Delhi District Court
State vs . Sushil Kumar Sharma on 30 August, 2014
IN THE COURT OF MS. ANKITA LAL: METROPOLITAN MAGISTRATE01:
MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI
STATE Vs. SUSHIL KUMAR SHARMA
FIR No. : 367/2003
U/S : 354/506 IPC
PS : Mehrauli
Case ID : 02403R0376402004
JUDGMENT
a) Sl. No. of the case : 235/02
b) Date of commission of offence : 04.08.2003
c) Date of institution of the case : 16.02.2004
d) Name of the Complainant : Smt. Vibha Sharma
e) Name & address of the : Sushil Kumar Sharma,
accused S/o Sh. Jitendra Sharma
R/o B9/265, Phase4, Aaya
Nagar, New Delhi.
f) Offence complained of : 354/506 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 26.06.2014
i) Date of Judgment : 30.08.2014
j) Final Order : Conviction
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused persons are facing trial in this case for the offence punishable u/s 354/506IPC. The allegations are that on 04.08.2003 at 1:00PM, the accused Sushil Kumar Sharma, went to the house of the complainant Smt. Vibha Sharma and told her that he will help her family in FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 1 of 30 compromising one Mahavir's case, and when the complainant opened the door, he entered into her house and used criminal force with intention to outrage her modesty. It is also alleged that accused Sushil Kumar Sharma threatened the complainant Smt. Vibha Sharma with injury on her person in case she reported the matter to the police and thereafter absconded from the place of incident.
2. During investigation, the accused was arrested and site plan was prepared. Statements of witnesses were recorded u/s 161 Cr.P.C.
3. After completion of investigation, chargesheet was filed in the Court on 16.02.2004. Court took cognizance on the same day. Copy of the chargesheet was supplied to the accused u/s 207 Cr.P.C.
4. A prima facie case for the offences punishable u/s 354/506 IPC was made out against the accused and charge for the said offences was, accordingly, framed upon him to which he pleaded not guilty and claimed trial.
5. In order to prove its case 10 witnesses were examined by the prosecution.
Out of 10 witnesses, 5 are the public witnesses and remaining 6 are police officials.
Public witness
6. The four public witnesses examined by the prosecution are PW2 Vibha Sharma (complainant herself), PW3 Ambika (mother of the complainant), PW4 Smt Ranju Pandey, PW5 Sh. Dhananjya Kumar and PW9 Sh. Prabhat Ranjan (all three neighbours of the complainant).
7. PW2 Smt Vibha Sharma deposed that she was a house wife. She further FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 2 of 30 deposed that she was sleeping and she heard the call bell and she came outside and opened the door. She further deposed that she saw that accused was standing outside her door and asked her to open the door and told her that he wanted to talk to her regarding her husband. She further deposed that while talking he held her hand and when she asked him not to do so, then he started misbehaving with her and thereafter, she snubbed him and pushed him. She further deposed that on hearing her voice, her mother came out and in the meantime accused ran from her house and before leaving he threatened her. She further deposed that she called the police on number 100 but the police did not do anything. Thereafter, police from PS reached her house. By that time, her neighbours had also gathered and, thereafter, she wrote a complaint Ex.PW2/A and police prepared site plan at her instance and accused was arrested and personally searched by the police.
8. During cross examination by the Ld. defence counsel, the witness has stated that she was graduate and residing in Delhi since 1996 and she knew accused for last 15 years. She further deposed that accused used to visit her house several times before also. She further deposed that before this incident, accused never misbehaved with her. She further deposed that before the episode, she did not have any suspicion on the intention of the accused. She further deposed that at that time she was not aware about the case in which her husband was arrested but afterwards she came to know that one Mahavir had filed a case again her husband. On being further questioned as to how the accused misbehaved FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 3 of 30 with her, she told that the accused caught hold of her hand, body, shoulder and also held her chest. She further deposed that accused had entered in the middle room of her house, which contains the bed also and the accused stayed in her house for about 15 minutes. She further deposed that her mother was also at the house and when she shouted, her mother came out, and the accused started running. She, thereafter, abused the accused due to which the neighbours came out, who saw the accused running. She stated that one of such neighbours was her sister. She denied all other formal suggestions put to her.
9. PW3 Ambika, who is the mother of the complainant had deposed before the court on 08.08.2008. But since despite several attempts, she could not be recalled for cross examination, her examination in chief was struck off and she was dropped from the list of witnesses, pursuant to a request made by counsel for the complainant, vide order dated 25.10.2014. Thus, her deposition is not being taken into consideration.
