Delhi District Court
State vs . Ajit Singh & Others, Fir No:274/2001, ... on 22 December, 2010
Page 1 of 25
IN THE COURT OF Ms. VEENA RANI, ADMINISTRATIVE CIVIL JUDGECUM
COMMERCIAL CIVIL JUDGECUM ADDITIONAL RENT CONTROLLER, PATIALA
HOUSE COURTS, NEW DELHI
STATE V. : Ajit Singh & others
F.I.R. NO: : 558/98
POLICE STATION : Mehrauli
U/S : 354/341/323/509 IPC.
JUDGMENT:
1.Srl. No. of the case & Date of institution :91/1 ( 01082001 )
2.Date of commission of offence :12052001
3.Name of the complainant :State through Ms. Vijay Laxmi W/o Late Sh. Inder Singh, R/o Village Raj Pur Khurd, New Delhi
4.Name of the accused : (1)Ajit Singh S/o Sh. Goverdhan Singh R/o Village Raj Pur Khurd, New Delhi (2)Krishan Singh S/o Sh. Goverdhan Singh R/o Village Raj Pur Khurd, New Delhi
5.Nature of offence complained of :U/s 354/341/323/509 IPC
6.Plea of the accused person :All accused pleaded not guilty
7. Date reserved for order :31052010
8.Final Order :Both accused convicted.
9.Date of such order :22122010 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. File received from the court of Ms. Priya Mahendra, Ld. Metropolitan Magistrate (Mahila Court) South Delhi, Saket Courts for pronouncement of the judgment/order in the present case, in terms of circular/transfer order no:27132753/DHC/Gaz3/VI.E.2(a)/2010 Dt.2682010.
2. In the present case two accused persons namely Ajit Singh and Krishan Singh were brought before me for the trial on the allegations that 1252001 at 7:30 p.m in the lawn of house of late Sh. Inder at Village Rajpur Khurd, New Delhi both of the accused persons in furtherance of their common intention assaulted and used criminal force on the complaint Smt. Vijay Laxmi intended to outrage her modesty and voluntarily caused hurt to Smt. Vijay Laxmi and further State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 2 of 25 they in order to insult the modesty of Smt. Vijay Laxmi uttered words and made sounds and gestures intending that same shall be heard and seen by her and they also interude upon her privacy. Accordingly, after hearing the arguments, the charges were framed u/s 354/323/509/34 IPC against both the abovesaid accused persons. Both the accused persons pleaded not guilty and claimed trial.
3. The prosecution has relied upon a few witnesses. The police personals have been also been examined. The aggrievedperson was also examined in the court. The defense of the both the accused persons is reflected in their statement under S.313 of the Cr.P.C. whereby the accused have said that the case is false and that they are innocent and falsely implicated in the present case. Both the accused persons opted to lead the evidence in their defense.
4. Prosecution has examined Ct. Rakesh as PW1, who during his examination in chief deposed that on 1252001, he was posted in P.S. Mehrauli and on that day on receipt of DD No:9 he along with HC Pardeep Rathi went to the spot i.e in the house of Sh. Inder Singh at Village Rajpur Khurd. He further deposed that on reaching the spot IO filled up a medical form of complainant Smt. Vijay Laxmi and sent her with him for medical examination and after medical examination he came back to the spot. Pw1 deposed that IO gave a rukka to him, he got the case registered and came back to the spot. PW1 further deposed that accused Krishan and Ajit were arrested in his presence vide arrest memo Ex. PW1/A and Ex. Pw1/B which memos bears his signature at point A and B. He further deposed that IO recorded his statement. He correctly identified both the accused persons who were present in the court.
During his cross examination PW1 stated that he can not tell on whose information DD No:19 was written. He further stated that about 2025 persons of the village including the family members were already present at the spot in gali. Pw1 stated that in his presence statement of Dharmi and Smt. Vijay Lakshmi were recorded by the IO HC Pradeep Rathi.
PW1 further deposed during his cross examination that he reched the hospital at about 9/9:30 State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 3 of 25 p.m and remained there for about 30/35 minutes and after that he again reached at the spot and after that no statement was recorded by the IO in his presence. He denied the suggestion that he signed the memos at the police station.
5. PW2 was posted as duty officer and his duty hours were 5 p.m to 1 a.m. He further deposed that duty officer from PS Mehrauli gave information which was recorded by him vide Dd no:19 which is Ex. PW2/A. In his cross examination PW2 stated that he do not know the name of the duty officer of P.S. Mehrauli. He further deposed that so long as he remained on duty on that day Ct. Kuldeep Singh and H.C. Pradeep did not report to their arrival up to 1 a.m on 1352001. PW2 further deposed that he do not remember the PIC number of Ct. Rakesh and HC Pradeep.
