Delhi District Court
State vs Roshan Lal & Ors on 29 March, 2016
IN THE COURT OF Ms. BHAVNA KALIA: METROPOLITAN
MAGISTRATE:(MAHILA COURT)01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI
STATE V. ROSHAN LAL & ORS.
FIR NO.: 444/07
U/S: 354/323/34 IPC
PS: MEHRAULI
CASE ID : 02403R0600542007
JUDGMENT
a) Sl. No. of the case : 242/2
b) Date of commission of offence : 13.07.2007
c) Date of institution of the case : 01.09.2007
d) Name of the Complainant : Smt. Sunita Dahiya
W/o Sh. V.S. Dahiya.
e) Name & address of the
accused persons. : (1) Roshan Lal S/o
Sh. Radhey Shayam,
R/o H. No.219, Nai
Basti, Maidangarhi,
New Delhi.
(2) Chandrumal S/o
Sh. Radhey Shayam,
R/o H. No.219, Nai
Basti, Maidangarhi,
New Delhi.
(3) Asha Ram @ Asha Lal
S/o Sh. Dalle Ram.
R/o H. NO. 224, Nai
Basti, Maidangarhi,
New Delhi.
FIR No.444/07 State v. Roshan Lal & Ors. Page No. 1 of 18
(4) Deepdas S/o
Sh. Gopal Das
R/o H. No.240, Village
Maidangarhi,
New Delhi.
f) Offence complained of : 323/354/451/34 IPC
g) Offence charged for : All accused were given
notice for offence u/s 323/34
IPC. Accused Roshan Lal
and accused Chandrumal
were given notice
additionally for offence u/s
354/34 IPC
h) Plea of the accused : Pleaded not guilty.
i) Arguments heard on : 17.03.2016.
j) Date of Judgment : 29.03.2016.
k) Final Order : Convicted.
At the outset it is clarified that accused Deepdas had expired during the trial and proceedings against him had abated vide order dated 05.08.2015.
FACTS AS ALLEGED BY THE PROSECUTION:
1. It is the case of the prosecution that on 13.6.2007 on receipt of DD no. 11 at PS Mehrauli, constable Om Prakash reached house no.
791, Nai Basti, Ghari Maidan, Ghari, Delhi where he met the complainant Sunita Dhaiya who had received hurt on her hand. She was taken to AIIMS hospital and injury was stated to be simple in FIR No.444/07 State v. Roshan Lal & Ors. Page No. 2 of 18 nature caused with a sharp object. Statement of the complainant was recorded in which she stated that one water tubewell was installed in front of her house by the State/ Government but the water pressure in that was very less. With regard to the said tubewell, the complainant had had previous disputes with the accused persons. The accused persons had earlier complained that the complainant used to run the tubewell very less and they used to get very little water.
2. On 13.6.2007 she was at home with her husband. At around 1 pm when her husband was leaving to go to the Bank, they saw that the JE, AE, one worker and son of Balram MLA came to the tubewell in front of their house and thereafter proceeded to other tubewells near her house. Her husband proceeded behind them and she proceeded after him. On reaching there her husband told her to go home as their daughter Bhawana was about to reach home. Thereafter complainant came back home and stood at her gate. At that time one Asha Ram came and started abusing the complainant. She told him that she would phone her brothers to come. Then Asha Ram held her tied hair from behind and started to drag her out of the house. At that time Roshan, Chandru and Baba Deepchand/ Deepdas reached there. Asha Ram tried to hit the complainant on the head with one sharp shiny object. The complainant tried to save herself by raising her left hand and in the process received injury on her hand. Roshan tore her shirt/ kurta from behind. Chandru tried to hold her lower/ salwar. During this time, three ladies from the neighborhood namely, Savitri, Kamla and wife of Manohar Lal Sharma came and intervened and stopped the fight. All the accused persons ran from there. Her tenant Shweta called the police. Complainant was taken to AIIMS hospital and her medical was done. She stated that all the four accused persons had a fight with FIR No.444/07 State v. Roshan Lal & Ors. Page No. 3 of 18 her and outraged her modesty. Investigation was carried out. During investigation site plan was prepared, witnesses were examined and accused persons were arrested and admitted to bail. Chargesheet was filed. Accused persons were summoned. Copies of documents were supplied to them. Notice of the offences was given to the accused persons on 14.3.2013.
