Delhi District Court
State vs . (1) Laxmi Devi W/O. Sh. Mohinder Singh on 25 January, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R821062007
Sessions Case No. 20/13
Date of Institution: 28.11.06
Date of transfer to this court: 14.01.13
Date on which reserved for orders: 18.01.14
Date of delivery of order: 25.01.14
State v/s. (1) Laxmi Devi W/o. Sh. Mohinder Singh
R/o. 1/13, Gali No.5, Rani Garden
Shastri Nagar, Delhi31.
(2) Hoshiyar Singh S/o. Sh. Keshav Dev
R/o. 1/13, Gali No.5, Rani Garden
Shastri Nagar, Delhi31.
FIR No. 274/06
PS. Geeta colony
U/s. 323/354/34 IPC
JUDGMENT:
1. On 28.07.06 information regarding a quarrel at H.No.1/8, Gali No.5, Rani Garden Shastri Nagar, Delhi, was received, which was reduced into writing as DD no. 27A at PS Geeta Colony. Head Constable Ombir Singh went to the spot where he met complainant Babita, who informed him that they had suffered injuries in the quarrel. Complainant and her mother Joginderi Verma were got medically examined FIR No. 274/06, PS.Geeta Colony Page 1 of 11 St. Vs. Laxmi Devi etc. vide MLCs No. 2702/06 and 2641/06, however, the two did not give any statement on 22.07.06. Later, on 22.08.06 the complainant gave her statement, wherein she alleged that she and her husband Somdutt had come to her mother's house on 28.07.06 at around 7 pm. Her husband had parked his motorcycle at some distance from the house of Mahender. Wife of Mahender, accused Laxmi came out and started abusing them and said that they (accused) park the vehicle in front of her house while lay down cots in front of their own house. The complainant tried to intervene, however, accused Hoshiyar came alongwith two more persons, touched her inappropriately causing her injury on her chest and also beat her, her husband and her mother. She says that the FIR was not lodged initially as accused Laxmi had threatened them that if complainant filed any complaint against her, she will file a case under SC/ST provisions against her. However, later on she came to know that accused had already given a complaint against them, and so she also gave her complaint to the police. On the basis of this complaint, an FIR u/s 323/354/34 IPC was registered against accused Laxmi Devi and Hoshiyar Singh. Chargesheet was filed.
2. Notice u/s. 251 Cr.P.C was framed against Hosiyar Singh for having committed offences u/s. 354/323 IPC and against both the accused Hoshiyar Singh & Laxmi Devi u/s. 323/34 IPC.
3. Prosecution to prove its case examined five witnesses.
FIR No. 274/06, PS.Geeta Colony Page 2 of 11 St. Vs. Laxmi Devi etc.
4. PW1 Dr. Poonam Sharma has proved the MLCs Ex.PW1/A and PW1/B of Babita and Joginderi Devi respectively. She has not been crossexamined.
5. PW2 is the complainant and she has deposed in terms of her complaint. The complaint has been exhibited as Ex.PW2/A and the seizure memo of the shirt worn by her at the time of incident is Ex.PW2/B. The complainant in her statement in the court added that the motorcycle was parked by her husband in front of her mother's house and a vegetable hawker had parked the motorcycle in front of house of accused and that they were not aware of this fact. She says that her husband had arrived at the spot later on. Her husband stated to the complainant that they may quarrel but should not say anything to his son as Laxmi had threatened to kill the son. She says that Laxmi had slapped her husband. She says that husband of Laxmi had told her that he was brother of Mayawati and that they will file a report against the complainant under SC/ST Act in case she lodged a complaint in police against his wife and therefore, she came back without lodging a case. Thereafter, a settlement was arrived at with the intervention of respectable members of society and the settlement was recorded on stamp paper. On 22.08.06, however, she came to know that a case has been registered against them by Mahender and thereafter, she gave a complaint.
In her crossexamination the witness stated that she might not have disclosed the fact of vegetable vendor having parked the motorcycle in front of the house of Laxmi Devi, to the police. Her statement that Laxmi Devi had started FIR No. 274/06, PS.Geeta Colony Page 3 of 11 St. Vs. Laxmi Devi etc. abusing her mother on seeing the motorcycle parked in front of her house, was got confronted with Ex.PW2/A. The averment regarding holding of breast was got confronted as the words wrong intention were missing from Ex.PW2/A. She stated that she did not remember having told the police about Laxmi Devi's threat to kill her son and about her husband having asked her not to say anything about the child. The copy of kalandara was put to the witness. She, however, pleaded ignorance about the contents of the document though she admitted that her husband was arrested in a case u/s. 107/151 Cr.P.C. She denied the suggestion that at the time of recoding of Kalandara she did not disclose the fact of injury caused to her and outraging her modesty, to the police and volunteered that police had not recorded her statement. Regarding the delay she said that a lot of time was spent on negotiation for settlement with the accused. Attention of the witness was drawn to the wrong mentioning of date/day in the FIR.
