Delhi District Court
State vs . Sharda Shah on 1 March, 2012
1
IN THE COURT OF MS VANDANA JAIN,
METROPOLITAN MAGISTRATE, MAHILA COURT (EAST),
KARKARDOOMA COURTS, DELHI.
FIR NO.: 391/2007
P.S.: Preet Vihar
U/Section 354 - IPC
State VS. Sharda Shah
JUDGMENT:
1. Date of commission of : 6.6.2007
offence
2. Name of complainant : Smt. Rita Devi, W/o Sh.
Nagina Yadav, R/o Jhuggi No.
E-84/270 Chittra Vihar, Delhi.
3. Name of the accused, his : Sharda Shah,
parentage and address S/o Sh. Gorakh Shaha,
R/o Jhuggi No. 13-T, Chittra
Vihar, Delhi.
4.Offence complained of : U/s 354 IPC
5. The date of order : 1.3.2012
6. Plea of accused : Pleaded not guilty
7. The final order : Convicted.
Reserved for judgment : 13.2.2012
Date of judgment : 1.3.2012
THE BRIEF REASONS FOR THE DECISION
1. The brief facts of the present case which culminated into present FIR are that on 6.6.2007 at 11.30pm in front of Jhuggi No. E-84/270, Chittra Vihar, Delhi, accused Sharda Shaha assaulted and used criminal force against the complainant Rita Devi with an intention to outrage her modesty and thereby, committed an FIR No. 391/2007 State Vs Sharda Shah 2 offence punishable U/s 354 IPC.
2. FIR was registered on 7.6.2007 and investigation was done and the charge sheet was filed before this court on 7.11.2007 and vide order dated 22.8.2009 charge for the offence punishable U/s 354 IPC was framed against the accused. The said charge was read over to the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case prosecution cited as many as four witnesses namely Rita Devi (Complainant), HC Kishan Dev Singh, SI Mausam Ganni and retired SI Maha Singh, who were examined as PW-1 to PW-4 respectively.
4. PW-1, Smt. Rita Devi (complainant) stated on oath that she was engaged in the work of ironing the clothes in jhuggies and her husband had gone for work at Ghaziabad for printing and he used to come to her only for one day in a week. On that day at night at about 11.30pm the electricity had gone and she made her children lay on the cot lying in the park in front of her jhuggi across the lane. She further stated that she laid her son on the table which was lying in front of her jhuggi and taking advantage of that darkness her neighbour laid himself besides her on the said table which was used for ironing and caught hold of her hand and when she uttered as to who is present there in amazement, accused told her to shut up and caught hold of her hand very strongly. She further stated that she somehow managed to wriggle out of his grip and ran to the police FIR No. 391/2007 State Vs Sharda Shah 3 station of PS Preet Vihar wherein she narrated the whole incident. She further stated that police assured her to lodge the FIR and recorded her statement Ex. PW-1/A. Thereafter she showed the place of incident to the police and police prepared the site plan, but the police effected the arrest of accused on 7.6.2007. Witness correctly identified the accused. She was further cross examined by Ld. Defence counsel wherein she stated that she had told the police that accused Sharda Shah had caught hold of her hand after lying beside her on the table. She was confronted with her statement Ex. PW-1/A wherein it was not so recorded. She further stated that she had also told the police that the accused had caught hold of her hand strongly while asking her to shut up when she objected to his lying besides her. She was again confronted with her statement Ex. PW-1/A wherein it was not so recorded. She further stated that after wriggling herself out of of the grip of accused, she ran into her house and bolted the door from inside as she was scared. She further stated that all the children were sleeping outside the house at the time when she bolted herself inside the house and remained there for 5-10 minutes and thereafter she went to police station to lodge the complaint. She reached at the PS at about 11.45pm or 12.00am. She further stated that she remained in the PS for 15-20 minutes. She further stated that police recorded her statement and she put her thumb impression on her statement. She further stated that around 10 - 12 police personnel were FIR No. 391/2007 State Vs Sharda Shah 4 present. She further stated that she came back to her jhuggi after getting her statement recorded and one police official accompanied her to her jhuggi. She further stated that she came back to her jhuggi at around 12.15am (night). She further stated that police official who came alongwith her and searched the accused but could not find him. She further denied the suggestion that her husband is in the business of illicit liquor. She voluntarily stated that her husband is in the business of printing sarees. She further denied the suggestion that any litigation is pending against her husband. She further denied the suggestion that her husband is BC in area. She further denied the suggestion that the accused has been falsely implicated as he had removed the table used for ironing the clothes and in revenge he was falsely implicated. She further stated that the electricity of the jhuggies had gone on that day, but the street light was there at the time of incident. She further denied the suggestion that there was no street light at that point of time and usually the electricity goes totally. She further stated that at the time when accused Sharda Shah laid himself besides her on the table the smell of liquor was not coming from his mouth. She further denied the suggestion that the accused was a habitual drunkard. She further denied the suggestion that no such incident took place at that point of time and that is why she had not raised any alarm.