10. PW4 Ranju Pandey had deposed that she is a house wife and studied upto 7th standard. She further deposed that on 03.08.2003, at about 1:00am, she was present at the roof of her house as there was no electricity on that night and she heard the noise of knocking of the door of her brother Kanhaiya's house, who was residing opposite to her house. She further deposed that she thought that her husband might have come back and that is why he was knocking the door of her brother's house. She also voluntarily stated that on that night, her husband had gone to police station to enquire about her brother as her brother was apprehended by FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 4 of 30 the police. She further deposed that she saw accused Sushil Kumar Sharma knocking the door of her brother's house and when her bhabhi Vibha Sharma opening the door, the accused enquired from her bhabhi regarding the case in which her brother Kanhaiya was a suspect. She further deposed that the accused also told her Bhabhi that Mahavir Sharma was his friend and he will talk to him about her brother Kanhaiya. She further deposed that, thereafter, her Bhabhi and the accused went inside the house, and after 1015 minutes she heard the shouts of her Bhabhi and saw accused Sushil running out from the house of her Bhabhi, and was threatening her of dire consequences in case the matter is reported to the police. She further deposed that her Bhabhi told her that the accused had misbehaved with her. She also deposed that the accused wanted to take the liberty of the absence of her brother and as the mother of her Bhabhi arrived, she was saved.
11. During cross examination by the Ld. defence counsel, the witness has stated that she knows the accused for last 20 years. She further deposed that accused had visiting terms with her before the incident. She further deposed that there was no electricity in her house but there was electricity in the house of her brother. She further voluntarily stated that there was three phase light in the mohalla, and some of the houses were having light while some of the houses were not having light. She further deposed that distance between her house and her brother's house is about 18 feet. She further deposed that her husband had gone to the police station Mehrauli at about 5:00pm as her brother Kanhaiya had been taken by the police to FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 5 of 30 PS Mehrauli earlier. She further deposed that many persons of the mohalla gathered there but she does not know the name of every persons, and she only remembers the name of Dhananjay and Prabhat Ranjan.
12. PW5 Dhananjay Kumar had deposed that in the month of August, 2003, there was no light in their gali and there was no light in 8 number gali. He further deposed that when he reached to the corner of his gali he saw that Sushil Sharma was knocking the door of his house and then entered his house. He further deposed that when he reached near the house of Kanhaiya Sharma, he saw a gathering in front of the house, and when he enquired from the people regarding the purpose of gathering, then people told him about the incident and thereafter he came back to his house.
13. During cross examination by the Ld. defence counsel, the witness has stated that he was 12th pass and was unemployed at that time and colony people had entrusted the work of maintaining the electricity in the locality upon him. He further deposed that he was assisted by many persons, namely, accused and other persons, in repairing the electricity work. He further deposed that he had gone to repair the electricity in between 12:301:00am on the night of 0304/8/2003. He further deposed that there was fault in only one phase of electricity that was running in their colony. He further deposed that there was electricity in the street of the complainant Smt. Vibha Sharma. He further deposed that they have neighbourly relationship. He further deposed that the distance of the house of the accused persons from his house is about 1015 steps and the distance of the house of the complainant Smt. Vibha Sharma from his FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 6 of 30 house is about 100115 steps.
14. PW9 Prabhat Ranjan had deposed that in the intervening night of 3/4.08.2003 at about 1/1:30am, he was coming back from his office located at Sant Nagar, New Delhi to his house BBlock Phase4, Aaya Nagar, New Delhi. He further deposed that when he reached near the house of Kanhaiya Sharma he saw accused Sushil Kumar Sharma was coming out from Kanhaiya Sharma's house threatening that he would see if matter is reported to the police. He further deposed that Vibha Sharma was raising an alarm that the accused was running after misbehaving with her.
15. During cross examination by Ld. defence counsel, the witness has stated that he knew accused for last 10 years. He also stated that he does not remember his house number in Aaya Nagar where he was residing at that time and voluntarily deposed that it was a rented accommodation. He further deposed that house number of Vibha Sharma was B8/215, Phase4, Aaya Nagar, New Delhi. He further deposed that he came to know regarding the arrest of Kanhaiya Sharma in the evening when he was working in the field. He further deposed that first he saw accused running, then he saw complainant Vibha Sharma who was behind him and then public gathered around. He further deposed that accused was 100150 meters away from him. He again said that it was hardly 2022 steps. He denied the suggestion that when he reached at Vibha Sharma's house there were public persons already there. He further deposed that there was about 1015 persons assembled near Vibha Sharma's house. FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 7 of 30 He further denied the suggestion that he has nexus with the husband of the complainant and Sh. Ramesh Chander, the IO in the present case. Police witnesses:
16. PW1 HC Subhash Chand, No.205/SD, PS Greater Kailash, New Delhi, has deposed that on 04.8.2003, he was posted as Duty Officer at P.S. Mehrauli from 12:00pm to 8:00am and at about 3:00pm Ct. Charan Singh had brought a rukka sent by SI Ramesh on the basis of which he recorded case FIR no.367/03 Ex.PW1/A and also made endorsement Ex.PW1/B. During cross examination by the Ld. defence counsel, the witness has stated that he had recorded the FIR on the basis of the rukka sent by SI Ramesh.
