Delhi District Court
State vs . Vinay on 14 December, 2010
IN THE COURT OF MS. SHUCHI LALER,
MM (MAHILA COURTS, KKD COURT: DELHI
FIR NO. 439/05
P.S. KHAJURI KHAS
U/SEC. 354 IPC
STATE VS. VINAY
1. Date of commission of offence: 20102005
2. Name of the complainant : Kumari Priyanka
d/o Sh. Prem Narayan
3. Name of the accused persons : Vinay s/o Ved Prakash
their parentage and address r/o C183, Gali No. 15,
Khajuri Khas, Delhi.
4. Offence complained of : 354 IPC
5. The date of order : 14122010
6. The final order : 14122010
THE BRIEF REASONS FOR THE DECISION :
1. The facts of the case have been disclosed in the statement made by the complainant Kumari Priyanka d/o Sh. Prem Narayan r/o C183, Gali No. FIR NO. 439/05 P......... 1/23 15, Khajuri Khas, Delhi aged 15 years wherein it is stated that she is residing at the above said address alongwith her family. It has been alleged that on 20102005, her mother had gone to the house of her sister and the accused, who is residing in front of their house, opened the door of the house of the complainant and said to the complainant that "TU MERE LIYE VRAT KAREGI" and also asked the complainant to give her phone number. Accused did not allow the complainant to close the door and forcibly caught hold of the hand of the complainant. The complainant raised alarm and accused fled away from the spot.
2. After completion of investigation, chargesheet was filed u/s 354 IPC. Cognizance of the aforesaid offence was taken by my Ld. Predecessor. Accused was summoned and documents were supplied to him after compliance of the provision u/s 205 Cr.P.C. was made, he was heard on the point of charge. Vide order dated 05092008, charge was framed against the accused under the provisions of section 354 IPC by my Ld. FIR NO. 439/05 P......... 2/23 Predecessor. Subsequent thereto witnesses were summoned as matter was fixed for PE.
3. DO SI Ramanand appeared as PW1 and deposed that he recorded FIR No. 439/05 on the basis of rukka sent to him by ASI Ram Kishore, which is Ex.PW1/A bearing his signatures at pointA. After registration of case, he made endorsement at pointX on rukka, which is Ex.PW1/B. Further examination in chief of PW1 was deferred for production of original DD register pertaining to DD no. 23A dated 20102005. On 22012010 SI Ramanand further examination in chief (wrongly examined as PW2) was conducted wherein he deposed that on 20102005, he was posted as DO in PS Khajuri Khas from 5.00 p.m. to 1 night. At about 7.50 p.m. wireless operator gave him information regarding quarrel at C183, Khajuri Khas. He recorded the same in rojnamcha register at DD No. 23A, which is in his handwriting, copy of which is Ex.PW1/A (OSR). Copy of the DD entry No. 23A was handed over to ASI Ram Kishore through Ct. Ajay.
FIR NO. 439/05 P......... 3/23 PW1 was cross examined by Ld. Defense Counsel and in his cross examination PW1, deposed that Ct. Ajay came to police station at about 9.20 p.m. After handing over the Rukka, Ct. Ajay returned back. FIR was registered at 9.45 p.m. The Rukka was sent through Ct. Ajay to the spot. It took half an hour to record the FIR and thereafter Ct. Ajay returned back to the spot at about 10.15 p.m. PW1 denied the suggestion that the said FIR was lodged as an after thought.
