Delhi District Court
State vs . Ajay Kumar on 15 March, 2018
IN THE COURT OF MS. CHARU GUPTA : MM, MAHILA COURT-
01, SED/SAKET COURTS, NEW DELHI
State Vs. Ajay Kumar
FIR No.:115/13
P.S.: K.M Pur
U/Sec.: 354A(1)/509 IPC
JUDGMENT :-
Srl. No. of the case & Date of 88812/2016 & 16.04.2015 institution Date of commission of offence 07.05.2013 Name of the accused Ajay Kumar S/o Sh.Ram Prasad R/o Village Halbal Bita, PS Mankapur, District Ghonda, UP.
Nature of offence complained U/s 354A (1)/509 IPC of Plea of the accused person Accused persons pleaded not guilty Date of reserving order 08.03.2018 Final Order Convicted Date of order 15.03.2018 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:-
1. In the present case, accused person is facing trial for offence punishable under Section 354A(1)/509 IPC on the allegations of having shown pornography to the complainant against her will and also having exhibited obscene gestures to the complainant intended FIR No.115/2013 State Vs. Ajay Kumar Page No. 1 to insult her modesty.
2. On 07.05.2013 complainant filed a complaint to the police stating that she was residing at B-41, south-Extension Part-1 alongwith her friends namely Samridi Singh, Sristi Kumari and Chandni Gupta. She alleged to have been mentally harassed by an unknown man (later known to be the accused) who used to undress himself in front of her building and make dirty gestures (masturbation). On 07.05.2013 at 12:30 midnight complainant noticed the accused in half dress condition and handed him over to the police.
3. Police investigated the case and upon completion of investigation, charge sheet was filed on 16.04.2015 on which date, cognizance was also taken. Copy of charge sheet was supplied to accused on 20.06.2015 and charges for offences punishable U/s 354A/509 IPC were framed upon accused Ajay Kumar on 12.08.2015 to which he pleaded not guilty and claimed trial.
4. To prove its case, prosecution has examined 3 public witnesses and one official witness.
5. Complainant Ms. Shifa Khan was examined as PW-1 who deposed that at the time of incident she resided at B-41, South-
Extension, Part-1, New Dehi. Accused, who was correctly identified by her before the Court, used to harass her and her room mates namely Sristi Kumari, Samridhi and Chandni Gupta by undressing himself, opening his pant in front of them and making dirty gestures (masturbation) since past many weeks from the date of complaint.
FIR No.115/2013 State Vs. Ajay Kumar Page No. 2She deposed that the accused used to stand under a tree in front of their room and used to do the said act daily. Frustrated from the act of the accused, she alongwith her abovementioned friends caught hold of the accused and called the police at 100 number and handed over the accused to the police at 12:30 midnight on 07.05.2013. Police arrived and she handed over written complaint Ex.PW1/A to the police. She also proved preparation of the site plan Ex.PW2/B at her instance and arrest memo and personal search memo of the accused as Ex.PW1/C and Ex.PW1/D. She proved her statement recorded U/s 164 Cr.PC as Ex.PW1/E. PW-1 was duly cross examined by the defence counsel.
6. PW2 Sristi Kumari deposed that on 07.05.2013 she was sitting at second floor of B-41, South-Extension, Part-1 in her P.G balcony while her friends Shifa I.e PW-1 was studying and her other friend Chandni was inside the P.G. At that time accused, who was correctly identified in the Court, came in front of the house on road and upon seeing PW-2, he removed his trouser/pant and started masturbating. Thereafter, Shifa PW-1 and Chandni and PW-2 went downstairs to apprehend him. Accused apprehended and PW-1 called on 100 number. Police arrived and arrested the accused. Her statement was recorded by the police official and no public witness was present as it was late night at around 12:30 a.m to 01:00 a.m. She proved arrest memo and personal search of the accused as PW1/C and PW1/D. PW-2 was duly cross examined by defence counsel.
