop which was also in the neighbourhood. At about 5:00 PM, he was informed by one Ram Kumar who had a hotel in the area that something wrong has happened to his girl. So he left his daughter at the shop of the accused and returned to his shop which was also in the neighbourhood. At about 5:00 PM, he was informed by one Ram Kumar who had a hotel in the area that something wrong has happened to his girl. He immediately went to the barber’s shop where he found that a large number of people had gathered outside the barber’s shop and when he enquired from her girl who was also standing outside the shops (the name of girl is not being given here and she will simply be mentioned as the prosecutrix), the prosecutrix who was continuously sobbing informed him that the accused had placed his genital organ on her private part initially but thereafter he placed his genital organ in her mouth. She consequently started crying as a result of which a number of people gathered outside the shop. The prosecutrix was also threatened by the accused that if she said about this to anybody then she would be killed. The father of the prosecutrix on getting this information promptly lodged a First Information Report at the police station Mussoorie. The FIR was lodged on 19.4.1998 at about 5:00 PM. Apart from narrating the incident as has already been referred above, the complainant also states that at that time number of people had gathered outside the shop of the accused, to name a few Radheshyam Tayal, Shravan Kumar, Tribhuvan Singh, Devendra Jain, Lala Kapoor Chand, etc. who had seen the incident. The F.I.R. was registered under Section 376 IPC read with Section 511 IPC as well as Section 377 IPC. After the investigation, the police has filed the chargesheet and the matter was committed to the Sessions for trial vide order dated 5.8.1998. The accused was charged under Section 376 IPC read with Section 511 IPC as well as under Section 377 IPC. 6. The prosecution in order to support its case produced as many as 6 witnesses i.e. the prosecutrix herself as PWI, Ashok Kumar P.W.2 who is father of the prosecutrix, Tribhuwan Kumar P.W. 3 and Shravan Kumar P.W. 4 who are eyewitnesses to the incident, P.W. 5 constable Jasveer Singh and P.W.6 Sub-Inspector Laik Singh who conducted the investigation. 7. 6. The prosecution in order to support its case produced as many as 6 witnesses i.e. the prosecutrix herself as PWI, Ashok Kumar P.W.2 who is father of the prosecutrix, Tribhuwan Kumar P.W. 3 and Shravan Kumar P.W. 4 who are eyewitnesses to the incident, P.W. 5 constable Jasveer Singh and P.W.6 Sub-Inspector Laik Singh who conducted the investigation. 7. After the said incident though the prosecutrix was not put to any medical examination, as her father i.e. P.W.2 refused to grant such permission to the police for conducting medical examination on a nine year old girl. In absence of the medical report therefore the case of the prosecution rests on the testimony of the prosecutrix herself along with the testimony of two eyewitnesses i.e. Tribhuwan Kumar and Shravan Kumar i.e. P.W. 3 and P.W. 4 respectively, and the testimony of her father P.W.2. 8. The prosecutrix who is a nine year old girl was examined in court on 29.10.1998. She states that she is a student of class 4 in a convent school at Mussoorie. She recognised the accused in the court by pointing her finger at him, stating that on 19.4.1998 which was a Sunday her father took her for a hair cut at the barber’s shop of the accused, which is near “Sweety” Uncle’s shop, near Gandhi Chowk. At that time it was 4:30 P.M. or near about. Her father asked her to sit in the shop and thereafter after giving directions to the barber i.e. the accused, her father returned to his shop reminding the prosecutirx that after having her hair cut she should return home. Her turn was to come after 4 or 5 people, who were already waiting for their turn at the shop. However, after she came to the shop, some more people had came to the shop but the barber informed them that he would not be cutting any more hair as he has to go to the hospital. Having finished with his customers he closed the door of the shop he then lifted her and first he placed her on the main chair but thereafter he lifted her again and placed her on the bench which was lying in the shop. After the accused placed her on the bench he took off her underwear and stood on top of her and asked her to close her eyes and open her mouth. After the accused placed her on the bench he took off her underwear and stood on top of her and asked her to close her eyes and open her mouth. Thereafter the accused (who she points out to be present in court) placed his genital organ in her mouth. On this she cried and after hearing her cry, Sweety uncle, Ram Kumar uncle, her “Tau Ji” (uncle), Shravan uncle and other persons came inside the shop. Her father too come with her uncle Yashwant. Thereafter, she narrated the entire incident to her uncle. She further states that the accused told her not to tell about this incident to anyone. 9. She was cross-examined by the defence subsequently. She submitted that the place where the shop is situated is generally crowded and prior to her turn there were 2 to 3 persons the barber had to attend. She cannot state exactly how much time it would have taken to cut hair of such persons. She further states that there are four chairs and one bench in the shop and that it is wrong to state that there were only 2 chairs meant for the hair cut, etc. She further states that the door of the shop has white glass. In short, the prosecutrix was put to heavy cross-examination by the defence but there is nothing which has come out in the cross-examination which may raise any kind of doubt on the truthfulness of her testimony. Her testimony clearly inspires confidence. 