6. PW3 is Smt. Dharmo W/o Ram Kishan, who during her chief examination deposed that about one and half years back , the day was 12th but she do not remember the exact month and year, she had gone to deliver milk at the house of Smt. Vijay Lakshi at 7:30 p.m, she was a quarrel.
PW3 further deposed that both the accused persons , who are present in the court and are brothers, touched the complainant Vijay Lakshi " Chipat Rahe Thay". It is deposed by PW3 that complaint became unconscious and she gave her water. She further deposed that she along with the complainant and the police officials went to the AIIMS for the medical examination of Smt. Vijay Laxmi and thereafter she along with Vijay Laxmi went to Chowki(C.P).
PW3 was cross examined by ld. APP for the state. During her cross examination by Ld. APP she admitted that she along with Vijay Lakshi came to the spot from the hospital and Smt. Vijay Lakshi gave her complaint. She further deposed that she can identify the accused persons and both the accused persons are present in the court.
During her cross examination by ld. Counsel for the accused persons, PW3 stated that the clothes of Vijay Lakshi were torn and blood was oozing from her injuries and when she reached at the spot accused had left Vijay Lakshi and ran away. She further stated that her State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 4 of 25 statement was recorded by the police and she put her thumb impression on her statement.
During her cross examination ld. Counsel for accused stated that he has not been supplied with such statement which bears the thumb impression of PW3 and on perusal of the file court gave observation that no such statement is placed on court record as well as on police file record.
PW3 was confronted with her statement Ex. PW3/DA where in it is not so recorded that she had gone to deliver milk at the house of the complainant Vijay Lakshi at 7:30 p.m and that accused persons had touched the complainant Vijay Lakshi (Chipat Gaye) and Vijay Lakshmi became unconscious and her gave water to her. During her cross examination PW3 deposed that statement of Vijay Lakshi was also recorded by the Head Constable. She further deposed that no other statement was recorded in her presence. PW3 denied suggestion that her husband Ram Kishan has became a witness and gave statement in favour of Vijay Lakshi in the case registered on the complaint of Surat Singh against Vijay Lakshi. She further denied the suggestion that she and her husband approached Vijay Lakshmi and Vijay lakshmi assured the help in the case against her husband. PW3 denied that she did not go to the hospital along with Vijay Lakshmi and police official. PW3 denied the suggestion that she and her husband are inimical towards the accused persons. PW3 further denied that she became false witness for Vijay Lakshi against the accused persons or that she had deposed falsely at the instance of Vijay Lakshmi.
7. Complainant Smt. Vijay Laxmi has been examined as PW4. During her chief examination she has deposed that on 1252001, at about 7:30 p.m, she came out of her house and entered in lane in front of her house, her Dever Krishan came there and removed her Chunni(Duppata) and caught hold her by chest, as a result of which she received scratches of nails and her shirt was also torned. She further deposed that Krishan also gave her filthy abuses. PW4 Smt. Vijay Laxmi deposed that , after one minute, her Jeth Ajit also came there and started abusing her and caught hold of her both hands and turned them back side and gave fist blow on her back and State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 5 of 25 she became unconscious. PW4 further deposed that a lady named Dharma , who lives in her neighbourhood, came for handing over milk, and when she found her unconscious she gave her water. PW4 Vijay Laxmi further deposed that after some time police also arrived there, and took her to AIIMS for medical examination where she was medically examined and after that she was discharged from the hospital and she went to her house and changed torned clothes.
PW4 deposed that she went to the police station and lodged her complaint Ex. PW4/A which is in her hand and bears her signature.
During her cross examination by the ld. Counsel for the accused persons, PW4 Vijay Laxmi stated that she did not write in her handwritten complaint that her clothes were torned and she went to her house and changed her clothes and thereafter went to police station, which fact she has stated for the first time in the court. She has admitted that she had not mentioned the fact in her statement that her hands were turned back and she had at that time caught the accused Krishan by collar as he had caught hold her chest and her hands were removed from the collar by the accused Krishan and turned on my back side by accused Ajit. She had denied that she did not become unconscious. She further stated that she also did not mention in her complaint that a lady named Dharma came there for handing over milk and found her unconscious. She has denied that she had introduced new facts to prove her version and to support the version of Smt. Dharma who has already been examined in this court. PW4 Vijay Laxmi admitted that Gowardhan Singh had filed suit for permanent injunction against her and both the accused in respect of land and a restrained order has been passed in the said case by Sh. Sudesh Kumar, Ld. Civil Judge, Delhi restraining the parties from making construction, selling or alienating the suit property vide order dated 2981996. She denied the suggestion that on 961996 she started construction and also removed bricks to grab the said property.