17. PW3 HC Devender has deposed that he has brought the original FIR No. 316/2002 (Ex.PW3/A) which was recorded by him on 27.06.2002. During cross examination by the Ld. defence counsel, the witness has stated that he had received the tehrir at about 12:20 pm on 27.06.2002 and he had recorded the FIR as per the tehrir sent to him by the IO.
18. PW6 HC Subhash Chand, No.731/RB, New Delhi, has deposed that on 07.08.2003 he was posted at P.S Mahrauli as a constable and he was on emergency duty from 08:00 pm to 08:00 am and he was on duty alongwith SI Ramesh Chander when he received a call regarding over turning of a truck and reached at the spot alongwith SI Ramesh Chander at Air Force Station. He further deposed that SI Ramesh Chander said that they have to go to Aya Nagar in connection with some investigation and there they met witness Dhananjay Kumar. He further deposed that witness disclosed FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 8 of 30 that at about 1:151:20 am, he had seen the accused running from the house. He further deposed that when they went further they heard the noise coming from the house of Kanhaiya and many people gathered there, where witness Prabhat Ranjan also met them. He further deposed that IO recorded the statement of witness Prabhat Ranjan and people were shouting "Pakdo Pakdo".
19. During cross examination by the Ld. defence counsel, the witness has stated that he did not get the intimation of the overturning of the truck and the same was received by the IO. He further deposed that he does not recollect the time when he started for Aya Nagar Phase IV on 07.08.2003 and that he saw Dhananjay Kumar and Prabhat Ranjan on the road. He further deposed that the crowd which assembled near the place of incident was only of 67 people. He further deposed that there were male members only in the said assembly. He further deposed that he does not know whether the IO recorded the statements of any other person except Prabhat Ranjan and Dhananjay Kumar and he does not recollect who shouted the words "Pakdo Pakdo".
20. PW7 Ct. Charan Singh has deposed that on 04.08.2003, he was posted at P.S. Mehrauli as a constable and was on emergency duty and on receipt of DD No.34A he alongwith SI Ramesh Chand went to Aya nagar, Phase IV. He further deposed that there one lady met them, who told that accused Sushil came to her house and when she opened the door, the accused misbehaved with her. He further deposed that the complainant gave a complaint to IO, and that he alongwith IO and complainant reached FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 9 of 30 at the house of the accused, where accused was present. He further deposed that IO handed over rukka to him for registration of the case, and after registration of the case he handed over the copy of FIR and original rukka to IO. He further deposed that accused made his disclosure statement in his presence, which is Ex.PW7/A bearing his signatures at point A.
21. During cross examination by the Ld. defence counsel, the witness has stated that he does not know who made the emergency call and voluntarily said emergency call was received in the P.S. The witness has stated that he started from Aya Nagar, around 1:30 am alongwith SI Ramesh Chander. The witness also stated that when he went to the complainant's house in Aya Nagar he saw the complainant, her children and her mother and a police Gypsy of 100 number was also parked there.
22. PW8 SI Gaurav Aggarwal had deposed that on 05.11.2013 he was posted at District Investigation Unit South. He further deposed that file of the present case was handed over to him for further investigation. He further deposed that he reexamined the complainant and recorded the supplementary statement of the complainant.
23. During cross examination by the Ld. defence counsel, the witness has stated that prior to him, the IOs in this case were SI R.N. Chaudhary and SI Ramesh Chander who were posted in P.S. Mehrauli at that time. Witness also stated that he visited the spot i.e. Aya Nagar and interrogated the public witnesses and he does not recollect the name of the public persons whom he interrogated. Witness has further stated that the FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 10 of 30 accused met him during the investigation and he had interrogated him.
24. PW10 Inspector Ramesh Chander has deposed that on 04.08.2003, on receipt of DD No.34A, he alongwith Ct. Charan Singh reached at Aaya Nagar Extension, H. No. B8/215 where he met with the complainant, who gave her complaint Ex.PW2/A upon which he prepared tehrir Ex.PW10/A and got the case registered through Ct. Charan Singh and during investigation he prepared site plan Ex.PW10/B at the instance of the complainant. He further deposed that accused was arrested on the identification of the complainant and his personal search was conducted vide Ex.PW2/B and Ex.PW2/C. He further deposed that disclosure statement of the accused Ex.PW7/A was also recorded and he recorded the statements of witnesses in the present case and filed the challan after completion of investigation.