FIR No.115/2013 State Vs. Ajay Kumar Page No. 37. PW3 Ms. Chandani Gupta deposed that on 07.03.2013 at about 12:30 midnight she was present in her room and her PG mates namely Shifa Khan and Sristi Kumari were present in the balcony of the second floor. They saw accused, who was correctly identified by the witness in the Court, in front of the house on road and upon seeing them accused removed his trouser/paint and started masturbating. They all went downstairs and apprehended the accused while PW-1 Shifa called on 100 number. Police arrived within 20-25 minutes and recorded her statement. No public persons gathered on the spot as it was late night at around 12:30 a.m to 01:00 a.m. She proved arrest memo and personal search of the accused as PW1/C and PW1/D. PW-3 was duly cross examined by defence counsel.
8. PW-4 IO/SI Sushil Kumar deposed that on 07.05.2013 he was posted as a SI at PS K.M Pur. On that day he alongwith Ct. Sachin were on emergency duty from 08:00 PM to 08:00 AM and at about 12:50 Midnight he received DD No. 4A regarding the apprehension of one boy at B-41, South Extension, Part-I through Duty Officer. Thereafter he alongwith Constable Sachin reached at the spot and after reaching there the met with the complainant Ms.Shifa Khan and Srishti, Samridhi and Chandani. They already apprehended the accused Ajay and handed over him to IO. Complainant Shifa gave her written complaint to IO and he endorsed the said complaint Ex.PW1/A. After endorsement he handed over the said complaint to Ct Sachin for registration of FIR. IO recorded the FIR No.115/2013 State Vs. Ajay Kumar Page No. 4 statement of Srishti, Chandani and Samridhi. IO received original rukka and copy of FIR, rukka is Ex.PW4/A. Then he arrested the accused vide arrest memo Ex.PW1/C and also conducted his personal search Ex.PW1/D. Then, IO prepared the site plan at the instance of the complainant Ex.PW1/B. IO recorded supplementary statement of complainant Shifa Khan. IO alongwith the accused and Constable Sachin reached at Police Station. Accused produced one surety at the police station. Thereafter, accused was released on Police Bail. Thereafter, I recorded the statement of Constable Sachin U/s 161 CrPC. On 26.10.2013, I moved one application for recording of statement of complainant Under Section 164 CrPC before this Court. Then, the said application was marked to Link Court. On that day, complainant was also accompanied us. Then, the said Link Court given the date of 16.11.2013. He further deposed that on 16.11.2013 he got recorded the statement of complainant U/s 164 CrPC before Ld. MM Ms. Monika Saroha. Thereafter, he prepared the chargesheet and filed in the Court. He was duly cross examined by defence counsel.
9. On 19.01.2017 proceedings U/s 294 Cr.PC were conducted whereby the accused admitted copy of FIR as Ex.A-1, proceedings U/s 164 Cr.PC as Ex.A-2, rukka as Ex.A-3 and DD Entry No.4A of 07.05.2013 as Ex.A-4. No other PW was examined by prosecution and hence, PE was closed on 28.08.2017
10. Statement of accused was recorded U/Sec.313 Cr.P.C on 08.11.2017 wherein he denied the case of the prosecution and FIR No.115/2013 State Vs. Ajay Kumar Page No. 5 pleaded innocence. However, he stated that he wanted to lead defence evidence.
11. Accused examined his brother Sh. Soman Kumar as DW-1. DW-1 deposed that accused resided with him at E-70, South- Extension, Part-1 and on 07.05.2013 at about 01:00 a.m two police personnel came and interrogated about the accused and took him to the police station on their motorcycle. He was not informed about the reason for arrest and in the morning was made to sign a surety bond after which accused was released. He deposed that the accused has been falsely implicated and that the accused was sleeping at the relevant time. DW-1 was duly cross examined by Ld. APP for State.