She has stated that a petition for contempt is pending against her for violating order dated 2981996 and suit filed by Sh. Gowardhan Singh is still pending. PW4 Smt. Vijay Laxmi State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 6 of 25 stated that she had filed a complaint in CAW Cell, Nanakpura against accused Kishan Singh and her father in law Gowardhan Singh and his brother Surat Singh on 2171996 but she do not remember whether she has mentioned the fact in his complaint that the said persons had entered in her house, molested her, beat her and torned her clothes and also attempted to murder her. She further stated that she do not remember whether the above named three persons were called by the CAW Cell on 3091996. Again said they were summoned by CAW Cell for inquiry but she do not remember whether after inquiry no action was taken against them. PW Vijay Laxmi admitted that she had filed a suit for permanent injunction against Gowardan Singh, Surat Singh, Kishan Singh, Mandeep and his sons for not allowing sale of land of Gowardan Singh and Surat Singh. She has denied that the property in which she is residing was constructed by accused Ajit Singh with his own money. She further denied that she filed the present report falsely on 1252001 in order to pressurized the accused and to grab the property. She has admitted that on the complaint of Sh. Surat Singh, who is the uncle of the accused persons, dt.8102001 FIR No:630/01 of PS Mehrauli u/s 447/506 IPC is pending trial against her. PW4 denied the suggestion that she assaulted and threatened Surat Singh on account of property disputes several times. She has admitted that Sjit Singh is now residing at Gurgaon, Haryana but witness again said she can not say where he resides now.
During his cross examination PW4 Smt. Vijay Laxmi denied the suggest that she did not name any of the accused person in her first statement given to the police at the spot or that later on after coming from the hospital after due deliberations she falsely named both the accused persons to pressurize them. She denied the suggestion that Smt. Dharmo and her husband Ram Kishan are inimical towards accused persons and therefore she introduced the name of Smt. Dharmo as a witness falsely. She further denied that PW Dharmo was neither present at the spot nor she accompanied her to the hospital. She has stated there were some blood marks on her clothes but she did not give them to the police. She has denied the suggestion that her State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 7 of 25 clothes were not torn and no blood was on the clothes therefore she did not give the clothes to the police. She has denied the suggestion that in order to pressurize the accused persons she has falsely implicated in the present case.
8. HC Raj Pal has been examined and inadvertently his witness serial number has also been given as PW4, who deposed that on 1252001 , in the intervening night at about 12:10 a.m he received one Tehreer from Ct. Rakesh, sent by HC Pradeep Kumar and on the basis of said Tehreer he recorded the present case FIR No:274/2001, u/s 323/354/509/34 IPC and after that he handed over the copy of FIR with original Tehreer to Ct. Rakesh to handover the same to IO.
Copy of the FIR is Ex. PW4/A and endorsement on Tehreer is Ex. PW4/B. Opportunity was given to the accused persons to cross examine PW4 but accused persons have failed to cross examine him.
9. PW5 is Sh. Rajbir Record Clerk from AIIMS hospital who has brought the original records of MLC in respect of Vijay Laxmi dt.1252001 who was examined by Dr. Vijay Kumar. He identified the signature of Dr. Vijay Kumar on MLC as he has seen him signing and writing during his official duties. MLC is Ex. PW5/A which bears the signature of Dr. Vijay Kumar at point A. Opportunity was given to the accused persons to cross examine PW5 but accused persons have failed to cross examine him.
10. The statement of both the accused recorded u/s 313 Cr.PC wherein they have denied all the allegations leveled against them and stated that they have been falsely implicated in the present case by the complainant Smt. Vijay Laxmi. It is stated by accused persons that complainant is inimical towards them and their family and she wants to grab their property. They further stated that complainant had earlier filed complaints against them which were investigated by the concerned authorities and found false. It is further stated by accused persons that the Mahavir Singh who is the maternal uncle of Vijay Lakshi was posted in Delhi Police and S>I Dharam State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 8 of 25 Pal was also another son of maternal uncle of complainant and ACP kapoor Singh Dalal is also relative of complainant and the father in law of sister of complainant was also a ACP in Delhi police and with their influence and connivance accused persons have been falsely implicated in the present case. They further deposed that a case FIR No:630/1 at PS Mehrauli u/s 447/506 IPC was registered against the complainant Vijay Laxmi on the complaint of their uncle Surat Singh. Accused persons further stated that their uncle Surat Singh does not want to give his property to Vijay Lakshmi during his life time and Vijay Lakshmi has impression that accused persons are instigated their uncle not to give his property to complainant. Accused Ajit Siongh stated that he is residing at Gurgaon and was not present at the time of incident and he was called from Gurgaon and falsely implicated in the present case. Accused further stated that PW Dharmo and her husband are inimical towards them and their famly. Accused persons further stated that they have always been treating Vijay Lakshmi as their sister.