4. The Complainant Ms. Priyanka appeared as PW2 and deposed that on 20 102005 at about 7.30 p.m. her mother had gone to the house of her sister and she was present alone in her house. At that time, Accused Vinay came to her house, she opened the gate and Accused asked her that "MERE LIYE TU VRAT KAREGI". He demanded her phone number and tried to open the gate forcibly and caught her hand but she pushed the gate, closed it and she screamed, thereafter Accused fled away from the spot. One tenant living on the upper floor telephoned the police when she FIR NO. 439/05 P......... 4/23 screamed and he came to know about the incident. Her mother was called. Police reached the spot and thereafter the matter was reported to the police, which is Ex.PW2/A bearing her signature at pointA. PW2 deposed that accused is living in her locality. In her cross examination by Ld. Defense Counsel, PW2 deposed that 8 rooms are existing in her house, four on the ground and four on the first floor. Her family resides on the ground floor and tenants are residing on the first floor. At the time of incident, altogether 6 families were residing at the first floor on tenancy. Her school name is Deepa Rai but at her house, family members called her Priyanka. PW2 deposed that she does not remember whether she has stated this fact to the police. One person from the first floor came down stairs after hearing her scream and he asked her that why she screamed. PW3 admitted that the female members were also present there at her tenanted portion and the ladies residing upstairs, also came down after few minutes. Her mother was called by the tenant. PW2 stated that FIR NO. 439/05 P......... 5/23 the police officials did not interrogate her tenant who called the police. PW2 further deposed that she does not know whether any other statement was recorded by the police. People had gathered outside her house after the incident when the police came. She had not seen whether police has made enquiries from the public persons or not as she went inside after given her statement. PW2 denied the suggestion that police enquired them the persons who had gathered at the spot and they did not support her version. PW2 also denied the suggestion that no such incident occurred and that is why no public person supported her version. PW2 further denied the suggestion that police did not interrogate the tenant as they did not support her version. PW2 denied the suggestion that false case was filed by her due to previous enmity and no such incident occurred and she is deposing falsely.
5. The mother of the complainant Smt. Meena Rai appeared as PW3 and deposed that in the month of October, 2005, she had gone to the house of FIR NO. 439/05 P......... 6/23 her daughter Rekha Rai, who is living in EBlock, Khajuri Khas to see her as she was not keeping well. Hardly 1520 minutes had passed and she received the telephonic call from one tenant living on upper floor in her premises. She was told on phone that her daugher Priyanka was crying. She reached the house immediately. Priyanka told her that Accused Vinay had come to their house and he tried to open the gate and asked her daughter to keep the fast for him. He also demanded the telephone number of her daughter. When her daughter tried to push the gate for closing the same, the Accused caught the hand of her daughter. When she reached house her daughter was inside the house and was crying. She telephone the police on number 100. Police came there. Police recorded her statement and of her daughter. In her cross examination PW3 deposed that police came at her house about 8 / 8.30 p.m. There were 4 tenants in her house. One of them was at the first floor. His name was Pankaj. Her daughter knew about the tenant Pankaj by FIR NO. 439/05 P......... 7/23 name. He called the police. Statement of her daughter was recorded in her presence. At that time her husband was also there. No public persons had gathered. Neither the ladies tenants were enquired. PW3 denied the suggestion that police did not interrogate the tenant as no such incident occurred so none of the tenants or public witness came forward to depose against the accused. PW3 denied the suggestion that false case was lodged due to previous enmity. PW3 also denied the suggestion that no such incident occurred and she is deposing falsely.
6. ASI Ram Kishore appeared as PW4 and deposed that on 20102005, he was posted with PS Khajurikhas. On that day on receiving DD No 23A, he along with Ct. Ajay reached at Gali No. 15, Khajurikhas C183. There they met with Priyanka and he recorded her statement in presence of her parents, which is Ex. PW2/A bears his signature at point B. He made endorsement on the Rukka Ex. PW4/A which bears his signature at point C and handed over the same to Ct. Ajay for the registration of the case at FIR NO. 439/05 P......... 8/23 about 9:20 p.m. In the meantime, he prepared site plan Ex. PW4/B which bears his signature at point A. After some time, Ct Ajay came back and handed over the copy of FIR and Rukka to him. Accused Vinay was arrested in the present case from his house in the same Gali. Arrest Memo is Ex.PW4/C which bears his signature at point A. Personal Search Ex. PW4/B which bears his signature at point A. He recorded statement of witnesses after completion of investigation. He prepared Challan. In his cross examination, PW4 deposed that he does not remember the time when he got the information about the incident. They reached the spot after 1020 minutes but he does not remember the time. PW4 admitted that the locality in which the complainant is residing is a thickly populated area. PW4 stated that he had not made any eye witness except the complainant and her mother. He stated that he does not remember whether there were 56 families in the house of the complainant. PW4 also admitted that except these interesting witness no other witness was FIR NO. 439/05 P......... 9/23 interrogated by him. PW4 denied the suggestion that no such incident took place therefore no independent witness was found by him except these interesting witnesses. PW4 further denied the suggestion that all the proceedings was conducted at PS at the instance of complainant and her parents. PW4 also denied the suggestion that the site plan was prepared at the instance of complainant and he is deposing falsely on oath.