NOTICE:
3. Notice for offence punishable u/s 354/ 34 was given to accused Roshan Lal and Chandrumal for outraging the modesty of the complainant in furtherance of their common intention. Notice for offence punishable u/s 323/34 was given to all four accused persons for causing simple injury on the person of the complainant in furtherance of their common intention.
PROSECUTION EVIDENCE:
4. Prosecution examined 7 witnesses to prove its case.
a) PW1 was the complainant herself and she stated that the accused persons used to quarrel with her regularly for operation of the govt. tubewell situated opposite her house. On 13.6.2007, officials of the Delhi Jal Board came near the tubewell for checking the same and she and her husband accompanied them. However, she came back to her house as her daughter was about to come back home. She stood at the gate and while she was standing there accused Asha Ram reached near her house and started abusing her. She told him she would call her FIR No.444/07 State v. Roshan Lal & Ors. Page No. 4 of 18 husband and brother. When she started moving towards her house he caught hold of her hair from behind and pulled her out of the house. Other accused persons also reached there. Asha Ram who had a sharp weapon in his hand tried to hit PW1 on the head but she raised her hand and thus sustained injury on her left hand. Accused Roshan Lal tore her shirt from back side and accused Roshan Lal and Chandru put their hand under her salwar. She raised alarm and twothree persons from the neighborhood came to her assistance. The accused persons ran from the spot. Complainant's tenant Shweta called the police and she was taken to hospital. Her complainant was recorded as PW1/A. During her cross examination she denied the suggestion that there was old rivalry between herself and the accused persons.
She stated that her husband was with JE at other tubewell which was at a distance of about 1520 houses. She said she could not tell whether the distance was 20 metre or more. She stated that 1012 public persons came to the spot after hearing her alarm. She stated that Shweta also came after hearing noise. She stated that the accused persons had beaten her between her house and gate. She admitted that accused Dev Dass did not hit her and was standing outside the gate of her house. She however, said that he was present there with the accused persons. She stated that she did not hand over the torn clothes to the police and voluntarily stated that the police did not demand the same from her. She further stated that no weapon was recovered from the accused persons in her presence. She stated that house of Savitri was situated after one house from her FIR No.444/07 State v. Roshan Lal & Ors. Page No. 5 of 18 house. She denied the suggestion that she implicated the accused persons falsely in the present case as she and her husband are involved in many criminal cases. She further denied the suggestion that she sustained injuries as she slipped near the tubewell.
b) PW2 was Ms. Savitri who stated that she did not know anything about the present case and also did not know why her name was in the list of prosecution witnesses. She further stated that no police official ever made any enquiry from her. She admitted that Sunita Dhaiya was her neighbor but she did not know anything about quarrel between her and the accused persons. Witness was declared as hostile and Ld APP cross examined her. She denied the suggestion that she was interrogated by police on 13.6.2007. She denied the suggestion that she had told the police on 13.6.2007 that accused persons were hitting the complainant. She denied the suggestion that she was deliberately not disclosing the truth.
c) PW3 Ct. Om Prakash stated that on receipt of call on which DD no. 11 was recorded, he alongwith IO HC Phool Chand went to the spot where they met the complainant who had injuries on her hand. He took her to AIIMS hospital and MLC was prepared. She was fit for giving statement and when she was brought back, IO recorded her statement and prepared rukka on the basis of which FIR was registered. Accused persons were also arrested in his presence and released on bail. His statement was recorded and he was discharged.