11. The accused persons lead their defence evidence and examined Sh. Gulab Singh S/o Sh.
Mahesh as DW1. In his chief examination DW1 has deposed that he has been residing and working at Gol Kothi Farm House Wazir Pur, Gurgaon for the last 15 years and knows accused Ajit Singh for the last ten years as Ajit Singh is also residing in the adjacent farm house of Sh.
Parmod. Dw1 further deposed that on 1252001, at about 7 p.m, he has gone to the tubewell and accused Ajit Singh was also present there for using the tubewell and they remained there from 7 p.m to 8 p.m and thereafter they went to their respective houses in the farm houses.
Dw1 deposed that on 1352001 at about 10 a.m , one police man from Delhi came to the farm house and enquired about the Ajit Singh and he accompanied the police man to the farm house where Ajit Singh was residing and told the police man about his residence. DW1 further deposed that Ajit Singh was called by police man and that police man told that Daroga Sahib had called Ajit Singh to Police Post Maidan Garhi but said police official did not tell the purpose of calling Ajit Singh by Daroga Sahib and thereafter that police man and Ajit Singh State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 9 of 25 went in the car. It is further deposed by the Dw1 that again in the evening of 1352001 he met to Ajit Singh and enquired as to why he had been called by the police to police post on this Ajit Singh told him that his Bhabi Vijay Lakshmi has lodged a false complaint against him that there was a quarrel and he was implicated in the false case and he was required to furnish bail. Dw1 further deposed that he along with Ajit Singh went to PS and told HC Pardeep that Ajit Singh was with him on 1252001 from 7 to 8 p.m and the complaint lodged against Ajit Singh is false but HC Pardeep Kumar told him since the case has already been registered, he can not do anything and he should go to the court to depose about the same. During his cross examination by the Ld. APP for the state, Dw1 has denied the suggestion that Ajit Singh was not present with him on 1252001 at about 7:30 p.m. He further denied that he never visited the police station along with accused at any point of time.
12. Dw2 Sh. Krishan Singh S/o Sh. Gordhan Singh submitted certified copies of documents regarding the cases and proceedings pending between Sh. Gordhan Singh and Smt.Vijay Laxmi and orders passed by the courts, which are Ex. Dw2/A to Dw2/O. Opportunity was given to the ld. Counsel for the state to cross examine DW2 but same was nil.
13. I have heard ld. Counsel for the accused persons and ld. APP for the state and perused the material on record carefully.
14. WHETHER THE LITIGATION HISTORY BETWEEN THE ACCUSED AND THE COMPLAINANT IS RELEVANT:
The DW1 ((Sh. Gulab Singh) has mentioned in his testimony that the accused Ajit Singh had told him about the present false case being filed against him. The said piece of testimony brings out two angles to the present case: the angle of alibi and the angle of false complaint being lodged in the case. The second defense witness i.e. Sh. Krishan Singh (DW2) dwells on the aspect of the previous litigations and the said witness DW2 has exhibited certain judgments and orders of the different courts in order to drive home the point of false State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 10 of 25 complaint on part of the victim herein.
15. As far as the defense of alibi is concerned at the very onset it would be relevant to consider that such a suggestion (of alibi) was never put to the victim (PW4) while she was being cross examined. Such a version of 'alibi' does not find mention even in the statements of the accused under S.313 Cr.P.C. It is a well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. If plea of alibi is taken by the defense burden lies upon him under Section 106. His plea of alibi or any other plea or plea of any other fact having special knowledge can only be proved by the person who has taken plea. (see 2009 CRI. L. J. 4001 "Hari Narayan Singh (in Jail) v. State of W. B." CALCUTTA HIGH COURT). In the present case the accused has not discharged its burden to establish his plea of alibi. However, I am mindful of the observation made in (SC) "Subramaniam v. State of Tamil Nadu" reported in 2009 CRI. L. J. 3002 : "Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt."