10. PW 2 is Ashok Kumar who is the father of the accused. He was examined on 16.11.1999. He said that he has a readymade garment shop near the Library Chowk, Mussoorie. He knows the accused personally who has a barber’s shop at Gandhi Chowk, Mussoorie. That he took his daughter on the barber shop of the accused where 4 to 5 persons were sitting and he was asked by the accused to leave his daughter at the shop and needful will be done when her turn comes. Thereafter he left his daughter at the shop of the accused. At about 5:00 P.M. i.e. after half an hour, one Ram Kumar who has a hotel at Library Chowk informed him that something wrong has happened to his daughter. Thereafter he left his daughter at the shop of the accused. At about 5:00 P.M. i.e. after half an hour, one Ram Kumar who has a hotel at Library Chowk informed him that something wrong has happened to his daughter. He ran towards the barber’s shop and found that already a number of people had gathered outside the shop of the accused and his child who was also there looked very worried. She was also without her under garments and she thereafter narrated the incident to the accused, more or less the same as she has given in her testimony before the court. P.W. 2 states that public was also present on the spot and some of them had seen the incident. The statement which he gives to the court was that the accused first tried to rape his daughter and when he did not succeed in his attempt, he committed sodomy on his daughter. However, the fact remains that he is not an eyewitness to the incident, and this part of the evidence is only a hearsay, but nevertheless he corroborates the story of the prosecution by stating the circumstances under which it had happened and there is absolutely no doubt here as well to disbelieve his statement, subject to what has been referred above. 11. P.W. 3 and P.W. 4 are eyewitnesses to the incident. P.W. 3 is one Tribhuwan Kumar who was cross-examined on 16.11.1999. In his testimony he said that he has a general merchant shop at Gandhi Chowk, Mussoorie, which is next to the shop of the accused where this incident had actually taken place. He also knows Ashok Kumar, the father of the prosecutrix who has a shop at Gandhi Chowk in Mussoorie and he knows the prosecutrix as well. In his examination in chief he further states that on 19.4.1998 at about 5 P.M. he heard someone cry from the shop of the accused. He immediately went to the shop of the accused, which has glass on its door, which was closed. Through the transparent door he could see what was happening inside. What he saw was that the under garments of the prosecutrix had been taken off and the accused was trying to insert his genitals in the mouth of the prosecutrix and the prosecutrix was crying. At that time a number of people had also gathered outside the shop. Through the transparent door he could see what was happening inside. What he saw was that the under garments of the prosecutrix had been taken off and the accused was trying to insert his genitals in the mouth of the prosecutrix and the prosecutrix was crying. At that time a number of people had also gathered outside the shop. He names some of the persons such as Radheshyam Tayal, Ram Kumar, Devendra Jain, etc. He recognised the accused in the court and said that the accused threatened the prosecutrix not to tell this incident to anybody. 12. In his cross-examination, there is some contradiction as to the statement of this particular witness as at one point he says that the genital organ of the accused was coming out of trousers and at another point he states that he was wearing his trousers. He could also not tell as to what colour of trousers the accused was wearing, etc. However, these minor contradictions do not go to the root of the matter. 13. Another witness is Shravan Kumar P.W. 4 who is aged 53 years. He was examined on 17.8.2000. He is also a dealer in cloth at Gandhi Chowk, Dehradun. He in his examination in chief says that on 19.4.1998 in the evening when he was in his shop, he heard the cry of a girl, which was coming from a nearby shop and when he reached there he saw that the door of the shop was closed but he could see from the glass of the shop that the girl had no under garments and first the accused tried to insert his genitals on the private part of the victim but when he could not succeed he placed it on her mouth. Since a number of people had gathered, they forcibly opened the door of the shop. Meanwhile the father of the girl had also reached the spot. The girl was terribly shattered, according to this witness. P.W.4 was also put to heavy cross-examination but nothing has come out in his cross-examination which may place any doubt on the story of the prosecution. 14. PW6 Laik Singh is the investigation officer who investigated the matter. As regards medical examination not conducted the explanation he gives is that the girl was not sent to medical examination as his father specifically refused to grant permission. 15. 14. PW6 Laik Singh is the investigation officer who investigated the matter. As regards medical examination not conducted the explanation he gives is that the girl was not sent to medical examination as his father specifically refused to grant permission. 15. In his statement under Section 313 CrPC, the accused denied all the allegations against him as well as the evidence and said that the prosecutrix at that relevant time was standing on the chair and when he tried to make her sit on the chair so that he could cut her hair, it may be possible that his hand touched her undergarment on which the girl started shouting, as a result of which a number of people gathered outside the shop. 16. As far as the girl coming to the shop of the accused for a hair cut on 19.4.1998 at 4:30 P.M. is concerned, this fact is not in doubt. The counsel for the appellant the Amicus Curiae Mr. R. C. Tamta, however, denied the charges of the prosecution on two grounds. First is that admittedly the area where the shop of the accused is situated is a crowded area and therefore the accused committing such an act in a shop near a crowded area is not possible. Second defence taken by the accused is that it is a small shop about 10/ 8 feet in dimension. The shop has doors which had glass. Therefore in such a situation it is not possible that the accused will commit such an act. The minor discrepancies on the statement of P.W. 3 and P.W. 4 and the discrepancies in the statement of the prosecutrix and her father have been highlighted by the appellant. 