FIR No.444/07 State v. Roshan Lal & Ors. Page No. 6 of 18 During his cross examination he stated that he did not remember due to passage of time, whether he brought the complainant back to the spot or to the PS after her medical examination. He denied the suggestion that investigation was conducted falsely.
d) PW4 Mahesh Kanta w/o M.L Sharma stated that she knew the complainant and accused persons. She stated that on 13.6.2007 the MLA concerned had to visit the tubewell situated near the house of the complainant and as she / all were called for the meeting with the MLA. She went to the tubewell around 1.30 pm. She stated that when she reached there she saw that all the four persons were quarreling with the complainant and beating her. She further stated that complainant was screaming 'bachao bachao'. She further stated that due to beatings given to her, the complainant was bleeding from her hands. She stated that apart from her there were other persons namely Kamla, Savitri etc. at the spot who saw the incident and intervened to rescue the complainant. She stated that after that all the accused persons fled from the spot. She later visited the police station. She identified all four accused persons as persons who had given beating to the complainant.
During her cross examination she stated that her house was situated in the lane next to the lane in which house of complainant was situated. She stated that the incident had happened in front of house of complainant near the tubewell. She further stated that she had gone to the tubewell for attending meeting with the MLA and she said that she did not know why the same was not mentioned in her statement u/s 161 Cr.PC.
FIR No.444/07 State v. Roshan Lal & Ors. Page No. 7 of 18 She denied that she was influenced by the complainant and was deposing at her instance.
e) PW5 Smt. Kamla stated that she knew the complainant and accused persons as all were residing in the same neighborhood. She said that she did not remember the date and time of the incident and she did not even witness the incident. She stated that she heard some commotion near the house of the complainant and when she reached there, the matter had already been sorted out. She stated that she saw that the complainant had suffered injuries and was bleeding from her hand. She stated that she did not see any of the accused persons at the spot and police did not make any inquiry from her.
During her cross examination by Ld. APP (as prosecution was of the opinion that witness was resiling from her statement) she denied the suggestion that she had seen all the accused persons at the spot beating the complainant. She further denied that police had recorded her statement. She was confronted with her statement Ex. PW5/A. On perusal of the statement it is seen that witness Kamla had stated that at around 1 pm on the said date, accused persons had quarreled with the complainant and had beaten her. On hearing the noise she and Savitri and wife of ML Sharma came out of their homes and saved the complainant from the accused persons. She had stated that complainant was bleeding from a hand injury.
f) PW6 Rajbir Singh, medical record technician from AIIMS Hospital identified the signatures and writing of Dr. Sourish Dev FIR No.444/07 State v. Roshan Lal & Ors. Page No. 8 of 18 Barma on MLC Ex. PW6/A with regard to the complainant. He admitted that there was cutting and rewriting on the nature of injuries and kind of weapon used to inflict such injury.
MLC perused in which it is stated that date and time of arrival of complainant at hospital was 13.6.2007 at 2.30 pm and on examination, it was found that left hand of the complainant had simple injury caused by sharp object.
g) PW7 HC Phool Chand stated that on 13.6.2007, after receipt of DD no. 11, he alongwith Ct. Om Prakash reached the spot and met the complainant. She had sustained injury on her left hand and she was taken to AIIMS hospital by Ct. Om Prakash. After sometime he also reached AIIMS hospital and was handed over the MLC. He recorded statement of the complainant and prepared rukka Ex. PW7/A and got FIR registered through Ct. Om Prakash. They reached at the spot, prepared site plan Ex. PW7/B at instance of the complainant. He arrested accused Roshan Lal, Chandrumal and Asha Ram on the same day and accused Deepdas on the next day. He recorded statement of witness and after completing investigation, filed chargeheet.