16. Now I come to the version set up by the DW2 in which the defense of 'false implication' of the accused in the present case has been pointed out. In order to establish the defense the DW2 has exhibited various orders of other civil courts as well the criminal courts. The question is what effect will those orders/judgments would have on the present case. The provisions of S.41 to S.44 of the Indian Evidence Act, 1872 relate to the relevance of previous judgments/orders etc. S.40 deals with the Previous judgments relevant to bar a second suit or trail. S.41 deals with the Relevancy of certain judgments in probate etc. S.42. deals with the Relevancy and effect of judgment, order or decrees, other than those mentioned in S.41. The provision of S.43. deals with the Judgment(s) other than those mentioned in Section 40 to 42. The said provision of S.43 lays down that the Judgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act. In regard to the defense of the State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 11 of 25 accused the illustrations (e) & (f) are relevant. Both the said illustrations deal with the relevance of the existence of the judgment, as showing motive for a crime. According to Illustration (e) if A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue. According to Illustration (f) if A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.
17. In the present case Ex. DW2/B to Ex. DWJ relate to the suit in which the victim Smt. Vijay Laxmi was one of the defendants. Ex.DW2/K to Ex. DW2/N relate to a civil suit where the victim Smt. Vijay Laxmi was the plaintiff. The Ex.DW2/O is the complaint filed by the victim Smt. Vijay Laxmi. The learned counsel for the accused has crossexamined the complainant i.e. Smt. Vijay Laxmi mainly on the grounds that there had been a litigation history between the accused and her involving land. There had been a civil as well as criminal cases between the said parties. The litigation history may become a relevant circumstance when it supplies motive to the complainant or the accused. As for the accused the litigation history might become the reason for him to commit an offence. For instance a property dispute might end up in an offence on the body of the injured. When there are allegations against an accused then it is more rational to give more weight to the litigation history and the same would be relevant under the Indian Evidence Act. As for the complainantvictim the litigation history may not be of a great significance unless such complaint is founded on totally incorrect facts. The doctrine of 'motive' though germane to both, applies in one way to the accused and in another way to the victimcomplainant. In 1984 CRI. L. J. 203 "Gour Chandra v. State of W. B." there was a history of previous litigation between the accused and the victim. It was held by the Hon'ble Calcutta High Court that previous enmity is ordinarily a neutral circumstance which is considered as insofar as previous grudge may supply a motive for false implication as much as it may inspire the accused to take revenge in the manner alleged. Therefore, ordinarily such fact of previous enmity is considered as a neutral factor. The judgment in the civil proceedings will be admissible in the other proceedings evidence only for a limited purpose (see "Rumi Dhar v. State of West Bengal"AIR 2009 SC 2195). In Kharkan and others v. The State of U.P. State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 12 of 25 [(1964) 4 SCR 673], it was held: "............the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in Sections 40 to 43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence........."
18. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by 'A' on 'B's property, 'B' filed a suit for declaration of its title and to recover possession from 'A' and suit is decreed. Thereafter, in a criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of 'B' over the property. In such case, 'A' may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, first question which would require consideration is whether judgment, order or decree is relevant? if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case. (see "K. G. Premshankar v. Inspector of Police" AIR 2002 SC 3372). Where there is a specific provision covering the admissibility of a document, it is not open to Court to call into aid other general provisions in order to make a particular document admissible. In other words , if a judgment is not admissible as not falling within the ambit of Sections 40 to 42 it must fulfill the conditions of Section 43 otherwise it cannot be relevant. (see "State of Bihar v. Radha Krishna Singh" AIR 1983 SC 684).
19. In the present case the Exhibits DW2/B to DW2/O do not sharply carve out the possibility that the victim herein had lodged the present allegations with a certain motive. I have less hesitation in inferring that the accused have not been able to establish any 'motive' on part of the victim.
NONEXAMINATION OF THE MATERIAL WITNESSES:
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 13 of 25
20. The learned counsel for the accused has argued and mentioned in his written arguments that the two most material witnesses i.e. the Investigating Officer of the case and the Doctor have not been examined and the same has caused great prejudice to the accused herein.
21. As far as the nonexamination of the doctor is concerned is concerned can it is well settled that be said that nonexamination of the doctor would amount to nonfulfillment of the requirement of any of the offences which the appellant has been charged with? If there was any negligence on the part of the IO for nonexamination of the doctor the prosecution case must not fall to the ground on that score alone because the court has to look at the broader perspective of the case and evidence on record. In the present case the MLC report stands proved. The MedicoLegal Certificate is a certification of the fact regarding the inflicting of the injuries mentioned therein. An MLC needs to be proved like any other fact and the same is relevant under S.7 of the Indian Evidence Act which deals with the Facts which are occasion, cause or effect of facts in issue. Facts Which are the occasion cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant. The Illustration (b.) makes the legal position clear that the Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts. In the present case the marks of the injuries on the body of the are the immediate effect of the alleged offence. In the present case the MLC is PW5/A and is proved by PW5 who was the person responsible for maintaining the records. PW5 had categorically testified that he had seen the doctor writing the report and signing it. In the present case the MLC thus stands proved. The injuries mentioned in the MLC corresponds to the allegations made by the victim. The offences highlighted by the MLC are the offences of causing simple injury on the body of the victim. The mention of the 'pain in chest' indicates the outrage of the modesty of the victim. The said injuries are less likely to be self inflicted. It is not even the defense of the accused that the injuries were self inflicted. The said circumstance that the injuries were not selfinflicted rules out the 'motive' on part of the victim to implicate the accused persons.