17. There is another defence taken by the appellant that the girl was not put for medical examination which was absolutely vital and in its absence there could be no conviction. 18. Now it is a settled principle of law that in a case of Section 376 IPC or a case of 377 IPC when the victim is a nine year old girl the conviction can be made on the sole testimony of the prosecutrix. In the present case, the prosecutrix has given a clear statement before the court as to what happened on that fateful day. There is absolutely no reason for this Court to disbelieve such a statement. In the present case, the prosecutrix has given a clear statement before the court as to what happened on that fateful day. There is absolutely no reason for this Court to disbelieve such a statement. Furthermore this incident is corroborated with the eyewitness account of P.W.3 and P.W. 4. Infact even in the absence of there being any eye-witness to the incident the sole testimony of the prosecutrix, corroborated by the testimony of her father PW2 was sufficient for the conviction. Therefore, even if one removes the minor discrepancies in the statement of the witnesses, the overwhelming evidence coupled with the statement given by the father of the prosecutrix as to under what circumstances he had left the girl in the shop and what has happened subsequently it leaves not even an iota of doubt that as far as the commission of offence punishable under Section 377 IPC is concerned, the prosecution has well established the charges. 19. Regarding there being no medical examination, under the circumstances of the case one can only sympathise with the father of the prosecutrix, the trauma and the torture which he and his daughter underwent and therefore in his wisdom his refusal to get his girl medically examined is understandable. This, however, may have diluted the case of the prosecution under Section 376 IPC read with Section 511 IPC but it has absolutely no effect as far as charges under Section 377 IPC are concerned, as they stand fully corroborated even in the absence of a medical report. For the reasons that there was no medical examination on the prosecutrix, the accused has already been acquitted under Section 376 IPC read with Section 511 IPC. For establishment of a charge under Section 377 IPC, under the present circumstances of the case a medical examination has little relevance. 20. Now, to the most vital aspect of the matter as to whether the accused by placing his genital organ in the mouth of the prosecutrix has actually committed sodomy, punishable under Section 377 IPC! 21. It is true that sodomy has not been defined in the Indian Penal Code but Section 377 IPC itself has a very wide definition i.e. whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal is said to have committed a crime under Section 377 IPC. 21. It is true that sodomy has not been defined in the Indian Penal Code but Section 377 IPC itself has a very wide definition i.e. whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal is said to have committed a crime under Section 377 IPC. The orifice of mouth has not been made by nature for sexual or carnal intercourse. 22. The criminal act of which the present accused was charged and now stands convicted by the trial court is an act not unknown to mankind. Even in cases of willing partners or adult consensual partners such an intercourse is a deviate sexual intercourse, also known as “coitus per os”. The biblical scriptures would describe it as the “sin of Gomorrah” or the “sin of Sodom”. Legally speaking such an act is sodomy. In the present case, a nine year old girl has been subjected to such an act by the accused against her wishes and inspite of her resistance. Though “sodomy” is not specifically defined but as referred above the definition of Section 377 IPC is quite wide to encompass the act of sodomy. What is relevant is that the carnal intercourse should be “against the order of nature”. It has repeatedly been held by our courts that the orifice of mouth is not meant to have a carnal intercourse. This has been held as far back as 1925 by the Sind High Court in Khanu v. Emperor AIR 1925 Sind 286, followed subsequently by various High Courts and particularly by the Orissa High Court in Calvin Francis v. State of Orissa 74(1992) CLT 585, the two judgments on which this Court relies upon presently. Consequently the submission on behalf of the appellant that the appellant could not have been convicted under Section 377 IPC is negated. 23. Heard learned counsel for the appellant on the quantum of sentence as well. Counsel for the appellant has pleaded that the accused was about 19 years of age at the time of commission of crime and that a lenient view to be taken regarding the sentence of the accused. 24. Considered the plea of the counsel on the quantum of sentence as well. Counsel for the appellant has pleaded that the accused was about 19 years of age at the time of commission of crime and that a lenient view to be taken regarding the sentence of the accused. 24. Considered the plea of the counsel on the quantum of sentence as well. Considering the fact that the accused has committed a dastardly, inhuman act on a nine year old girl and considering the trauma and agony which this girl must have undergone, this Court is not inclined to reduce the sentence of the accused appellant. Also in the present case there are no special circumstances which may justify the reduction of the sentence, which is 4 years of rigorous imprisonment. No interference is therefore called for. Appeal is dismissed. 25. The accused is on bail. His bail is cancelled. He shall be taken into custody forthwith to undergo the sentence. 26. Let a copy of this judgment be sent to the trial court to make appellant serve out the sentence as awarded by the court below. Lower Court record be sent back.