During cross examination he admitted that he had not recovered any torn clothes from the complainant or any pointed object which was allegedly used by accused persons.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
5. Incriminating evidence was put to the accused persons and they FIR No.444/07 State v. Roshan Lal & Ors. Page No. 9 of 18 denied the happening of the incident. They stated that the complainant and her husband had filed a false case against them due to personal grudge and caste differences. They further stated that the entire complainant was false as the complainant and her husband had forcefully occupied a government tubewell installed by DJB due to which water supply to them was affected. They stated that at the time of the incident they were doing an inquiry from DJB officials and were not present at the spot.
DEFENCE EVIDENCE:
6. Accused persons examined three witness in their defence.
I. DW1 Gyan Chand stated that he knew the complainant as they stayed in the same locality. He stated that the local residents had given an application to DJB as there was no supply of water in their locality and on the said date one MLA had visited their locality. He stated that the MLA instructed complainant to release the unauthorised possession of tubewell and informed the local residents that he would be deputing a government official for taking charge of the said tubewell. He stated that at that time none of the accused persons were present at the spot and no incident happened as stated by complainant.
During cross examination he stated that MLA had visited their locality in morning time and he had attended meeting with MLA and thereafter, after seeing off the MLA, he had gone back to his house. He further stated that complainant had also attended meeting with MLA. The meeting lasted for 3045 mins. He FIR No.444/07 State v. Roshan Lal & Ors. Page No. 10 of 18 admitted that he could not say if any of the accused persons had gone to house of the complainant at around 12.00 pm and misbehaved and quarreled with her.
II. DW2 Shiv Dayal stated that on the said date one JE and son of local MLA had visited their locality with regard to sorting out the dispute of the said tubewell and they assured the local residents that they would provide a separate water pipeline to other residents. After that the complainant and her husband started abusing the accused persons and in the meantime JE and Son of MLA left. He stated that he also returned to his house and later came to know that the complainant and her husband had falsely implicated the accused persons. He also stated that none of the accused persons were present at the spot when JE had arrived at the spot. He stated that accused persons had been falsely implicated.
During cross examination he denied that accused persons were present at meeting with JE and son of MLA. According to him, meeting lasted for 20 mins. He stated that complainant did not participate in the meeting. He denied the suggestion that the incident had happened. He further stated that police had visited their locality around 45 pm on the said day.
III. DW3 stated that on the said date local MLA had visited their area and directed complainant to provide water to all from the tuewell. He further stated that upon this, the complainant became aggressive and told that if anyone stands against her, she would falsely implicate him in a case. He stated that at that time FIR No.444/07 State v. Roshan Lal & Ors. Page No. 11 of 18 accused persons were not present at the spot and later he came to know that they had been falsely implicated in the present case.
During his cross examination he stated that MLA had visited their locality at about 10.30 am. He stated that complainant attended the meeting and she was personally directed to provide water to local residents. The MLA left after half an hour and he came back to his house. He said that he could not say if accused persons went to the house of the complainant and whether they misbehaved or quarreled with her.
LEGAL PROVISIONS TO BE SEEN:
7. Since the accused persons are presumed to be innocent till proven guilty beyond reasonable doubt, heavy burden lies on the prosecution. Accused persons have been given notice under section 323 IPC and 354 IPC r/w section 34 IPC.
8. For the offence u/s 323 IPC the prosecution must prove that the accused persons committed an act with the intention to cause hurt (Hurt is defined in section 319IPC), or with the knowledge that hurt is likely to be caused to any person and thus hurt is caused and the same is not covered under section 334 IPC.
9. For the offence u/s 354 IPC the prosecution must prove that accused persons assaulted or used criminal force to any woman/ complainant intending to or knowing that it is likely, that modesty of the complainant will be outraged.
FIR No.444/07 State v. Roshan Lal & Ors. Page No. 12 of 18
10. From the evidence on record it needs to be seen whether the prosecution has been able to prove the offence u/s 323 IPC and 354 IPC. But it first needs to be seen whether the facts alleged have been proved by the evidence brought on record.