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 14 of 25
22. As far as the nonexamination of the Investigating Officer is concerned it is well settled that nonexamination of any witness would not affect the prosecution case, but in a given case non examination of a material witness may affect the same. Reference in this connection may be made to the decision of the Hon'ble Supreme Court in the case of Masalti and Ors. v. State of Uttar Pradesh (AIR 1965 SC 202). It is well settled that nonexamination of investigating officer is not fatal for the prosecution unless it is shown that the accused has been prejudiced thereby. In the case on hand, in any view of the matter, it could not be pointed out that the defense has been prejudiced in any manner by nonexamination of the Investigating Officer.
DIACREPANCIES IN THE TESTIMONY OF THE WITNESSES:
23. The learned counsel for the accused have also pointed out towards the various discrepancies in the testimony of the prosecution witnesses particularly the one deposed by the victim Smt. Vijay Laxmi. It has been pointed out that the victim had not mentioned of torn clothes in her complaint. It has also been pointed out that the MLC speaks of no previous unconsciousness etc. While appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial Court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the Appellate Court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being the State of U.P. v. M.K. Anthony (1985) 1 SCC 505 as also a later one in the case of Leela Ram v. State of Haryana (1999) 9 SCC 525. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the Court to reject the evidence on minor variations and discrepancies.
24. In Leela Ram (1999 (9) SCC 525) (supra), it has been observed that no true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 15 of 25 tutored can successfully make his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in the jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. The Hon'ble Supreme Court has held in (1999 (8) SCC 649) (SCC pp. 65657, paras 2527) that it is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012).
26. Whether offence under S.323 IPC is established According to the S.319 IPC the simple hurt includes the bodily pain and the injuries not being of the grievous nature as enumerated under S.320. The MLC i.e. WX. PW5/A has already been discussed in great details therefore the offences offence under S.323 stand established by the prosecution.
27. Whether offence under S.354 IPC is established S.354 of IPC is composed of two essential ingredients: the use of criminal force or assault; and causing of the outrage of the modesty of the woman. That is to say that every use of criminal force or an assault would not necessarily attract S.354 IPC unless accompanied by State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 16 of 25 some outrageous act directed towards the modesty of the woman. The component of such an outrage is legally comprised of either indenting to cause the outrage or the knowledge that such an outrage is likely to cause the outrage. The statute therefore takes away the defense of the accused that he did not have the knowledge that his actions would actually outrage the woman's modesty. It is also for the said reason that the learned Legislatures deemed it proper not to define the term 'modesty' which is so subjective. Any definition could have induced 'technicalities' giving undue defense to an accused. The law expects extra caution on part of men dealing with women and the words 'likely to cause outrage' reflects that. The term 'modesty' is said to be attached to the women of all age and that would include the infants as well. According to the author K.D. Gaur (The Indian Penal Code, 4th edition:2009):
"Modesty is the quality of being modest which means , as regards women, decent in manner and conduct, scrupulously chaste, shrinking from indecency. Decency means propriety of behavior, what is required by good taste or delicacy, avoidance of obscene language and gesture and of undue exposure of person and respectability. Decorum means propriety of speech, manner etc. and dignity."
28. In State of Punjab v. Major Singh (AIR 1967 SC 63) a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354, IPC. Needless to say, the "common notions of mankind"
referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by the Supreme Court in Major Singh's case, 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.
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 17 of 25
29. The above position was noted in Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. (1995 (6) SCC 194). In the said case the accused slapped on the posterior of the lady officer and the same was done in the presence of other guests. This act on the part of the accused was held to have the ingredient of S. 354 IPC. It was proved that the accused used criminal force with intent to outrage the modesty of the complainant and that he knew well that gently slapping on the posterior of the lady in the presence of other guests would embarrass her. Knowledge can be attributed to the accused that he was fully aware that touching the body of the lady at that place and time would amount to outraging her modesty. Had it been without any culpable intention on the part of the accused, nobody would have taken notice of the incident.
