Delhi District Court
St. vs . Arun Kumar on 4 July, 2014
1
IN THE COURT OF MS. MONA TARDI KERKETTA:
MM (MAHILA COURT): THC: DELHI
FIR NO. 70/13
P.S. Subzi Mandi
U/SEC. 354/354A/509 IPC
ST. VS. Arun Kumar
UID No.0304422013
1. Date of commission of : 21.04.2013
offence.
2. Name of the complainant : Mrs. Jyoti Shakya
W/o Naresh shakya
3. Name of the accused, his : Arun Kumar S/o Late Sh. Shyam Lal
parentage and address. R/o 1857/5, Gali Ahiram, Malka Ganj,
Subzi Mandi, Delhi
4. Offence complained of : 354/354A/509/ IPC
5. Plea of accused : Pleaded not Guilty
6. Final Order : Convicted
5. The date of such order : 04.07.2014
Counsel for the Parties
For the State : Sh. A.B. Asthana
For the Accused : Sh. Pankaj Sharma, LAC
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
2
THE BRIEF REASONS FOR THE DECISION :
1. The facts of the case as have been disclosed in the statement made by
complainant Smt. Jyoti Shakya W/o Sh. Naresh Shakya R/o 1857/1, Gali Ahiram, Malka Ganj, Delhi, wherein it is stated that accused is known to her being neighbour, who is in the habit to pass obscene comments and gesture. It is further stated that on 20.04.2013 at around 4.00 pm, she was standing outside her house then accused came there and put off his nicker and made obscene gesture towards her and ran away. She has further stated that on the next day i.e. on 21.04.2013 at around 10.45 am, while she along her daughter baby Divya Nita was going to purchase to some articles then suddenly accused came there and put his hand on her posterior , pressed and started titillating the same. He also caught her hand and misbehaved with her. Thereafter on hearing her screams, one Sh. Ramji, Press wala came there and caught the accused. . Her brother Ravi Kant also reached there and made a call at 100 number. On receiving information, police official reached at the spot and recorded the complaint of the complainant and registered a case under section 354/354A/509 IPC and investigated into the matter.
2. After completion of investigation, chargesheet was filed u/s 354/354A/509 IPC. Cognizance of the aforesaid offence was taken by Ld. Predecessor and accused was summoned to face the trial allegedly committed by him. Documents were supplied to him in compliance of provision given u/s 205 Cr.P.C., accused was heard on the point of charge and vide order dated 03072013, charge u/s 354/354A/509 IPC was framed against the accused, to which he pleaded not guilty and claimed trial. Subsequent thereto prosecution witnesses were summoned as matter was fixed for Prosecution Evidence.
3. In order to prove its case, the prosecution examined the following witnesses:
(i) Complainant Ms. Jyoti Shakya appeared as PW1 and proved her statement Ex PW1/A, Site Plan Ex PW1/B and arrest memo Ex PW1/C, FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
3(ii) Sh. Ravi Kant, brother of complainant, appeared as PW2,
(iii) ASI Anil Kumar, Duty Officer, appeared as PW3 and proved FIR Ex PW3/A, endorsement Ex PW3/B and certificate under section 65 B, Indian Evidence Act Ex PW3/A1,
(iv) Ct. Om Prakash appeared as PW4 and proved personal search memo Ex PW4/A,
(v) Sh. Bishambhar Dayal, Father of the complainant, appeared as PW5,
(vi) SI Abhijit Kumar appeared as PW6 and proved D.D. No. 21A vide Ex PW6/A and Tehrir Ex PW6/B,
(vii) Sh. Ramji, Presswala, appeared as PW7,
(viii) WSI Beena/IO appeared as PW7, During trial, accused admitted proceedings recorded under section 164 CrPC, which are Ex P1 & P2
4. Subsequent thereto Prosecution Evidence was closed, statement of accused was recorded under section 313 CrPC, wherein entire incriminating circumstances appearing on record were put to accused, to which he denied as false and incorrect and stated that he has been falsely implicated by the complainant on his refusal to pay money to her father however he did not prefer to lead evidence in his defence. Subsequent thereto matter was fixed for final arguments.
5. During the course of final arguments, Ld. APP for the State submitted that prosecution has been able to discharge its onus and has proved the guilt of accused beyond reasonable doubt. It was also submitted that all material witnesses have supported each other on material particulars and during cross examination nothing could be extracted , which could prove the innocence of accused. It was also submitted that no evidence to prove false implication by the complainant has been led by the accused, accused was apprehended at the spot and no malafide motive on the part of the complainant has been proved with regard to claim of his implication in false case. On the other hand, Ld. Defence Counsel submitted that the prosecution has not been unable prove the guilt of accused beyond reasonable doubt.