RELEVANT FACTS PROVED / ESTABLISHED ON APPRECIATION OF EVIDENCE:
11. It is not disputed that on 13.6.2007 on receipt of DD no. 11 at PS Mehrauli, constable Om Prakash reached house no. 791, Nai Basti, Ghari Maidan, Ghari, Delhi where he met the complainant Sunita Dhaiya who had received hurt on her hand. It is not disputed that complainant was taken to AIIMS hospital and on examination, injury was stated to be simple in nature caused with a sharp object (as proved by MLC). It is not disputed that a water tubewell was situated in front of house of complainant and there was some trouble with flow of water from that tubewell. From the evidence of prosecution and defence witnesses it is established that some officials from DJB and MLA/ son of MLA had come to that tubewell on the day of the incident during day time.
12. The main issue is whether the accused persons were present at the spot and secondly whether they had beaten the complainant and outraged her modesty.
13. PW1, on oath, has reiterated the contents of her complaint and sustained the same during cross examination. Rather, during cross examination no question was put to her regarding the presence or FIR No.444/07 State v. Roshan Lal & Ors. Page No. 13 of 18 absence of the accused persons during the incident. The only suggestion put to her was that she sustained injury as she slipped near the tubewell which she denied. Further, nothing has been brought on record to show that the complainant slipped near the tubewell. In any case, in the normal course of events, when a person slips, injury is rarely sustained on hand and it is mostly sustained on the back and limbs. There is nothing to show that if the complainant slipped near the tubewell, what was the sharp object at the tubewell that hit her because of which she sustained injury. This suggestion in defence is not sustained as there is no sufficient proof for the same.
14. PW1 further stated that accused Roshan Lal tore her shirt from the back side and accused Roshan and Chandru put their hand under her salwar. Even though she admitted that she did not hand over any torn clothes to the police but she has explained that the police did not ask for the same. No suggestion has been put to her to deny the incident that the accused persons did not hit her or did not outrage her modesty. Thus the statement of complainant, which has been consistent is reliable and taken to be true.
15. Another important witness is PW4, who is the eye witness to the incident. She saw the accused persons beating the complainant and she herself intervened to save her and during this time the accused persons fled. She heard cries of 'bachao bachao' from the complainant.
She also saw that the complainant had sustained injury on her hands. There are minor discrepancies in the statement of PW1 and PW4 but the same do not affect the substance of the accusations/ happening of the incident. One discrepancy is that PW1 has stated that JE from DJB and son of MLA had come for supervision of tubewells. PW4 has stated FIR No.444/07 State v. Roshan Lal & Ors. Page No. 14 of 18 that there was a meeting of these officials. The fact remains that these officials were present at the spot for some meeting and after they left the incident happened. Other discrepancy is that PW1 has stated that the incident happened between her gate and house while PW4 stated that the same had happened outside the gate. Again, this is a minor discrepancy which does not prove that the incident did not happen. No suggestion has been put to PW4 to deny the happening of the incident or that she was stating falsely. There is nothing brought forward in her crossexamination to disbelieve her testimony. Her testimony is therefore, reliable and proved.
16. PW5 also seemed hostile but has admitted that she had heard some commotion outside the house of the complainant and saw that she had sustained injuries on her hand. This fact is corroborated by the MLC. In her statement u/s 161 Cr.PC she had stated that she had witnessed the incident but later under oath she denied the same. Thus, even believing whatever she stated on oath, it is established that she did hear some commotion outside the house of the complainant and saw her injuries.
17. In their testimony, the defence witnesses have also stated that there was a meeting of JE, DJB and MLA with local residents. They all stated that the complainant was present in the meeting but the accused persons were not so present. This defence, that the accused persons were not present at the meeting was never put in cross examination of prosecution witnesses. Rather, in their statement u/s 313 Cr.P.C. accused persons have stated that at the time of the incident, they were doing inquiry from DJB officials and were not present at spot which implies that they were present in the meeting. Thus the evidence of FIR No.444/07 State v. Roshan Lal & Ors. Page No. 15 of 18 defence witnesses is inconsistent with the statement of the accused persons u/s 313 Cr.P.C. Further all the defence witnesses stated that they could not say whether the incident happened or not as they had left the spot after the meeting.
