Delhi District Court
State vs . Rakesh on 24 June, 2013
FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT : DELHI FIR No.:253/2004 PS: DBG Road U/s 294/509 IPC State Vs. Rakesh Unique ID No.: 02401R0224652010 J U D G M E N T:
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(a) S.No. of the case : 17/1
(b) Name of complainant : Smt. Kamla W/o Sh. Vinay Kumar, R/o H. No.T29, Rani Mahal Railway Colony, Kishan Ganj, Delhi.
(c) Date of commission of offence : 21.06.2004
(d) Name of the accused : Rakesh Gupta
S/o Sh. Ram Dass
R/o T97B, Railway Colony,
Kishan Ganj, Delhi.
(e) Offence complained of : U/s 294/509 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 24.06.2013
(h) Final Order : Convicted U/s 294/509 IPC
(i) Date of such order : 24.06.2013
State V/s Rakesh (" Convicted ") Page 1 of 13
FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief as emanating from the record are that on 21.06.2004, HC Krishan Kumar and Constable Puran Chand were on patrolling duty and were present in the area of Railway Colony, Kishan Ganj and found crowd of some people. Out of that gathering, one female namely Smt. Kamla (complainant herein) approached to the police officials and recorded her statement about the incident happened to her. The complainant disclosed that at the relevant time, she was residing at T29, Shani Mahal, Railway Colony, Kishan Ganj alongwith her father and other family members. On that day, she alongwith other family members, was sleeping outside the said house. At about 03:30 AM, she noticed that Rakesh (accused herein), their neighbour was standing aside her cot and hide himself under her cot on seeing her brother who returned there after attending nature's call. When she objected the same, the accused told that due to cold he came there just to do something pleasant and he started making vulgar gesture against her and also misbehaved with her. On the basis of the said complaint, FIR in the matter was registered and at the instance of complainant, accused was arrested by the IO and after completion of necessary investigation, challan was prepared and filed before the Court through concerned SHO.
2. After completion of investigation, accused stood chargesheeted for offences punishable u/s 294/509 IPC.
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3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 03.08.2010, Notice in terms of Section 251 CrPC for offences punishable u/s 294/509 IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
4. During trial of the present case, accused stopped appearing in the matter and was declared proclaimed offender and after examination of two prosecution witnesses u/s 299 Cr.P.C, file was consigned to the Record Room with liberty to the prosecution to seek its revival in the event of apprehension of accused.
5. Thereafter, accused was produced before the Court in police custody after his arrest u/s 41.1 Cr.P.C. and he was taken into custody in the present case.
6. In order to prove charges against accused, prosecution examined five witnesses and thereafter, PE in the matter was closed and statement of accused u/s 311Cr.P.C. was recorded wherein he stated that he was falsely implicated in the present matter.
7. I have heard arguments advanced at Bar by the Ld. APP for the State and Sh. R.K. Sharma, Advocate for accused and perused the entire material State V/s Rakesh (" Convicted ") Page 3 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 on record.
8. Before adverting to adjudication upon the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
9. PW1 Ct. Puran Chand was initially examined u/s 299 Cr.P.C. wherein he deposed that on 21.06.2004, he alongwith HC Krishan were on patrolling duty and when they reached at Railway Colony, Rani Mahal, Kishan Ganj, one lady namely Kamla met them and told that she has been teased by the accused namely Rakesh. Thereafter, accused Rakesh was arrested u/s 93/97 D.P. Act. Thereafter, on 25.07.2004, he got the present FIR recorded on the basis of rukka given to him by HC Krishan. Thereafter, accused was arrested vide memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. IO recorded his statement.
No cross examination of this witness was done as accused was proclaimed offender at that time. However, later on when accused was joined the proceedings, this witness adopted his examination in chief recorded earlier, however accused did not cross examine this witness despite being afforded opportunity in this regard.