12. Final arguments were advanced at length by Ld. APP for the State and counsel for accused.
13. I have considered the submissions and perused the record carefully.
Court Observation:-
14. This being a criminal case, the burden of proving guilt of accused lies upon the prosecution for which the standard required is beyond reasonable doubt. On examining the evidence adduced by the prosecution closely, the following reasons come to light:-
14.1 As regards commission of offence U/s 354A (1) IPC, it has been alleged by the prosecution that accused on the relevant date i.e 07.05.2013 deliberately indulged in the act of masturbation and exhibited the same to the complainant who was studying in her balcony and thereby showed pornography to the complainant FIR No.115/2013 State Vs. Ajay Kumar Page No. 6 against her will. As per English Oxford Dictionary the term "pornography" has been defined as "printed or 'visual' material containing the explicit description or display of sexual organs or activity, intended to stimulate sexual excitement. As per Merriam Webster "pornography" has been defined as the depiction of erotic behavior (as in pictures or writing) intended to cause sexual excitement. It is also means depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.
Complainant has reiterated her allegations as to accused removing his pant and masturbating. This fact has also been corroborated by PW-2 and PW-3. As the act of accused masturbating was within the vision of the complainant PW-1 as well as PW-2, even carrying out of masturbation within such view of complainant would fall within the purview of definition of pornography.
14.2 It is not a disputed fact that accused and complainant or the other public prosecution witnesses were acquittance prior to filing of the complaint Ex.PW1/A except for the limited defence that there had been a dispute over parking between the parties. It is significant, while the accused has raised a defence of the present case being a result of previous dispute over parking when the accused allegedly visited the P.G of the complainant alongwith two other boys as also a fight due to the presence of other boys in their P.G, no such suggestion/defence has been put to other public witnesses such PW-2 and PW-3. It is pertinent to note that while accused has raised this defence of dispute regarding parking same has never been FIR No.115/2013 State Vs. Ajay Kumar Page No. 7 raised by him in his statement U/s 313 Cr.PC nor even at the time of examining DW-1. Accused has not even examined himself to prove his version of the motive behind lodging of the false case against him.
14.3 Furthermore, site plan Ex.PW1/B also shows a vast distance between residence of the complainant and of the accused and thus does not plausibly explain or support the defence of a possible parking dispute. It remains vague and ambiguous as to what parking vehicle was disputed by the parties.
14.4 There are no infirmities in the version of the complainant made in her complaint Ex.PW1/A. Her statement U/s 164 Cr.PC Ex.A2 and her deposition before the Court as PW-1 is coherent and corroborative with the deposition of other public witnesses I.e PW-2 and PW-3. Mere non reporting of previous incidents of the pornography exhibited by the accused does not render the prosecution case as weak or lend any support to the defence of the accused. Even the fact of not examining an independent public witness lead to any adverse inference against the prosecution as it is difficult to perceive presence of any public person on the road the dead hour of the night.
15. The Court cannot be oblivious of the fact that it takes a lot of courage for a young female such as the complainant and her friends PW-2 and PW-3 to report such allegations of showing of pornography by way of masturbation by the accused or exhibition of indecent gestures including removal of his pant and pursue the FIR No.115/2013 State Vs. Ajay Kumar Page No. 8 complaint till its logical end especially when the accused is neither related to them nor known to them. It would unjustified to discourage such tenacity of a vulnerable section of the society by discrediting their testimony on account of immaterial or technical discrepancies. The facts and circumstances of the case clearly rule out any possibility of an ulterior motive against the accused. The act of removal of pant by the accused and exhibition of his sexual organs falls within the definition of showing of pornography as well as is a gesture intended to insult the modesty of any woman. The very fact that such an act has been complained and reported to the police implies the absence of will of the complainant to such pornography. In the backdrop of this discussion, the Court concludes that the prosecution has proved offence U/s 354A IPC as well as offence U/s 509 IPC against the accused beyond reasonable doubt. Accused Ajay Kumar stands guilty of committing of offence punishable U/s 354A/509 IPC.
(Announced in the open
Court on dt. 15.03.2018) (Charu Gupta)
MM/Mahila Court-01, SED
Saket Courts/New Delhi
FIR No.115/2013 State Vs. Ajay Kumar Page No. 9