25. During cross examination by the Ld. defence counsel, the witness admitted that he was the IO in another FIR in which one Mahavir was the complainant. Witness has further voluntarily stated that the said FIR was lodged on the complaint of complainant Mahavir and pertains to the incident about one year prior to the incident leading to the present FIR and that he had filed the untrace report in the said other FIR. Witness has further stated that he later on arrested two accused on the NBWs issued by the court at his instance, who were named by the said complainant. Witness has further stated that the said two accused persons were Kanhaiya Sharma and Vijender but no recovery was affected from the said accused persons. Witness has further voluntarily stated that the accused FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 11 of 30 Kanhaiya Sharma as well as accused Vijender were in his custody at the time of the incident in the present FIR. Witness has further stated that he does not recollect for what reasons he had sent the notice Mark X to Sushil Kumar Sharma and he does not recollect for which case the said notice Mark X was given to Sushil Kumar Sharma. Witness has further stated that in the case lodged by Mahavir, he was pressurized by Mahavir and accused Sushil Kumar Sharma for illegally beating said Vijender and Kanhaiya Sharma. Witness has further admitted that FIR bearing no. 316/02 u/s 452/506/392/201/34 IPC and Sections 27/54/59 of Arms Act in which both the said accused Kanhaiya Sharma and Vijender are accused was that FIR which has been lodged on the complainant of Mahavir. Witness has further stated that he got the information regarding the incident in question in the present FIR by DO through Constable Nem Chand as report was received by the PCR at 100 number. Witness has further stated that he got the call regarding the incident at 1:25 am on 04.08.2003 and he reached at PhaseIV, Aya Nagar after 2025 minutes after receiving the call. He received the complaint and sent rukka at about 2:30 am dated 04.08.2003 through Ct. Charan Singh and they were only two persons-himself and Ct. Charan Singh who had attended the call. Witness has further denied the suggestion that the complaint had written the complaint in the PS at his instance. Witness has further stated that he recorded the statements u/s 161 of Cr.P.C of the witnesses namely Ranju Pandey, Ambika (mother of the complainant) after the registration of the FIR on that day. Witness has further stated that he recorded the FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 12 of 30 statement u/s 161 of Cr.P.C of Ct. Charan Singh on 04.08.2003. Witness has further denied the suggestion that he has nexus with said Kanhaiya Sharma who was involved in business of Spurious Medicines. Witness has further stated that after arresting the accused Sushil Kumar Sharma in the night of 03/04.08.2003, he was kept in the lock up of the P.S. Mehrauli where Kanhaiya and Vijender were already kept. Witness has further denied the suggestion that in the lock up he had ruthlessly beaten accused Sushil Kumar Sharma and hurled dirty abusive languages at him. Witness has further denied the suggestion that he kept hatred and enmity against the accused Sushil Kumar Sharma as his brother Mritunjay Kumar did not pay him Rs.20,000/as illegal money as he wanted to construct a building in the Aya Nagar. Witness has further denied the suggestion that by some arrangement he was assigned the duties of the IO in both the FIRs i.e. FIR No.316/02 & 367/03 as he wanted to teach a less to on the accused Sushil Kumar Sharma and voluntarily stated that it was just a matter of coincident that he became IO in both the FIRs as he was on emergency duty on both nights when incidents took place.
26. After completion of evidence entire incriminating circumstances were put to the accused u/s 313 Cr.P.C. on 05.03.2013. Accused had denied all the circumstances and evidences, and stated that he has been falsely implicated in the present case. He also stated that he is being falsely implicated in the present case as he is a friend of one Mahavir who has filed a docoity case against Kanhaiya Sharma (husband of the present complainant) and another person named Vijender. He also stated that FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 13 of 30 since he is a witness in the said docoity case, and as the IO in the present case is also the IO in the other case, therefore, the said IO in connivance with the husband of the complainant and the complainant has implicated him in this false case. He also alleged several allegations of misconduct of IO/SI Ramesh Chander in dealing with the docoity case and his misconduct with him in the present case as well. Accused had led defence evidence and examined six defence witnesses in evidence, namely, DW1 Mahavir Singh, DW2 Sh. Shyambir, DW3 Sh. Gaurav Pandey, DW4 Sh. Swami Nath Pandey, DW5 Smt. Vidhya Devi and DW6 Smt. Devendri. DEFENCE EVIDENCE
27. DW1 Mahavir has deposed that Kanhaiya and Vijender attacked him at his home. He further deposed that the IO Sh. Ramesh Chander in the said case did not take any action for two days, and rather the said IO mounted pressure upon him by saying that the chain etc. will be returned to him if he compromises the matter with Vijender and Kanhaiya. He further deposed that summons from the court of Sh. S.S. Rathi came to him and both he and Sushil Kumar Sharma appeared before the said court. He further deposed that on the direction of the Hon'ble Court, IO recorded his statement u/s 161 Cr. P.C in the court premises. He further deposed that on 03.08.2003, the accused namely Vijender and Kanhaiya were arrested by the IO after the direction of the court. On that day in the evening, he alongwith Sushil Kumar was called by the IO at P.S Mehrauli and he identified Kanhaiya and Vijender in the P.S Mehrauli. He further deposed that on the same night, the IO Ramesh Chander arrested Sh. Sushil FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 14 of 30 Kumar Sharma. He further deposed that after his arrest, the wife and brotherinlaw (saadu) of Sushil Kumar Sharma approached him, and thereafter, he alongwith brotherinlaw of Sushil Kumar Sharma reached at the P.S and there he came to know through IO Ramesh Chander that accused namely Sushil Kumar has been apprehended in a rape case with the wife of Kanhaiya. After that he returned his home.