FIR No. 391/2007 State Vs Sharda Shah 5
5. HC Kishan Dev Singh, stated that on 7.6.2007 he was posted at PS Preet Vihar as HC and was working as DO from 4.00pm till 12 midnight. He further stated that on 7.6.2007 at about 9.15pm SI Maha Singh gave him a rukka on the basis of which he registered FIR and copy of the FIR is Ex. PW-2/A. He also endorsed the rukka whichis Ex. PW-2/B. Thereafter he handed over the copy of FIR and original rukka to Ct. Mausam Ganni for handing over the same to SI Maha Singh. He was cross examined by Ld. defence counsel wherein he stated that he received a rukka at about 9.15pm from SI Maha Singh and it took 15-20 minutes for preparation of present FIR and he handed over the FIR to Ct. Mausam Ganni at about 9.35pm.
6. PW-3 SI Mausam Ganni in his examination in chief stated that on 7.6.2007 DO handed over to him the copy of the present FIR and original rukka to him and after reaching at Chitra Vihar Jhuggi, he handed over the copy of FIR and original rukka to IO/SI Maha Singh. PW-3 was duly cross examined by Ld. defence counsel wherein he stated that he reached at the spot at about 10.10pm to 10.15pm and light was on at the spot. He further stated that he went to the spot on bike. He further stated that his statement was recorded at the spot and he remained at the spot for about 15-20 minutes. He further denied the suggestion that he never visited the spot or that he was deposing falsely.
FIR No. 391/2007 State Vs Sharda Shah 6
7. PW-4 Retd. SI Maha Singh has stated that on 7.6.2007, he was posted at PS Preet Vihar as SI and on that day complainant came at police station and told to him about the incident. He recorded her statement and prepared rukka Ex. PW-4/A. After preparing the rukka he handed over the same to duty offiicer for registration of FIR. After obtaining the rukka he reached at the spot i.e Jhuggi Chitra Vihar with the complainant and after inspection of the spot he prepared site plan Ex. PW-4/B. He further stated that he recorded the statement of the witnesses and on the instance of the complainant he arrested the accused (Witness correctly identified the accused) and prepared arrest memo Ex. PW-1/B and personal search memo Ex. PW-4/C. He further stated that accused was released on bail. He further stated that after completion of investigation he prepared challan. He was cross examined by Ld. Defence counsel wherein he stated that on 7.6.2007 at about 8.30 to 9.00pm complainant and her husband came to the police station at PS Preet Vihar, who stayed there for 30 - 45 minutes. He further stated that complainant was present at PS at the time of registration of FIR. He further stated that after handing over the rukka for registration of FIR he alongwith complainant reached at the place of incident at about 9.30pm wherein he prepared the site plan and interrogated some people in the locality. He further stated that he could not tell for how much time he stayed at the spot. He denied the suggestion that he did not made any efforts to join any FIR No. 391/2007 State Vs Sharda Shah 7 public witnesses for the investigation. He further denied the suggestion that all the proceedings of the case were prepared by him by sitting in the police station or that he had not visited the place of incident. He further stated that he recorded the proceedings in the public park in the nearby locality. He further stated that there was proper light in the public park. He denied the suggestion that site plan does not bear the signatures of the complainant or the accused. He further stated that he could tell the exact time when he alongwith Ct. Mausam Singh reached at PS. He further denied the suggestion that he has prepared a false case against the accused and accused had not committed an offence. He further denied the suggestion that no such incident had occurred on that day and he was deposing falsely.
8. After completion of prosecution evidence SA was recorded U/s 313 Cr.P.C. wherein accused denied all the allegations levelled against him and stated that he has been falsely implicated by the complainant as she was having animosity against him as he had raised objection against their illegal business of liquor run by the complainant and her family members. Furthermore, he had also raised objections regarding encroachment made by the complainant in front of his jhuggi as she used to iron clothes by putting her table in front of his house.