30. The above position was also highlighted in Raju Pandurang Mahale v. State of Maharashtra and Anr. (2004 (4) SCC 371) wherein it has been laid down that intention is not the sole criteria of the offence punishable under S. 354, I.P.C. and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially 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 committed. A victim of molestation and indignation is in the same position as an injured witness and her witness should receive same weight.
31. Section 354 deals with the Assault or criminal force to woman with intent to outrage her modesty. The ingredients of the said offence are :
Assault or the use of the criminal force to any woman,
1. Intention is to be the intention to outrage;
2. The mere knowledge that the act is likely to outrage a woman's modesty.
3. The punishment prescribed is the imprisonment of either description for a term which may extend to two years, or with fine, or with both.
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli
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32. WHETHER S.34 IPC IS ATTRACTED.
Now I come to the aspect of the joint liability. Generally a person is responsible for his own acts and not of others. However, in certain situations a person can be held equally liable for something not exactly done by him but by the others if the act is done with some common intention. The Indian Penal Code in its Chapter II deals with the GENERAL EXPLANATIONS and provides for the vicarious liability in the provisions from S.34 to S.
37. The said sections do not define new offences but generally explain that if an offence is done by more than one person in concert with each other then irrespective of the exact individual part played, each person would be liable as if each has committed the offence alone.
The four sections bring out four different shades of the 'togetherness' of the accused persons. According to the said provision when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The basic ingredient is the 'common intention'. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention , the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 19 of 25 the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. As it originally stood the S. 34 was in the following terms : "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone." In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
33. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh, 1993(3) RCR(Crl.) 319 (SC) : (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
34. In Hari Ram v. State of U.P., (SC) reported in 2004(8) S.C.C. 146 the Hon'ble Supreme Court has deliberated on S.34 IPC and has held that the direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home charge of common intention prosecution has to prove common intention prearranged or State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 20 of 25 on spur of moment. If two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. If common intention is proved that it is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The provision of Section 34 IPC is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Section 34 IPC is applicable even if no injury is caused by a particular accused and it is not necessary to show some overt out on part of accused. {see AIR 1977 SC 109 and 1993(3) RCR(Crl.) 319 (SC)}
35. It was held by the Privy Council in Mahbub Shah vs. Emperor [AIR 1945 PC 118]:
"To invoke Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if it is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan. As has been often observed, it is difficult if not impossible to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
36. In Hamlet vs. State of Kerala [2003 (10) SCC 108, vide para 17], the Supreme Court held that to establish the common intention of several persons to attract Section 34, IPC, the following two fundamental facts have to be established:
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli
Page 21 of 25
i. common intention, and
ii. participation of the accused in commission of the offences.
37. It was held in "Laxman Anaji Dhundale v. St. of Maharashtra" AIR 2007 SC 1876 :
"No doubt, as held by Hon'ble Supreme Court in Anil Sharma vs. State of Jharkhand [2004 (5) SCC 679, vide para 17] direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case. However, in order to bring home the charge of common intention the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34. In the present case there is no credible evidence, direct or circumstantial, that there was such a plan or meeting of minds of all the accused persons to commit the offence in question."
38. It is also true that stray assault cannot be the ground for fastening the vicarious criminal liability but in the present case the concert of the accused person was such that all were in a way cooperating with each other. In the present case the incriminating circumstances clearly depict the element of 'togetherness' of the accused persons who had an understanding to assault the victim. The prosecution has been able to establish the elements of S.34 of the IPC. At the best the defense could have been that it was on the spur of the moment and S.34 IPC is not attracted but even then the element of 'cooperation' under S.37 IPC is depicted by the fact that one accused held one of the victims and the other thrashed. Therefore I am convinced that the four accused acted 'together'. The above position was highlighted recently Anil Sharma and Others v. State of Jharkhand [2004(5) SCC 679]. S.34 IPC has clear application to the facts of the case.