28. During cross examination by the Ld. APP for the State, the witness has stated that on 2425.06.2002, accused Kanhaiya and Vijender attacked him at about 2.002.30 AM (in the night). The witness has further stated that he know Kanhaiya because he was his neighborer and the distance between the house of Kanhaiya and his house is about 500 meter. He further mentioned that at the time of attack, he was sleeping. The witness has further stated that the accused Kanhaiya and Vijender entered in his premises from the roof of his house from back side and his house is double storey building. The witness has further stated that at the time of attack, he alongwith his mother, his wife and five children were present in his house. The witness has further stated that at the time of incident, accused Vijender had a knife and accused Kanhaiya had a pistol (fire arm) with them. The witness has further stated that no legal action (civil or criminal) was taken by him or accused Sushil Kumar regarding the dispute of the aforesaid plot against Kanhaiya and Vijender, and he had never met the IO Ramesh Chander, prior to the case between him and the accused Kanhaiya and Vijender. The witness has further stated that no legal/departmental action was taken by the DCP/ACP concerned against FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 15 of 30 the IO Ramesh Chander regarding the nonregistration of case FIR no. 316/2002 and he also did not take any legal action/any complaint against the IO Ramesh Chander, as said IO was threatening him as well as Sushil Kumar Sharma for implicating in false case.
29. DW2 Shyambir had deposed that at about 01:00am of the intervening night between 03.08.2003 and 04.08.2003, he heard a noise of beating of doors at the gate of the house of Sushil Kumar Sharma and some person were standing at the gate hiding themselves. He further deposed that the said persons including Sh. Harbola, the police officer, caught hold of accused Sushil Kumar Sharma who was in lungi and banyan and took him to some other place. He further deposed that when he confronted the police officer as to why Sushil Kumar was being taken, he replied nothing, and he did not see any PCR also outside the house of the accused.
30. During cross examination by the Ld. defence counsel, the witness has stated that there were three police officials in civil dress and some neighbourers were also watching the scene. The witness has further stated that he knows Vibha Sharma who was also his neighbour and he knows Ramesh Chand Harbola who was Beat Incharge and who used to threaten Sushil Kumar Sharma by saying that "tumhe dekh loonga, tumhe goli maar dunga, tumhari naukri khatam karwa dunga".
31. DW3 Gaurav Pandey had deposed that he had taken a room on rent in the house of Sushil Kumar Sharma and he again said that accused had permitted him to stay in one of his rooms but never charged any rent from him. He further deposed that he had shifted to the said room 15 days back FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 16 of 30 from 03.08.2003 as the exam in which he was going to appear was scheduled to take place on 28.08.2003. He further deposed that after 12:30 am in the night of 03.08.2003, he heard a sound of "khat Khat" (knocking sound) at the doors of the accused. When he saw from the balcony, somebody who was standing near the gate was shouting loudly and using abusive words. The said person called accused and asked him to come outside and it continued for some time. He further deposed that accused told the said person as to why he had to come at the dead of night and that he should come in the morning for any enquiry. He further deposed that the moment accused opened the doors of his house, he was overpowered by two more persons in addition to the said person.
32. During cross examination by the Ld. defence counsel, the witness has stated that due to lapse of time, he cannot say the name of the person, but he was one Harbola. The witness has further stated that after 810 minutes accused opened the door and 23 persons caught hold of the hand of accused and they shifted him somewhere inside the gali and he can identify only one person out of three persons who dragged accused in the gali. The witness has further stated that he did not know Vibha Sharma prior to the present case.
33. DW4 Swami Nath Pandey has deposed that on 03.08.2003, he was staying in the house of accused in Aaya Nagar, Delhi as a tenant. He further deposed that in the night of 03.08.2003, he was on the first floor of the premises of the accused and he heard some noise on the ground FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 17 of 30 floor. He further deposed that at the call of somebody outside the gate, who was hurling abusive words at the accused, he opened the doors. He further deposed that accused was wearing lungi and banyan only and the moment accused opened the doors, he was overpowered by three persons. He further deposed that he did not see any PCR van and any police person in uniform in that locality when the said three persons misbehaved and forcibly dragged accused from his house.
34. During cross examination by the Ld. defence counsel, the witness has stated that he remained in the house of accused from December, 2002 to 2003. The witness has further stated that at the time of alleged incident he was alone and when he came out of his room he saw that there were three persons present there. The witness has further stated that he could not identify any of them either by their name or by their face.
35. DW5 Vidya Devi has deposed that she knows much about this case against accused, as the accused was a friend of his son, namely Mahavir. She further deposed that the accused often visits to her house where the bahu's and beties (daughterinlaw and daughter) used to sit. She further deposed that she has no complaints whatsoever against accused regarding having an objectionable view on the female members of her family and expressed disbelief that the accused can ever outrage the modesty of the complainant.