7. HC Ajay Kumar appeared as PW5 and deposed that on 20102005, he was posted as Ct. in PS Khajuri Khas. On the aforesaid date, he alongwith ASI Ram Kishore Tyagi on receipt of DD NO. 23A reached at the H. No. C183, Gali No. 15, Khajoori Khas, Delhi. At the aforesaid place, Complainant Kumari Priyanka, her father Prem Narayan and her mother Meena met them. ASI Ram Kishore recorded the statement of Kumari Priyanka and prepared rukka and handed over to him for registration of FIR. He got FIR registered and came back at the spot. ASI Ram Kishore prepared site plan Ex.PW4/B at the instance of the Complainant Priyanka FIR NO. 439/05 P......... 10/23 and on the instance of the Complainant Priyanka, accused Vinay present in the court was arrested vide Ex.PW4/C and personal search memo vide Ex.PW4/D bearing his signature at pointB. In his cross examination, PW5 deposed that he alongwith ASI Ram Kishore reached at the spot at 7.45 p.m. He cannot tell, who was living in neighboring house of the complainant. PW5 denied the suggestion that whole proceedings of the investigation was done at police station at the instance of the complainant and her mother.
8. Subsequent to completion of evidence, statement of accused was recorded in which accused pleaded innocence and claimed to have been falsely implicated in this case. The accused has led D.E.
9. Sh. Pramod Kumar Kashyap appeared as DW1 and deposed that on 20 102005 at about 7.30 p.m. some quarrel took place between accused parents and complainant on throwing garbage in the drainage (naali). Hearing the noise, he also reached at the spot, some persons had gathered FIR NO. 439/05 P......... 11/23 at the spot. The complainant and her mother threatened the accused and his family members to implicate them in a false case. After passing 10 - 15 minutes a Police Gypsy reached at the spot. He and some other persons told the police that the accused has no role in this incident but police officials took the accused and complainant and her mother to the police station. He alongwith Gupta Ji, Sardar Ji and some other persons reached the police station but the police officials did not listen them on the instance of complainant and her family members due to the enmity. Previously also around 1530 days prior to the present incident, a quarrel took place between the complainant's family members and accused's family members. DW1 was cross examined by Ld. APP for State, in his cross examination, DW1 deposed that he has visited terms with the accused. They reside in the same gali. DW1 admitted that Gupta Ji and Sardar Ji are also having good relations with them. DW1 also admitted that both of them also reside in the same gali. He stated that he had not FIR NO. 439/05 P......... 12/23 reported the matter to higher police officials when his version was not listened by the local police. DW1 stated that he went on foot to the police station alongwith 78 other neighbourers. 3040 persons assembled at the time of the incident. He had not made any complaint to any other higher police officers regarding the incident.