6. The court has heard the arguments of both the sides and perused entire record FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
4including testimonies of the witnesses. Before appreciating evidence, let's first discuss relevant legal provisions given U/s 354/354A/509 IPC . Section 354A IPC provides punishment for sexual harassment of the nature of unwelcome physical contact and advances or a demand or request for sexual favours. Section 354 IPC makes penal the assault or use of criminal force on a women to outrage her modesty. The essential ingredients of offence under section 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.
Section 509 IPC requires (1) Intention to insult the modesty of a woman (2) The insult must be caused (I) by uttering any word or making any sound or gestures, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman or (ii) by intruding upon the privacy of such woman.
7. Let's now appreciate the evidence available on record. For the purpose of convenience, allegations with regard to section 354/354A IPC shall be discussed together. In the present case , the complainant has categorically deposed that on 21.04.2013 at around 10.45 pm, while she along with her daughter baby Divya Nita was going to purchase some articles then suddenly accused came there and placed his hands on her posterior, pressed it and started titillating it, he also held her hands and misbehaved with her. She shouted for help then Ramji Press wala, who was ironing clothes nearby, came and caught the accused. Thereafter her brother Ravi Kant also reached there and made a call at 100 number. On receiving information, police reached there and recorded her complaint Ex PW1/A. (7.1) PW2 Sh. Ravi Kant, Brother of the complainant, has deposed on the same line. He has deposed that on 21.04.2013 at around 10.45 am , he was standing in the balcony of his house. Suddenly he noticed his sister/complainant standing near Presswala in the street , at that time accused came there, pressed her posterior and misbehaved with her . He further deposed that on hearing the alarm raised by his sister, he reached there and made a call at 100 number, police official came at the FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
5spot, enquired into the matter and recorded the complaint of his sister. (7.2) PW 7 Sh. Ramji Lal has deposed that at the time of incident, he was ironing the clothes, in the meanwhile, he heard some noise and found accused molesting the complainant by placing his hands on her posterior. On hearing noise, he immediately rushed towards her, other public persons and brother of complainant also came there and accused was caught then and there. Thereafter brother of the complainant made a PCR call, on receiving information police reached there and inquired into the matter and recorded the complaint of the complainant. PW3 Sh. Bishambhar Dayal, father of complainant, has deposed that at the time of incident, he was on the streets, near to his house. At that time, he heard noise of his daughter and other women, he went at the spot and found accused being beaten. On inquiry, it was revealed that accused had touched his daughter's posteriors.
8. It be observed that complainant and other public witnesses have deposed on similar line and they have supported each other on material particulars. It is seen that during cross examination nothing substantial could be elicited to prove the defence of accused. During cross examination, complainant has state that she and accused have been residing at same locality for about 16 years. She has denied that she was having any kind of intimation with the accused. She has denied having knowledge that accused is mentally ill. She has stated that she has knowledge that accused is habitually engaged in eve teasing activities in the locality and therefore it is possible that accused was under influence of some mental problem. She has further denied that no such incident had taken place and FIR was lodged on false complaint. During cross examination PW2 has denied that the no such incident had happened and he was not standing in the Balcony at the time of aforesaid incident and that he was deposing falsely. It be observed that neither question has been put nor has suggestion been given to the witness with regard to plea of accused. Moreover nothing substantial could be elicited during cross examination to discredit this witness. PW2/Ramji Press wala has also deposed on the same line with every minute details about the incident. He has denied the suggestion that he had seen the incident.
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
69. Now coming to the point if alleged act of accused amounts to outraging and insulting the modesty of the complainant. The act of accused of placing his hands her posterior , pressing and titillating it and catching hold of her hand clearly amount to outraging her modesty as the accused had knowledge that by said act, her modesty is likely to be outraged. In the present case, the action of the accused and consequential reaction of complainant are such as could be perceived as one which are capable of shocking the sense of decency of the complainant. The PW1/complainant has categorically stated that accused suddenly came and placed his hands on her posterior, pressed and titillated it, he also caught hold of her hand and misbehaved with her. She shouted for help and on hearing screams, Ramji Presswala/PW7 came there and caught the accused. Thereafter her brother also reached there and made a PCR call. All these facts clearly establish that the accused caused sexual harassment to the complainant of the nature of unwelcome physical contact and advances and the act of accused was intentional and amounted to outraging the modesty of the complainant.