36. During cross examination by the Ld. APP for the State, the witness has stated that accused was her neighbour and 510 houses are situated between her house and the house of accused. The witness has further FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 18 of 30 stated that a theft had occurred in her house and being a friend of her son namely Mahavir, the accused helped her in that case, wherein Vijender and Kanhaiya were the accused. The witness further deposed that thereafter, Vijender and Kanhaiya booked the accused in the present case using the wife of Kanhaiya.
37. DW6 Devendri, who is the wife of Mahavir (friend of the accused), had deposed that she knew accused since last 1012 years and accused was her neighbour and to her knowledge, he was a thorough gentleman and bears a good moral character. She further deposed that in the year 2002, a theft was committed in her house in which Kanhaiya Sharma and Vijender were involved which is pending before some other court. She further deposed that accused have been falsely implicated by the Thanedaar Ramesh in connivance with above named Kanhaiya Sharma and Vijender, as the accused Sushil Kumar Sharma helped her in the theft case which was going on against Kanhaiya Sharma and Vijender. She further deposed that accused Sushil Kumar Sharma has a full fledged family of his own comprising his wife and daughter and he had been very often visiting to her house and she have closely watched him and she has not found him to be behaving in a different manner and he was a disciplined person and he has not committed any offence like outraging or attempting to outrage the modesty of any woman.
38. During cross examination by the Ld. APP for the state, the witness has stated that accused Sushil Kumar Sharma was her neighbour and his house is adjacent to her house and a theft had occurred in her house and FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 19 of 30 being a friend of her son namely Mahavir, the accused helped them. The witness further deposed that in that case, Vijender and Kanhaiya were the accused and she does not know who is the complainant of the present case. She further deposed that she knew the accused for the last 12 years but she had only heard about the person Kanhaiya and Vijender and had not seen them at any time.
39. Final arguments were heard. Record perused.
40. Ld. APP for the State prayed for conviction of the accused stating that all the witnesses have corroborated each other in material particulars.
41. Counsel for the accused had basically relied upon 23 contentions to defend the accused. First and foremost it was argued that there is a DD entry no. 34A dated 03.08.2003 on record, however, the same has not been exhibited by any prosecution witnesses and therefore the document remains unproved. He had argued that PW7 Ct. Charan Singh had mentioned in his deposition that while he was on emergency duty on 04.08.2003 he had received a DD no.34A and thereafter he along SI Ramesh Chander went to the spot of incident. Counsel for the accused had argued that it has nowhere shown by the prosecution as to who recorded the said DD entry. It is also argued that PW10 IO had also mentioned in his crossexamination that he had got information regarding present incident from IO through Ct. Nem Chand. But said Ct. Nem Chand has also not been examined by the prosecution.
42. It is further argued that the deposition of PW6 is not only vague but there are several contradictions in the said deposition. He pointed out that firstly FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 20 of 30 the date of the incident has been wrongly mentioned in the deposition. Moreover, PW6 i.e. HC Subhash Chand had stated that he was on emergency duty on 07.08.2003 from 8:00am to 8:00pm, and he alongwith SI Ramesh Chander had received a call regarding the over turning of a truck. Thereafter, when he alongwith SI Ramesh Chander went to Air Force Station, later on SI Ramesh Chander asked him to to go Aaya Nagar, New Delhi in connection with some investigation. Thus, he alongwith SI Ramesh Chander reached at Aaya Nagar, Phase4, New Delhi. Ld. defence counsel also mentioned that PW6 had mentioned the name of the accused as 'Sunil Kumar' in his deposition. He further mentioned that even during cross examination of PW6, he mentioned that there were only two persons i.e. he himself and IO Subhash Chander who had gone to Aaya Nagar on 07.08.2003. He further pointed out that during later part of the cross examination the said witness had again faltered when he stated that there were only male members in the assembly of people which gathered near the place of incident, but again said that there were female persons also. Counsel for the accused had argued that due to such discrepancies and ambiguities of PW6 his evidence becomes highly unreliable. He had further argued that it is also evident from the deposition of Ct. Charan Singh PW7 as well as IO/SI Ramesh Chander PW10 that it was said IO alongwith Ct. Charan Singh, who had gone to the place of incident i.e. Aaya Nagar, New Delhi, on the day of the incident. Thus, in view of the ambiguity in the deposition of PW6, whereby his role cannot be ascertained, a doubt is cast in the prosecution case. FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 21 of 30
43. Counsel for the accused had further stated that in fact this case has been filed against the accused as the present accused was one of the witness in another complaint which was filed by one Mahavir, who is friend of the present accused, against the husband of the complainant Kanhiaya Sharma and another coaccused. It is argued that due to the said animosity between the husband of the complainant and the accused, and in connivance with IO/SI Ramesh Chander who is also IO in the said other case filed by Mahavir, the present false and frivolous complaint has been made against the accused. He had further argued that the incident is of intervening night of 34.08.2003 and on 03.08.2003 itself the husband of the complainant Kanhiaya Sharma was arrested by IO/SI Ramesh Chander on directions of the court in the docoity case filed by Mahavir. It is further argued that the present accused was called for identification of Kanhaiya Sharma and other coaccused Vijender to PS. Mehrauli, in the said decoity case, where infact the IO had misbehaved with the present accused and also threatened that the accused in the present case will have to pay a heavy price for giving such complaint against the husband of the complainant.