10.Sh. Vijay Kumar appeared as DW2 and deposed that he used to sell Daal Chawal on bicycle. On 20102005 at about 7.00 / 7.15 p.m. He was passing from Gali no. 15 near the home of Ved Prakash Saini in the meantime, he saw that some quarrel took place between accused parents and complainant on throwing garbage in the drainage (naali). The complainant and her mother threatened the accused and his family members to implicate them in a false case. The complainant call on 100 number. After passing of 10 - 15 minutes a Police Gypsy reached on the spot. Some other persons also gathered on the spot. He and some other persons told the police that the accused has no role in this incident but FIR NO. 439/05 P......... 13/23 police officials took the accused and complainant and her mother to the police station. He alongwith Pramod, Pandit Ji, Gupta Ji and some other persons also reached the police station but the police officials did not listen them on the instance of complainant and her family members due to the enmity. Previously also around 2025 days prior to the present incident, a quarrel took place between the complainant's family members and accused's family members on the issue of throwing garbage in drainage (naali). DW2 was cross examined by Ld. APP for State and in his cross examination, DW2 deposed that he has visiting terms with the accused. DW2 admitted that Pramod, Pandit Ji, Gupta Ji are also having good relations with them. DW2 deposed that he has come to depose on his own will and nobody compelled him to depose. He stated that he had not made any complaint to any other higher police officers regarding the incident when the police did not listen his version. He came to know about the present case of the accused from other persons and neighborers.
FIR NO. 439/05 P......... 14/23 DW2 admitted that he had not seen anyone throwing garbage in the drainage on 20102005. DW2 denied the suggestion that he is depositing falsely on oath.
11.Sh. Devender Tyagi appeared as DW3 and deposed that he is doing the business of shirt button at Khajuri Khas. He stated that he knows the accused and his family members as his daughter is residing in the gali of the accused as a neighbour. On 20102005 at about 7.00 p.m. he was going to the house of his daughter at Gali no. 15. When he reached in front of his daughter's house, he heard the noise and saw that some quarrel took place between accused parents and complainant on throwing garbage in the drainage (naali). He also know the complainant and her family members very well. Some other persons had also gathered at the spot. The complainant and her mother threatened the accused and his family members to implicate them in a false case. After 10 - 15 minutes a Police Gypsy reached at the spot and he and some other persons told the FIR NO. 439/05 P......... 15/23 police that the accused has no role in this incident but police officials took the accused and complainant and her mother to the police station. He alongwith Pandit Ji, Gupta Ji and some other persons had also reached the police station but the police officials did not listen to them on the instance of complainant and her family members due to the enmity. DW3 was cross examined by Ld. APP for State and in his cross examination DW3 deposed that he is residing in the same locality. He has good relations with the accused. He came to know about the case 45 days after the incident. He had not made any complaint regarding the police to other higher authority when they didn't listen to them. DW3 deposed that he has come here to depose on his own will. DW3 stated that he has not seen, who had thrown the garbage in the drain. DW3 denied the suggestion that he is deposing falsely on oath.
12.Sh. Harpal Singh appeared as DW4 and deposed that he is retired from CRPF. He stated that he knows the accused and his family members. He FIR NO. 439/05 P......... 16/23 does not know the date, however, the incident took place in October, 2005. At about 7.00 p.m. he was going to take the milk from the market. He heard the noise of quarrel in Gali no. 15 and reached at the spot and saw that some quarrel took place between accused parents and complainant on throwing garbage in the drainage (naali). He also know the complainant and her family members very well. Some other persons also gathered at the spot. The complainant and her mother threatened the accused and his family members to implicate them in a false case. After 10 - 15 minutes a Police Gypsy reached at the spot. Police officials took the accused and complainant and her mother to the police station. He alongwith Pradmod, Tyagi Ji, Vijay and some other persons also reached the police station and said that the accused is innocent but the police officials did not listen to them on the instance of complainant and her family members due to the enmity. DW4 was cross examined by Ld. APP for State and in his cross examination DW4 deposed that he is residing FIR NO. 439/05 P......... 17/23 in the same locality and he has good visiting terms with the accused. He stated that the house of complianant is in front of the house of the accused. He stated that the threat was extended at that time by the mother of complainant and she was stating that "AAPKO FASWA DENGE". He deposed that he had not seen anybody throwing garbage in the gali. 24 police persons came at the spot and he had seen them in the gali on foot. He stated that he had also not made any complaint against the police to any other higher authority as they didn't listen to him.