10. PW2 Smt. Kamla, complainant was also examined u/s 299 Cr.P.C.. She reiterated the contents of her complaint given to the police. State V/s Rakesh (" Convicted ") Page 4 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 No cross examination of this witness was done as accused was proclaimed offender at that time. However, later on when accused was joined the proceedings, this witness adopted her examination in chief recorded earlier and was extensively cross examined on behalf of the accused wherein she stated that she was lying on the cot at the time of the incident. Besides her, her parents and children were also sleeping. Her son namely Deepak was also sleeping there at that time. She was in semi sleeping condition. Her parents were awake at that time and were sitting on cot. There was a courtyard in front of her jhuggi. She admitted that accused was residing as tenant in the jhuggi situated in front of her jhuggi. The incident had taken place at about 3.30 A.M. She did not remember the exact time when she had made telephone call to the police official. She also did not remember the exact time when police had reached at the spot. She volunteered that police had come to the spot within half an hour of her making the call to the police. She herself had made the said call. Only one police official had come to the spot at that time. The police official had taken her as well as the accused to PP Dev Nagar where police had made inquiry from her. She was not got medically examined at any hospital. She did not receive any injury during the incident in question. Her parents were also present at the time of incident. She volunteered that her brother was also present there. When she raised cry, her parents as well as brother got woke up. The accused was previously known to her prior to the incident as the brother and sister in law of accused were residing in the same locality. Prior to the incident in question, the accused did not indulge into State V/s Rakesh (" Convicted ") Page 5 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 vulgar signal or objectionable words with her. She admitted that accused used to supply milk to the houses during the relevant period. She denied the suggestion that she had any dispute with the accused over the said issue about 2/3 days prior to the date of incident or that she had threatened the accused at that time that she would got him falsely implicated in some criminal case. She also denied the suggestion that accused did not indulge into any vulgar signal and did not use objectionable words as alleged by her or that accused has been falsely implicated in this case at her instance due to previous enmity or that no such incident took place on 21.06.2004.
11. PW3 Sh. Raju initially examined u/s 299 Cr.P.C. wherein he deposed that on 21.06.2004, his sister was sleeping outside the house alogwith her children. At about 03:30 AM, on his return to answer nature's call, he noticed that accused Rakesh was trying to sit under the cot on which his sister Kamla was sleeping. Accused started passing vulgar signals towards his sister and also used some objectionable words. Matter was reported to the police and police recorded his statement as well as the statement of his sister.
No cross examination of this witness was done as accused was proclaimed offender at that time. However, later on when accused was joined the proceedings, this witness adopted his examination in chief recorded earlier, however accused did not cross examine this witness despite being afforded opportunity in this regard.
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12. PW4 HC Krishan Kumar deposed that on On 21.06.04, he alongwith Constable Puran Chand were patrolling in the area of PS DBG Road. At about 3.30 A.M when they were at Rani Mahal Railway Colony, they saw some crowd in front of Rani Mahal. They noticed that accused Rakesh was raising abuses in loud voice. Smt. Kamla Devi was also present there who told them that the accused had went beneath her cot where she was sleeping and was raising abuses. He recorded the detailed statement Ex. PW2/A of complainant namely Smt. Kamla Devi. He tried to pacify the accused but he was reluctant. He booked the accused U/s 91/93/97 of D.P Act vide DD no. 7 dt. 21.6.04 and produced him before the Court of Ms. Reena Singh Nag, Ld CMM Delhi. On 05.07.04, on the directions of Sh. Paramjit Singh, Ld. MM, necessary proceedings against the accused for offence U/s 294/509 IPC was initiated. The kalandara Ex.PW4/A with accompanying documents were returned to PS DBG Road. He had prepared rukka Ex. PW4/B and had got the present FIR registered through Ct. Puran Chand. He prepared the site plan Ex.PW4/C on the pointing out of Smt. Kamla. He arrested the accused from Rani Mehal, Railway Colony, Kishan Ganj vide memo Ex. PW1/A and subsequently released the accused on bail vide memo Ex.PW4/D. He had also arrested the accused in Kalandara and had conducted his personal search vide memos Ex PW4/E and PW4/F respectively. He had got the accused medically examined vide MLC mark A. This witness correctly identified the accused before the Court.
This witness was not at all cross examined by the accused despite State V/s Rakesh (" Convicted ") Page 7 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 being afforded opportunity in this regard.
13. PW5 Retired SI Anand Mani was the Duty Officer at the relevant time. He recorded the present FIR Ex.PW5/A on the basis of rukka. He also proved his endorsement Ex.PW5/B made on the rukka.
During his cross examination, he stated that the overwriting at point X was not made by him. He did not know who had made the said correction. He denied the suggestion that he had made the corrections at point X.
14. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon :
15. It has been argued by Ld APP that prosecution has been able to prove its case against the accused beyond reasonable doubt. She has referred to the testimonies of prosecution witnesses examined during trial. Ld APP relied upon the testimonies of both the star witnesses examined by prosecution namely PW2 Smt Kamla and PW3 namely Sh Raju. It has been further submitted by Ld APP that accused could not impeach the testimonies of the prosecution witnesses during their cross examination and has also failed to prove his defence as raised by him during trial.
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16. Per contra, Ld defence counsel has argued that prosecution has failed to prove its case against accused beyond shadow of doubt. He argued that there is considerable delay in registration of FIR which could not be explained by prosecution. In this regard, he submitted that alleged incident took place on 21.6.04 but FIR is claimed to have been registered only on 25.7.04 and there is a delay of more than one month in registration of FIR. He further argued that the complainant namely Smt. Kamla (PW2) has not been medically examined during investigation by investigating agency which constitutes serious lapse thereby raising reasonable doubt in the case of prosecution. Thus, accused is entitled to be acquitted in this case. While referring to the testimony of PW2 namely Smt Kamla wherein she claimed that one police official had come to the spot at that time, Ld defence counsel further argued that two police officials were on patrolling duty and had reached the spot as per prosecution story as mentioned in the charge sheet. Thus, the testimony of PW2 is contrary to the prosecution story thereby creating reasonable doubt benefit of which must be given to the accused.