DECISION AND REASONS:
18. The accused persons, namely Asha Ram, Chandrumal and Roshan Lal are convicted for offence u/s 323 IPC. From the statement of witnesses and appreciation of evidence it is evident that the accused persons were present at the spot and hit the complainant because of which she sustained injury on her left hand. The fact that no weapon was recovered from the accused persons is irrelevant as after the said quarrel they had fled from the spot and efforts might not have been made by the police to recover the weapon. The same is laxity on part of investigation but does not hamper the prosecution case. From the above discussion it is proved that the complainant and accused persons were present at the spot and a quarel took place because of which complainant sustained injuries. There is nothing to show that the accused persons were provoked. They voluntarily caused hurt to the complainant with intention to cause the same without any provocation.
19. The accused persons namely, Roshan Lal and Chandrumal are further convicted for offence u/s 354 IPC for outraging the modesty of the complainant. To prove offence u/s 354 IPC the prosecution must prove that accused persons assaulted or used criminal force to any woman/ complainant intending to or knowing that it is likely, that modesty of the complainant will be outraged. The ultimate test for ascertaining whether modesty has been outraged is whether the action FIR No.444/07 State v. Roshan Lal & Ors. Page No. 16 of 18 of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman 1. It is established that they quarelled with the complainant. The complainant has stated that Asha Ram tore her kurta. This has not been stated by any other witness and neither were any torn clothes recovered by the police, still this statement on oath of the complainant has gone unrebutted. For any other person who saw the incident, it might have appeared to be a quarrel, but for the complainant it might have seemed more than just a quarrel. The accused persons hit her and accused Roshan Lal tore her kurta and accused Roshan Lal and Chandrumal touched her salwar from beneath. Whether the same actually outraged the modesty of the complainant is irrelevant. The complainant felt so, that is enough. If the accused persons simply wanted to hit her, they could have done so and left. An offence of indecent assault on a woman cannot be complete unless there is an intention or knowledge that a woman's modesty will be outraged. Knowledge and intention are essentially the things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed2. The act must be committed with the intention of outraging the modesty of the woman or knowing that it is likely to do so. The fact that after hitting they grabbed at the clothes of the complainant, proves that they had the intention and also the requisite knowledge, that their act would lead to consequence of outraging her modesty.
20. To establish common intention u/s 34 IPC, the prosecution has to establish by evidence, that there was a plan or meeting of mind of all 1 Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. (1995) 6 SCC 194 2 Vidyadharan v. State of Kerela, (2004) Cr.LJ 605 (SC) FIR No.444/07 State v. Roshan Lal & Ors. Page No. 17 of 18 the accused persons to commit the offence for which they are charged, be it pre arranged or on the spur of the moment, but it must necessarily be before the commission of the crime3. In the present case it is established that there was meeting of mind of the accused persons. Accused Asha Ram came first, abused the complainant and hit her. Other accused persons came right after and quarreled with the complainant. It shows that all the accused persons were present at the spot with the intention to quarrel with the complainant and they executed their intention. No evidence has been brought forward to dispute the same. No explanation has been given as to why accused persons were present at the spot together. Since no substantial defence has been taken and evidence of prosecution witness is reliable and consistent, all three accused persons, namely, Roshan Lal, Chandrumal and Asha Ram are convicted for offence u/s 323/34 IPC and accused Roshan Lal and Chandruman are further convicted for offence u/s 354/34 IPC.
Pronounced in open court (BHAVNA KALIA)
on 29th of March, 2016 M.M./(Mahila Court)01/South District
New Delhi/29.03.2016
3 Harbans Kaur v. State of Haryana, (2005) Cr.LJ 2199 (SC) FIR No.444/07 State v. Roshan Lal & Ors. Page No. 18 of 18