10. Now dealing with offence under section 509 IPC, this section makes intention to insult the modesty of a woman the essential ingredient of the offence. If a man intending to outrage the modesty of a women exposes his person indecently to her or uses obscene words intending that she should hear them or exhibits to her obscene drawing, he commits this offence. In the present case, the complainant has specifically stated that she knows the accused being her neighbour and he is in the habit of passing obscene comments and making obscene gesture. She has further deposed that on 20.04.2013 at around 4.00 pm, while she was standing outside the house, accused came there and put off his nicker and made obscene gesture towards her and ran away from the spot. It be observed that neither question has been put nor has suggestion been given to the witness to discredit him on this point hence testimony of the complainant has remained unchallenged and uncontroverted in this regard and deemed to have been accepted by the accused. The act of accused putting off his nicker in front of the complainant and making obscene gesture towards her clearly amount to intentional insult to the modesty of the complainant.
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
711. It is true that the accused has taken the defence that he has been falsely implicated by the complainant but nothing has been brought on record by the accused to prove his innocence. The accused has also failed to show the motive behind false implication. The accused was caught at the spot at the earliest, matter was immediately reported to police through PCR Call hence possibility of false implication does not arise.
12. In view of the aforesaid background, the defence's failure to prove the innocence of accused beyond reasonable doubt is explicit and hence he is convicted in FIR No. 70/13 PS Subzi Mandi under section 354/354A/509 IPC.
13. Put for quantum of sentence.
Announced in the open court on 04072014. (MONA TARDI KERKETTA ) MM Mahila Court( Central ) THC/Delhi.
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar. 8 FIR No.70/13 PS: Subzi Mandi U/s 354/354A/509 IPC State Vs Arun Sharma 04.07.2014 Present : Ld. Sub. APP for the state. Convict produced from J/C Sh. Pankaj Sharma, LAC
Vide separate judgment announced in the open court, the accused is convicted for the offence punishable under section 354/354A/509 IPC.
Put for arguements on quantum of sentence at 02.00 pm Mona Tardi kerketta MM02: Mahila Courts THC: Delhi 4.7.2014 At 02:00 pm Present : Ld. Sub. APP for the state.
Convict produced from J/C Sh. Pankaj Sharma, LAC Matter is fixed for arguements on quantum of sentence.
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
9It is submitted on behalf of the convict that he belongs to a poor family and is a first time offender. It is further submitted that he has remained behind bars for substantial period of time and therefore a lenient view may be taken .
On the other hand, Ld. Sub. APP has submitted that crime against women is on the rise and offender must be dealt with strictly in order to send the message across society and the convict deserves to be awarded maximum punishment prescribed.
The court has heard the arguements of both the sides and perused the entire record. The court is not inclined to grant the benefits of Probation of offenders act, 1958 to the convict keeping in view the facts and circumstances of the case. In case of Public Prosecutor Vs Godise Devaiah 1994 Cri.L.J.349(AP), it has been held that "simply beacuse in a given case, the provisions of Probation of Offenders act are applied, ti does not mean that the lower court should interpret it in a different way and release the accused under the said act. Showing leniency in such cases is nothing but encouraging the culprits to commit more offence and spoil one more life of an innocent girl". It is needless to state that the crime against women is on the rise and is required to be dealt with heavy hand.
Balancing the aggravating and mitigating circumstances, the court is of the view that ends of justice would be met if, the convict is sentenced to rigorous imprisonment for a period of 1 year for the offence punishable under section 354 IPC and 06 months for the remaining offences, the convict is further sentenced to pay fine FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.
10of Rs 500/, in case of default in payment of fine, he shall further undergo rigorous imprisonment for 15 days. Fine not paid. The sentence awarded to the convict shall run concurrently. However the convict shall be entitled to the benefit of section 428 Cr.P.C.
and sentence awarded today shall be set off against already undergone period during the trial . After set off, the convict shall undergo remaining sentence and shall be set at liberty if not required to be detained in any other case after sentence is served.
Jamatalashi articles shall be released to him as per seizure memo.
Concerned Jail Superintendent shall be notified regarding sentence awarded to the convict. Copy of order on sentence be sent for his perusal .
Copy of this order also be given to the convict for free of cost.
File be consigned to record room.
Mona Tardi kerketta
MM02: Mahila Courts
THC: Delhi 4.7.2014
FIR No. 70/13 PS S. Mandi. State Vs. Arun Kumar.