17. As already mentioned above, kalandara U/s 91/93/97 of Delhi Police Act was initially prepared in this case on the basis of DD no. 7 dt. 21.6.04 recorded in PP Shidipura. I have gone through the copy of said DD entry as well as said kalandara Ex PW4/A available on record. It is mentioned in the kalandara itself that the complainant got her statement Ex PW2/A, recorded through HC Krishan Kumar. Instead of registering the FIR on the basis of State V/s Rakesh (" Convicted ") Page 9 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 said statement, it seems that kalandara U/s 91/93/97 D.P Act was prepared. However, it is only after the Court had issued direction for taking appropriate action vide order dt. 05.07.04, tehrir Ex PW4/B was prepared by HC Krishan Kumar (PW4) on 25.07.04 and the FIR in respect of offences U/s 294/509 IPC was got registered. The said facts have been duly explained by IO namely HC Krishan Kumar(PW4) during his testimony recorded before the Court. The accused preferred not to cross examine the said witness despite grant of opportunity and thus his testimony has remained unchallenged. As such, it cannot be said that the delay in registration of FIR has not been explained during trial.
18. There is no merit in the contention raised by Ld defence counsel that prosecution story should be viewed with suspicion due to the fact that complainant was not got medically examined during the course of investigation. As rightly submitted by Ld APP, there was no occasion for getting the medical examination of complainant conducted in this case as there were no allegations about sexual assault. Rather, the allegations disclosed that the accused had made vulgar gestures against the complainant thereby outraging the modesty of complainant besides use of obscene words in public place and within the view and hearing of the complainant and her family members. In this backdrop, I am of the view that no fault can be found on the part of investigating agency in not getting the medical examination of complainant conducted.
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19. The contradiction as pointed out by Ld defence counsel appearing in the testimony of Ms Kamla(PW2) that only one police official had come to the spot as contrary to the prosecution story which states that two police officials have come to the spot, is minor contradiction which does not go to the root of the prosecution story so as to disbelieve the entire prosecution story on this ground.
In the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
20. Both the star witnesses examined by prosecution i.e PW2 namely Smt. Kamla and PW3 namely Sh. Raju, have fully supported the case of prosecution on all material points. Out of said two witnesses, testimony of PW3 has gone unrebutted and unchallenged as accused preferred not to cross examine the said witness despite grant of opportunity. The other witness i.e PW2 has successfully withstood the test of cross examination and the accused State V/s Rakesh (" Convicted ") Page 11 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 could not elicit anything contrary to the case of prosecution during her cross examination. The accused has taken the defence during cross examination of said witness that she had dispute with him about two/three days prior to the date of incident over the issue of supply of milk and she had threatened for getting him falsely implicated in some criminal case. Said defence has been completely denied by the said witness(complainant). Besides making suggestions during cross examination of PW2, the accused has failed to raise the said defence anywhere else so much so that he has not taken this defence even in his own statement U/s 313 Cr.PC recorded by Court on 09.04.13 wherein he has simply claimed that he had been falsely implicated in this case. He has also not produced any witness towards his defence evidence in order to show that any dispute had taken place with the complainant over the issue of supply of milk as suggested during cross examination of the complainant. That being so, there is nothing on record which may show or even suggest that either PW2 namely Smt. Kamla or PW3 namely Sh Raju had any previous enmity with him to get him falsely implicated in present case or to give false statements before the Court.
21. It is also relevant to note that accused did not cross examine both the material police officials who were associated during investigation of this case and examined as PW1 and PW4 during trial. Both the said witnesses have also corroborated the testimonies of complainant(PW2) and her brother(PW3) on all material points which leaves no scope of doubt that the incident in State V/s Rakesh (" Convicted ") Page 12 of 13 FIR NO. 253/2004; PS DBG Road; U/s 294/509 IPC DOD: 24.06.2013 question had actually taken place on the given date, time and place.
22. In the present case, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused in his statement has claimed that he is innocent but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would falsely implicate him at the behest of complainant. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
23. In view of the above discussion, Court is of the view that prosecution has been successful in establishing the charges in respect of offences U/s 294/509 IPC against the accused beyond reasonable doubt. Accordingly, accused namely Rakesh Gupta stands convicted for the said offences.
Announced in the open court (Vidya Prakash)
on 24.06.2013 Chief Metropolitan Magistrate:
Central District : Delhi.
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