13.Ld. Defence Counsel argued that the prosecution has not been able to discharge the onus to prove the prosecution case. It was claimed that the accused has been falsely implicated and the accused deserve to be acquitted. On the other hand Ld. APP controverted the arguments and claimed that prosecution has duly discharged onus.
14.I have heard the submissions and have gone through the record. I am not in agreement with the submissions made by Ld. APP that the prosecution FIR NO. 439/05 P......... 18/23 has been able to discharge its onus completely and the case is proved beyond reasonable doubts.
The accused has been charged of an offence punishable U/S 354 I.P.C. The essential ingredients of offence U/S 354 IPC are: a. That the assault must be on a woman.
b. That the accused must have used criminal force on her. c. That the criminal force must have been used on the woman intending thereby to outrage her modesty.
The culpable intention of the accused is the crux of the matter. The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman (Ms. Roopan Bajaj Deol and another Vs. K. P. S. Gill and another, 1995 (6) SCC 194; Ram Kripal Vs. State of Madhya Pradesh, 2008 (1) SCC (Cri)
674. The essence of the offence is the intention on the part of the accused to outrage the modesty of a woman. Mere assault on a woman or FIR NO. 439/05 P......... 19/23 causing hurt to a woman cannot constitute an offence u/s 354 of IPC. The Acts attributed to the accused must be accompanied by intention to outrage the modesty of a woman. The Acts attributed to the accused must have some special significance or connotation in respect of the woman qua a woman. (Reliance in this regard is placed on the judgment titled as Pedda Geliche Divasekhar Reddy Vs. State of AP, 2000 (3) RCR (Crl.) 341). Even in the case titled as Vashudevan Vs. State of Kerala, 2006 (3), RCR (Crl.) 584 the Hon'ble Kerala High Court has observed that "It is true that assault or criminal force to the woman is one of the essential pre conditions for applicability of section 354 IPC but the same has to be with the intend to outrage her modesty or knowing to be likely that he will thereby outrage her modesty."
In the case the allegation against the accused is that he tried to open the gate forcibly and caught the hand of the complainant. The prosecution could not establish the culpable intention on the part of the FIR NO. 439/05 P......... 20/23 accused as it is nowhere been disclosed that the accused had any intention to affront the dignity and the decency of the victim. On the other hand, a plain reading of the allegations made by the complainant would go to show that the accused had caught hold of the hand of the complainant for the purpose of preventing the complainant from closing the door. There is not even a remote suggestion that the accused had an intention to offend the modesty of the woman or slight her feminine decency. The essential ingredient of the offence i.e. intending to outrage or knowing it to be likely that he will thereby outrage her modesty is completely missing in the present case.
Further when public persons were available and still they have not been joined in the investigation and no notice has been served upon in case of refusal, the prosecution case has to be scrutinized stringently. In the case of Prem Singh Vs. State 1996 CRI LJ 3604 (Delhi), it has been observed that in case of failure to join independent witness benefit of doubt FIR NO. 439/05 P......... 21/23 must be given to the accused. In the present case the complainant has deposed that in her house six other families are also residing. The complainant ha also stated that the ladies residing on the first floor come to her house after few minutes. From the testimony of the complainant, it is apparent that many public persons were present at the spot but, no effort has been made by the prosecution to examine any of them so as to corroborate version of the complainant.
Furthermore the absence of material witness, the tenant proved to be a death knell to the prosecution story as he could have corroborated the version of the complainant. It be observed that the complainant has deposed when she raised alarm, the tenant residing on the first floor telephoned the police & he came to know about the incident. The mother of the complainant has claimed that she had made a call to the police. No effort has been made by the prosecution to examine the independent witness the said tenant.
FIR NO. 439/05 P......... 22/23 Keeping in view the foregoing reasons & discussion, the offence for which the accused has been charged, has not been duly established. In such circumstances, the benefit is to be given to the accused and the accused is accordingly acquitted. Bail Bond of accused shall remain in force and surety of accused shall not be discharged for a period of 6 months in view of section 437A Cr.P.C.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 14122010 MM/MAHILA COURTS FIR NO. 439/05 P......... 23/23