6. PW3 Somdutt Verma is the husband of the complainant and his evidence is on the same terms as that of complainant. In his crossexamination he admitted that he was booked in a case u/s. 107/151 Cr.P.C on 29.07.06. He also stated that he had slapped Hoshiyar Singh when he saw him outraging the modesty of his wife. He stated that settlement talks were going on and so there was delay in registration of FIR. He stated that before the Vigilance Department he had apologized due to misrepresentation of facts.
FIR No. 274/06, PS.Geeta Colony Page 4 of 11 St. Vs. Laxmi Devi etc.
7. PW4 is ASI Ombir Singh. He has proved the copy of DD no. 27A as Ex.PW4/A and has deposed that on receiving of the information he had gone to the spot, where he came to know about the circumstances of the case and both the parties were sent to the hospital. When he went to the hospital, both the injured i.e Babita and Joginderi had left while opposite party i.e Laxmi Devi was found admitted in the hospital. The complaint thereafter, was given by Babita on 22.08.06 on which he made the rukka Ex.PW4/B and got the FIR Ex.PW4/D registered. He says that on 29.07.06 Kalandara u/s.107/151 Cr.P.C was prepared and Somdutt was arrested. The copy of Kalandara is Ex.PW4/E and the arrest documents are Ex.PW4/F.
8. PW5 Retired SI Dharampal had prepared the site plan Ex.PW5/A and had seized the shirt of complainant Ex.P1 vide memo Ex.PW2/B. He has proved the arrest memo of Laxmi Devi as Ex.PW5/C and of Hosiyar Singh as Ex.PW5/D and personal search as Ex.PW5/E.
9. In his statement u/s. 313 Cr.P.C the accused persons denied all the facts as incorrect/not in their respective knowledge.
10. The accused examined DW1 C. Jitender, who brought copies of three complaints made by Babita, Joginderi and Somdutt proved these documents as DW1/A colly. The three complaints are signed by aforesaid three persons. Complainant Babita in her statement to DCP East stated that their motorcycle was FIR No. 274/06, PS.Geeta Colony Page 5 of 11 St. Vs. Laxmi Devi etc. parked in front of their own house, a vegetable vendor came and parked it in front of the accused person's house. Confrontation took place between accused Laxmi and them. She says that Laxmi Devi had pushed the motorcycle and had said something to her son because of which a quarrel started. Mahender Singh got a complaint registered against them, however, with the intervention of the people of locality a compromise had arrived at.
11. Ld. Counsel for the accused argued that it is admitted fact that the incident had happened and what needs to be decided is that who was the aggressor. There was a delay in recording of FIR, which was filed to counter the case of the accused. The complainant had apologized in the inquiry. He argued that the complainant had admitted that the motorcycle was parked in front of the house of the accused. The portion regarding vegetable vendor having parked it is an improvement. The police had taken preventive action u/s. 107/151 Cr.P.C against the husband of complainant. There is over writing and manipulation in FIR which appears to be ante dated and ante time. Ld. Counsel argued that the improvement amounts to confrontation and cannot be read in evidence. PW3 has admitted that he had slapped Hosiyar Singh and the portion that he did it after seeing his wife being assaulted is an improvement.
12. Referring to the evidence of DW1 Ld. Counsel argued that there was no allegations, whatsoever regarding assault with intent to insult/outrage the modesty of complainant, in the complaint given by her to DCP. The element of outraging of FIR No. 274/06, PS.Geeta Colony Page 6 of 11 St. Vs. Laxmi Devi etc. modesty was added later on.
13. Arguments were heard. Record perused.
14. It was argued that the complaint was filed in retaliation to the complaint of accused Laxmi Devi. It was filed after 25 days of the incident. The complainant has specifically stated in her evidence that she was being threatened by the accused that a false case under SC/ST Act, will be instituted against her. She because of fear did not file the complaint. Later on she came to know that accused Laxmi had already filed a complaint against her and so she also gave her complaint, which as per her is based on true facts of the case. She also spoke of a settlement because of which she decided not to file the complaint initially.
15. Accused themselves have tendered Ex.DW1/A in their evidence, wherein the complainant stated that a settlement has been arrived at due to intervention of the people of the locality. The plea of the complainant as such, is believable. It is not denied that complainant and her mother inlaw (since deceased) were examined medically on 28.07.06 itself and in both the MLCs the history was given as fight. The allegations are merely substantiating what was recorded on medical documents on the date of incident itself, the delay as such cannot be considered adversely to the case of prosecution.
FIR No. 274/06, PS.Geeta Colony Page 7 of 11 St. Vs. Laxmi Devi etc.
16. There are apparently some corrections in the FIR, however, the dates have been mentioned several times on the same document. The date of 28.07.06, is not disputed by both the parties and therefore, the correction at that place does not affect the merit. Similarly, the date of 22.08.06 is mentioned on the rukka at four points and therefore, correction at one point where it was inadvertently written as 28.07.06, also does not affect the merit.