9. I have heard the arguments on behalf of Ld. APP for State and defence counsel and have perused the record carefully.
FIR No. 391/2007 State Vs Sharda Shah 8
10. The complainant in her complaint has factually stated that on 6.6.2007 at night at about 11.30pm, the electricity had gone and her husband was also not present and she came out of her jhuggi and made her children lay on the cot in a park and she herself lied down on the table which was used for ironing clothes and at that time taking advantage of the darkness accused came there and laid himself on the same table besides the complainant and caught hold of her hand. She also stated that when she asked as to who is present there he told her to shut up and caught hold of her hand more tightly. In her cross examination she was confronted with her statement Ex. PW-1/A wherein it was not mentioned that accused caught hold of her hand and also asked her to shut up. Perusal of statement Ex. PW-1/A reveals that complainant has been consistent about her statement regarding the fact that due to disconnection of the electricity she had lied down on her table used for ironing the clothes and accused came and also lied down with her and when she asked as to who is there he asked her to shut up ad she immediately got down from the table and ran away and went to her children. From the statement it is clearly revealed that the accused had come to the complainant with a bad motive since there was no occasion for him to come and lie down on the table of the complainant used for ironing clothes, despite being well within the knowledge that complainant was sleeping there. The intention of the accused becomes crystal clear. As far as the contention of Ld. FIR No. 391/2007 State Vs Sharda Shah 9 Defence counsel regarding the fact that the complainant did not mention in her statement that accused had caught hold of her hand is concerned, I am of the view that since the incident as narrated by the complainant in her statement Ex. PW-1/A was shocking, she seems to have mixed the same. Further, during her cross examination a suggestion was put to her that her husband was dealing in the business of illicit liquor and a litigation is also going on against her husband. Though it has nowhere been mentioned as to why the accused would be falsely implicated by the complainant. It has also been suggested to the complainant that as the accused had removed the complainant's table used for ironing the clothes he has been falsely implicated by the complainant in the present case. In statement U/s 313 Cr.P.C. accused has stated that the complainant had animosity against him as he had raised objection against their illegal business of liquor run by the complainant and her family members. Despite the fact that this question has been asked in the cross examination of complainant by the accused but the accused did not prove anything in defence regarding the litigations going on against the husband of the complainant. Merely putting up a question in cross examination, would not amount to proving a certain fact which is set forth as a story of defence. As far as catching hold of the hand of the complainant by the accused is concerned, though the same has not been admittedly written in the complaint Ex. PW-1/A, but complainant has stated in her cross FIR No. 391/2007 State Vs Sharda Shah 10 examination that she had told the same facts to the police. It has to be borne in mind that the complainant is a labourer and is working in jhuggi and she might have not known as to what is written by the IO. In the present complaint the complainant has stated that she had gone to the police on the same date. PW-4 has stated that she had come on 7.6.2007 in the night at about 9.15pm. Ld. Counsel submits that since there is a delay of about one day in registration of FIR the accused is entitled to benefit of doubt. Complainant in her statement has categorically stated that the incident is of 6.6.2007 and she went to the PS on that very day in the night itself. Therefore, there is no reason to disbelieve her testimony. The proceedings conducted by the IO are not under the control of the complainant who is lady and therefore the lapses on his part to record the statement in time would not entitle the accused to enjoy any benefit therefrom. Now let us assess the present facts in view of Section 354 IPC. Section 354 is reproduced here for the same of convenience.
" A person whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, he commits an offence punishable U/s 354 IPC."
11. In view of Ram Das Vs State of Bengal AIR 1954 SC 711:
1954 Cr.LJ, 1793, for proving the offence U/s 354 IPC the following FIR No. 391/2007 State Vs Sharda Shah 11 ingredients shall be fullfilled:-
1) Assault or use of criminal force against the complainant
2) Assault or use of criminal force is done with an intention to outrage her modesty.
12. In the present case it has not been proved that the accused had laid himself with the complainant however with the intention to outrage her modesty of the complainant. Though from the evidence it can be gathered that there is a doubt over the fact that accused had caught hold of the hand of the complainant or not but the fact that he came and laid down alongwith the complainant on the table used for ironing the clothes has been well proved beyond any reasonable doubt. The aforesaid act falls within Section 509 IPC. Section 509 IPC is produced herein below for the purpose of convenience.
"A person whoever, intends 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, he commits an offence punishable U/s 509 IPC."
FIR No. 391/2007 State Vs Sharda Shah 12
13. The factum of lying down with the complainant on the same table deliberately amounts to his act intention to insult the modesty of the complainant.
14. Since Section 509 IPC is the minor offence for the offence U/s 354 IPC, accordingly, accused is convicted for the minor offence U/s 509 IPC in case FIR No. 391/2007 PS, Preet Vihar. Let he be heard on the point of sentence.
Announced in the open court (Vandana Jain)
On 1.3.2012 M.M./Mahila Court (E)
FIR No. 391/2007 State Vs Sharda Shah
13
FIR NO.: 391/2007
P.S.: Preet Vihar
U/Section 354 - IPC
1.3.2012
Present: Ld. APP for State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused is convicted for the minor offence U/s 509 IPC, in the present case FIR. Be heard on the point of sentence on 6.3.2012.
(Vandana Jain)
MM/Mahila Court (E)/1.3.2012
FIR No. 391/2007 State Vs Sharda Shah