44. Further, counsel for the accused had also submitted that the evidence of mother of the complainant, who was an eye witness and was examined in chief as PW3, has also been struck off as despite several attempts the said witness could not be recalled for cross examination. Ld. Defence counsel argued that an adverse inference should be drawn from the said fact, as the prosecution is intentionally trying to hide the said witness from FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 22 of 30 appearing in the court and from being cross examined. Counsel for the accused also mentioned that as DD entry No. 34 A has not been proved and which was infact the first information regarding the incident received by the police, it can be easily perceived that there has been some foul play, and the present complaint is of frivolous nature. He argued that the entire complaint and the documents filed by the prosecution in the present case have infact been prepared by the IO SI Ramesh Chander in connivance with the husband of the complainant. On the basis of these arguments, he had submitted that the prosecution story is fraught with several discrepancies which has remained unexplained. Therefore, the accused should get the benefit of doubt and should be acquitted for the charged alleged against him.
45. At this stage, I would like to discuss the provisions of law for which the accused has been charged i.e. Section 354/506 of IPC. In order to bring home the guilt for the offence punishable under Section 354 IPC, the prosecution has to prove the following ingredients:
i) That the victim concerned belonged to fair sex -
whatever her age may be;
ii) That the accused subjected her to assault as defined in Section 351 of Indian Penal Code or to criminal force as defined in Section 350 IPC; and
iii) That the accused while committing assault or using criminal force intended to outrage the modesty of the victim or was likely to outrage her modesty.
Further, Section 506 of IPC provides punishment for criminal intimidation and reads under:
FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 23 of 30
Punishment for criminal intimidation.
̶Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
46. I have considered the submissions of the rival parties and have throughly perused the record.
47. Counsel for the accused had emphasized on the fact that DD no. 34 A has not been proved. Accordingly, he has argued that the present complaint is frivolous in nature and has been prepared by the IO in the P.S. itself in connivance with the husband of the complainant namely Kanhiaya Sharma. In view of the said arguments an application was also moved by the counsel for the accused, after the final arguments were heard, U/s 311 of Cr.P.C for recalling of witnesses for the purpose of proving the said DD entry. However, the said application was dismissed by this court vide order dated 08.08.2014. In my considered view the fact that the said DD entry has not been proved cannot be a reasonable ground for casting doubt on the prosecution story. It is a settled position of law that the investigation starts from the lodging of the FIR U/s 154 of Cr.P.C and not from any intimation received by the police which is recorded in the form of DD entry. Thus, the fact that DD no.34A which is alleged as the first intimation received by police regarding the alleged incident is not per se material piece of evidence and merely because the said document has not been proved, accused can not be acquitted. The FIR lodged in the FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 24 of 30 present matter on 04.08.2003 is very much on record and which gives a clear description of the alleged incident.
48. Further, the arguments that the adverse inference be drawn for non examination of PW3 Ambika (mother of the complainant) by the prosecution is also without any merits as it would infact have been beneficial for the prosecution to examine the said witness which was a material witness being an eye witness of the alleged incident. Moreover, the entire evidence of PW3 was struck of by the court as despite several efforts of PW3 had failed to appear before the court. In such circumstances, the liability cannot be burdened upon the prosecution that they had tried to mask the said witness from appearing and being examined before the court.
49. Moreover, Ld. Counsel for the accused also alleged that the complainant had falsely implicated the accused in the present case in connivance with husband of the complainant Kanhaiya Sharma in the present case. The entire defence story is based on the said allegation of connivance. The accused had infact given an elaborate statement U/s 313 of Cr.P.C where he made several allegations against not only IO Ramesh Chander but also against the husband of the complainant Kanhaiya Sharma. The accused had alleged that since he was helping his friend Mahavir in docoity case in which Kanhaiya sharma (husband of the complainant) and one Vijender are accused, therefore, the complainant's husband had developed vengeance against him which was also shared by IO/SI Ramesh Chander and, thus, they have together conspired against the accused to drag him FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 25 of 30 in false complaint. Accused also mentioned that he had given several complaints to Higher Authorities of Police and also to other Higher Authorities such as Joint Secretary, Union Territory of Delhi and to Special Commissioner Administration regarding the said conduct of IO. He had mentioned in his statement U/s 313 of Cr.P.C that, thereafter, an Inquiry was also conducted against ACP Shyam Sunder as well as IO/SI Ramesh Chander Harbola and the matter was assigned to DIU, South District. He had mentioned in his statement that IO/SI Ramesh had not only misbehaved and threatened him several times, but also asked him to withdraw his support from Mahavir's case and then he will help him in acquittal in the present case. It is a matter of record that these allegation made by the accused has not been proved anywhere in defence evidence.