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 22 of 25 WHETHER OFFENCE UNDER S.509 IPC IS ESTABLISHED:
39. Now I shall consider whether the prosecution has succeeded in establishing the criminality of the accused. Section 509 I.P.C. reads as follows : "Word, gesture or act intended to insult the modesty of a woman . Whoever, intending to insult the modesty of any woman , utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman , or intrudes upon the privacy of such woman , shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
40. A reading of the title of Section 509 IPC itself shows that the section deals with an offence involving word, gesture or act which are intended to insult modesty of a woman . The offence under the said section will be attracted if a person intending to insult the modesty of a woman , utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman , or intrudes upon the privacy of such woman . Though Section 323 IPC was available to protect a woman also from the use of a criminal force or assault against her, Section 354 was introduced into IPC, with a specific object. It was not because there was no other provision in IPC to punish a person using a criminal force or making an assault against a woman that another provision by way of Section 354 IPC was brought in. Legislature intended that a special provision must be made available to protect a woman , if any assault or force is used against her, intending to outrage her modesty. Emphasis was on the aggressions made on the modesty of a woman . Legislature specifically intended that any assault on a woman's modesty has to be curbed and controlled effectively. Later, legislature found that a woman must be protected not only from physical aggressions made in the course of outraging her modesty, but she should also be shielded from various other acts which do not involve even a touch. Legislature was quite aware that a woman 's modesty can be insulted or outraged in various ways. A mere word, a wink, a touch or even a look would suffice to insult the modesty of a woman . Physical advances may not be necessary in all cases. Everything depends on the intention of the mischief maker and the manner in which State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 23 of 25 he conveys his intentions. It is evident that legislature intended that any aggression into a woman 's modesty whether by any word, deed, touch or look need be curbed and deterred. That is why even a verbal attack on a woman , a gesture and other acts stated in Section 509 IPC were brought under the said Section. It is clear from a reading of Section 509 IPC that by introducing the said provision, legislature intended that any sort of aggression into a woman 's modesty whether by any word, deed or act should be deterred, as evident from the title to the section itself. Thus, the acts which are done intending to insult the modesty of a woman which may not necessarily involve even any physical advances are also brought within the sweep of a separate provision viz., Section 509 IPC. (see M.M. Haries v. State of Kerala, (Kerala) 2005 Cri.L.J. 3314 ).
41. In State of Kerala v. Hamsa, (1988) 3 Crimes 161, it was held:
"What the legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman , as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman , as it may vary from country to country or society to society."
42. A well known author Kenny in his book "Outlines of Criminal Law", 19th Edn., para 146 p. 203 has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under :
"In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 24 of 25 the act of indecency."
43. In the present case the complainant has deposed that the accused was using 'filthy language' in the remarks made. The meaning of filthy is something, such as language or printed matter, which is considered obscene, prurient, or immoral. In the present case the complainant has not deposed what were the exact words which were used by the accused. It is very essential to know the 'exact words' uttered. The witness PW1 has deposed that she 'felt' that her modesty was outraged by the boys. That goes to say that it was her own subjectivity which lead her to form an opinion that her modesty was outraged. The ingredients of S.509 IPC would not suggest that the offence could be established without considering the precise words uttered. The words so uttered has to weighed against the mere opinion that a woman forms. This distinction of a mere opinion and the actual insult has been considered in a case Sau. Auuradha R. Kshirsagar v. State of Maharashtra , (Bombay)(At Nagpur) reported in 1991 Cri.L.J. 410 where the accused had uttered the words related to catching the woman by hair, kicking on her waist, pulling her out or giving threat etc. which were held not to be connected with feminity and consequently not related to the modesty of the woman . These were held to be the common utterances visavis a female or a male and the specific offence under s.509 IPC was held to not to be made out. It was clearly held therein that the mere utterances do not violate the concept of feminity. In another case Smt. Seeta Devi v. State of Punjab, (P&H) reported in 2002(2) R.C.R.(Criminal) 232 it was pointed out that general allegations without specifying the distinct role of an accused is not enough to establish the offence relating to modesty. In the present case what has happened is that the complainant saw a group of boys and heard some filthy words not specifying who uttered them. In the present case.The words are not specified. In such a situation it becomes very unsafe to hold an accused guilty of the offence under S.509 IPC.
WHETHER THE OFFENCE UNDER S.341 IS ESTABLISHED:
44. In view of aforementioned observation and discussion I am of the considered view that the prosecution has succeeded in proving the offence u/s 354 r/w S.34 & Section 323 r/w S.34 State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli Page 25 of 25 IPC beyond any reasonable doubts against both the accused persons. Therefore, both the accused persons namely Ajeet Singh and Krishan Singh are convicted for the offence under Section 354 r/w S.34 IPC and for the offence under Section 323 r/w Section 34 IPC.
45. Be put up before the concerned court of Priya Mahendra, Ld. Metropolitan Magistrate (Mahila Court) South Delhi, Saket Courts, through Ld. District JudgeIV & Session Judge, Patiala House Courts, New Delhi, for sentence.
Announced in the open court on this 22nd day
of December, 2010. (Veena Rani)
CCJCumACJCumARC/ND
State Vs. Ajit Singh & others, FIR No:274/2001, P.S. Mehrauli