17. Since the crosscases have been filed by the parties against each other, relevant fact would be as to which out of the two, was the aggressor. The complainant says that though the motorcycle was parked, it was not parked in front of the house of accused. The vegetable vendor had parked the motorcycle in front of the house of accused, who started to quarrel with them. Accused Laxmi pushed the motorcycle and also abused the son of the complainant. The defence of the accused on the other hand is that since the husband of the complainant had parked his motorcycle which prevented accused Laxmi from moving out of her house, when she wanted to buy the vegetable, a quarrel started and the complainant and her family members abused, assaulted and used castiest remarks against the accused Laxmi Devi.
The complainant in her statement to the police stated that Hoshiyar Singh had caught hold of her breast and had touched her body parts in an unwarranted manner. Ex.DW1/A was the first complaint given by her to the DCP East. In the said complaint, the complainant mentioned about pushing of the motorcycle, abuses given by Laxmi Devi to her son and a quarrel. She does not say anything about the assault FIR No. 274/06, PS.Geeta Colony Page 8 of 11 St. Vs. Laxmi Devi etc. to her with an intent to outrage her modesty. In fact she does not mention the name of accused Hoshiyar Singh at all. Admittedly the injuries were found on the chest of the complainant, when her MLC was conducted. The complainant did not explain in her evidence as to what prevented her from giving the true facts to the DCP when she gave a written complaint to him. Unlike at the stage of charge, where the complainant is not required to explain, an explanation was due during the trial, when specific questions were asked in crossexamination. The Kalandra Mark P1 was put to the witness and was tendered in evidence by ASI Ombir Singh. The complainant stated that she cannot say if the Kalandara was silent on the facts mentioned by her in the court, however, mere denial of knowledge of the fact, of which the document ison record would not absolve the complainant from giving an explanation which was due on her as the fact of outraging of modesty was conspicuously missing from the initial complaint.
The Hon'ble Supreme Court in Ram Das Vs. State of West Bengal AIR 1954 SC 711 had held that mere suffering of injuries by the complainant does not become an offence u/s. 354 IPC, the prosecution has to prove the intention and has to specifically prove that the act of the accused was done with specific intent of outraging of modesty. The Hon'ble Supreme Court held that "The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted".
In the present case, the complainant never, before giving her statement to FIR No. 274/06, PS.Geeta Colony Page 9 of 11 St. Vs. Laxmi Devi etc. the police, raised the issue of outraging of modesty. Since this was a quarrel between the two parties and apparently the injuries have been caused to both the parties and the neighbours had also gathered, it cannot be believed that the accused in such a situation, in presence of so many people, would have committed the offence in the manner as is being portrayed by the complainant. The Hon'ble Supreme Court in Ram Das (Supra) had held that in deciding a case u/s. 354 IPC the court must go into the fact that whether the act was done with intent to outrage the modesty or with the knowledge that it would be outraged. On the facts of the said case where the allegation against the appellant were that he had forcibly held the two ladies to his breast, The Hon'ble Supreme Court considering the fact held that whatever the appellant did was with a view to secure a berth for himself and not with a view to outrage the modesty of PW6. It held that the proved facts were not sufficient to support an inference that the appellant was actuated by the intention to outrage the modesty of the complainant. In the present case the version of the complainant regarding outraging of modesty came for the first time in the FIR at a much later stage. No doubt she had scratch marks on her breast, however, as held by Hon'ble Supreme Court, these do not lead to a conclusion that the accused Hoshiyar Singh would have caused these injuries and with the same intent as being attributed to him. It is relevant to note that the crosscases have been filed by the parties against each other and each one is leveling allegations of assault on the other. The complainant in her complaint to DCP has not even mentioned the name of accused Hoshiyar Singh. The Hon'ble Supeme Court has categorically held that not every assault has to be an FIR No. 274/06, PS.Geeta Colony Page 10 of 11 St. Vs. Laxmi Devi etc. assault u/s. 354 IP and an unimpeachable evidence alone can lead to the conclusion that there in fact was an act done with intent of outraging modesty. The absence of any allegation against Hoshiyar Singh and absence of any public witness regarding his bad intention during the incident dilutes the prosecution case on these specific allegations. Accused Hoshiyar Singh is acquitted of the allegation section 354 IPC.
18. Regarding the allegations u/s. 323 IPC, the prosecution has not been able to prove that the accused side was in fact the aggressor. The motorcycle admittedly was parked in front of the house of the accused. The version of the complainant that it was parked there by a vegetable hawker, is an improvement. The quarrel had started because of parking of motorcycle, is admitted by the complainant. The prosecution witness ASI Ombir Singh himself says that accused Laxmi Devi was found admitted in hospital when he went to the hospital. No explanation has come from the complainant side regarding the injuries caused to the accused. Since in a crosscase the most relevant aspect is to conclude who was the aggressor and the evidence on this aspect is doubtful and not categoric, both the accused are given benefit of doubt and are acquitted of allegations u/s. 323/34 IPC. File be consigned to record room. Announced in the open court on 25.01.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) SPL. JUDGE (NDPS) KKD COURTS, DELHI/25.01.14 FIR No. 274/06, PS.Geeta Colony Page 11 of 11 St. Vs. Laxmi Devi etc.