The accused had neither produced documents regarding any departmental inquiry on SI Ramesh or of any other person, whom he alleged were involved in creating a pressure upon him that he should not help Mahavir in docoity case. It is also a matter of record that in the cross examination of PW10 he had categorically stated that in vigilance enquiry initiated against him by accused Sushil the allegations have been found to be untrue after a detailed inquiry. He had denied all other suggestions of defence counsel who had alleged that he had a nexus with Kanhaiya Sharma, husband of the complainant, or that he was assigned the present investigation in the matter due to his connivance with Kanhaiya Sharma. PW 10 IO in fact mentioned in his cross that it was only a matter of co incident that he had became IO in both cases i.e. the present case and FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 26 of 30 other case of docoity filed by Mahavir Singh against Kanhaiya since he was on emergency duty on both nights when the incident took place. Moreover, from the record it is clear that DW1 Mahavir Singh had also not supported any submissions of the accused regarding any inquiry initiated by him against the accused by IO in the present case or any complaint given by the accused to other authorities regarding th conduct of the said IO.
50. Furthermore, it is also evident from the record that all the defence witnesses have admitted that 23 persons came to the house of the accused on intervening night of 03/04.08.2003 and knocked his door and when the accused opened the door, he was overpowered by the said persons, among which one of the person was identified as IO of the present case namely SI Ramesh Chander Harbola. The said fact is undisputed even by the complainant who had alleged that when the police came to her residence on the alleged night of the incident, she had informed the police about the residence of the accused and, thereafter, the police alongwith complainant went to the house of the accused where the accused was arrested pursuant to the identification by the complainant. None of the defence witnesses could state that whether there was any other reasons for the police officials to have come to the residence of the accused on the alleged day of incident.
51. Moreover, there are certain ambiguities and discrepancies as well in the deposition of defence witnesses. While DW2 mentioned that at around 1:00am in the intervening night of 3/4.08.2003, he heard the noise of FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 27 of 30 beating of the house of the accused; DW3 deposed that that it was around 12:30am and DW4 only mentioned that it was some time in night on 03.8.2003. Further, the accused in his statement u/s 313 of Cr.P.C had mentioned that his wife had opened the doors on the alleged date of incident when IO came knocking at his door. However, DW2, DW3 and DW4 had mentioned that it was accused who was dressed in a lungi and banyan, who opened the doors when the said IO came at his house on the alleged day. Further, accused had mentioned in his statement u/s 313 of Cr.P.C that he was dragged by the IO and was taken to the house of the complainant Vibha Sharma where the police Gypsy was parked; whereas the defence witnesses have mentioned that they have not seen any PCR van outside the house of the accused. Thus, the defence witnesses have been unable to corroborate the submissions of the accused as stated in statement u/s 313 of Cr.P.C. DW1 Mahavir had deposed that he had not taken any legal action or any complaint against IO Ramesh Chander stating that he was being threatened by the said IO. The defence story itself does not appear to be plausible enough, as even if it is assumed that there was some animosity developed between the husband of the complainant regarding the case of docoity filed against him, the victim of this vengeance should have been Mahavir not Sushil Kumar Sharma. The defence witnesses DW5 and DW6 are immaterial as they have only given opinionbased evidence before the court regarding the character of the accused and nothing qua the allegations was stated by them. Moreover, counsel for the accused had also pointed out certain improvements and FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 28 of 30 fallacies in the deposition of PW2 complainant. However, the same appears to be insignificant and not sufficient to create a doubt upon the prosecution evidence.
52. Further, it is a matter of record that IO was accompanied by Ct. Charan Singh when he reached at the spot. FIR, on the other hand, was recorded by HC Subhash Chand, when a rukka was sent by IO through Ct. Charan Singh. Now, there are two PWs named as HC Subhash Chand, who have been examined by prosecution, namely PW1 and PW6. While PW1 has corroborated the prosecution case, role of PW6 in the entire incident cannot be ascertained. His deposition is also fraught with ambiguities and he has contradicted himself at several points. In view of the fact that the prosecution is unable to assign the role of PW6 HC Subhash Chand, No.7311/RB, who appears to be an unnecessary witness, prosecution is strictly warned to be careful in future. Such kind of lapse in the investigation should be taken a serious note of. For this purpose, a copy of this order be also sent to ACP concerned for intimation and necessary action.
53. Thus, in view of the above said observations and the material available on record I am of the considered view that the prosecution has proved its case beyond all reasonable doubts. The ingredients of alleged offences have been proved. The accused had gone to the house of the complainant on the intervening night of 0304.08.2003 and had outraged her modesty by pulling her arm and touching her body party and had also threatened the complainant of dire consequences while absconding from the spot. FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 29 of 30 Accused is held guilty for offence U/s 354 and 506I of IPC. Thus, accused Sushil Kumar Sharma is convicted for the said offences.
Pronounced in open court
On 30th August, 2014 (ANKITA LAL)
M.M01 Mahila Court (South),
Saket, New Delhi
FIR No. 367/2003 State Vs. Sushil Kumar Sharma PS Mehrauli Page 30 of 30