Delhi District Court
State vs . Kumar Brijesh Etc. on 6 September, 2013
FIR No. 347/11 P. S. Okhla
State Vs. Kumar Brijesh etc.
IN THE COURT OF Ms. MONIKA SAROHA :
M.M.(SOUTH EAST DISTRICT), SAKET NEW DELHI
State Vs. Kumar Brijesh etc.
FIR NO. : 347/11
P.S. : Okhla
U.S. : 354/509/34 IPC
JUDGMENT
a. Date of its institution : 23.12.2011
b. Name of the complainant : Ms. Pinki D/o Sh. Radhey Shyam
R/o C79, J.J. Camp Tigri, New
Delhi.
c. Date of commission of
offence : 02.11.2011
d. Name of the accused : (1) Kumar Brijesh S/o Sh.
Subhash kumar Singh R/o
H.No. 10, Lallu Ka Makan,
Harkesh Nagar, OIA PhII,
New Delhi.
(2) Ravikant Pandey S/o Sh.
Tirloki Nath Pandey, R/o
H.No. G28, Harkesh Nagar
OIA PhII, New Delhi.
e. Offence complained of : U/s 354/509/34 IPC
f. Plea of accused : Pleaded not guilty
g. Case reserved for orders : 27.08.2013
h. Final order : Convicted
i Date of such order : 06.09.2013
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FIR No. 347/11 P. S. Okhla
State Vs. Kumar Brijesh etc.
BRIEF FACTS OF THE CASE
The victim in this case is a young girl working in the same office where one of the accused Ravi Pandey worked. The other accused Kumar Brijesh, is a friend of the accused Ravi.
1. It is the case of the prosecution that on 02.11.2011 at about 10.34 am near Honda Showroom Okhla PhaseII, New Delhi (hereinafter referred to as "the spot") both accused in furtherance of their common intention used criminal force upon the complainant with intention to outrage her modesty and they also used obscene words and gestures towards her. It is on these facts that the machinery of criminal justice system came into motion when the victim approached the police with her complaint. An FIR was thereafter registered.
2. After completion of the investigation the charge sheet was filed in the Court. Copies were supplied to both the accused. Thereafter, this court had proceeded to frame charge for offence U/s 354/509/34 IPC on 10.10.2012 to which the accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution was directed to adduce evidence.
The prosecution examined two witnesses. The gist of the deposition of the prosecution witnesses is discussed in the paragraphs that follow: Page No. 2 of 14
FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. EVIDENCE
4. PW1 Ms. Pinki is the complainant. She deposed that on 02.11.2011 at about 09.30 am when she went to her office, accused Ravi Pandey was standing outside the said office along with his 67 friends and stopped her. According to her accused Ravi Pandey caught hold of her hand and also caught her neck and abused her with filthy language i.e. "ma chut, bahan chut, randi ki, idhar aa". Further according to her, public persons gathered there and saved her from there. She goes on to depose that she went inside her office and was asked her to resign because of the nuisance which was created outside the office. She stated that she gave her resignation and came out of the office. She further deposed that on the same day at about 10.15 am, when she came out of the office, accused Ravi Pandey along with his associates came running towards her, caught hold of her hand and pushed her towards behind the truck parked at that place i.e. the spot. She further deposed that the accused Ravi kept his hand around her waist and pulled her towards himself. She stated that the other associates also pushed her due to which she fell down and sustained injuries. About accused Kumar Brijesh, she specifically stated that he also pulled her hair and snatched her mobile phone when she tried to call the police. According to her, later public persons gathered there, therefore Ravi Pandey fled from there but Page No. 3 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. accused Brijesh was apprehended with the help of the public persons. Further she stated that police reached the spot and accused Brijesh was handed over to them after which her statement was recorded by the police which she exhibited as Ex.PW1/A. She further deposed that accused Kumar Brijesh was arrested and his personal search was conducted in her presence vide memos which she exhibited as Ex.PW1/B and 1/C both bearing her signatures at point A. She stated that accused Ravi Pandey was arrested on 30.11.2011 vide memo which she exhibited as Ex.PW1/D bearing her signatures at point A. She added that accused used to abuse her even in the office and also several times gave flying kisses to her and also used to abuse her on her way to house by saying "randi ki idhar aa" and also "ma ki chut, bahan ki chut, randi ki, idhar aa" of which she also made complaint to the incharge of her office but the accused failed to mend his ways.
5. PW2 ASI Ranpal Singh is the Investigating Officer. He deposed that on 02.11.2011 he was posted as ASI in PS OIA and on receiving DD no. 10A he along with Ct. Mahipal went to the spot near Nathu Sweats where complainant Pinki was present along with one person whose name was disclosed as Kumar Brijesh and complainant told him that he along with another accused Ravi Pandey had misbehaved with her. According to him, he then recorded her statement on which he prepared the rukka which he Page No. 4 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. exhibited as Ex.PW2/A bearing his signatures at point A and sent Ct. Mahipal to PS for registration of FIR. Further, according to him he prepared the site plan at the instance of complainant which he exhibited as Ex.PW2/B bearing his signatures at point A. He deposed that accused Brijesh was interrogated and arrested and his personal search was conducted. He stated that Ct. Mahipal came back at the spot along with copy of FIR and original rukka and then they went to the PS. He further stated that on 30.11.2011 accused Ravi Pandey was arrested. Finally, he prepared the challan against the accused persons and filed in the court.
6. Thereafter PE was closed. Statement of accused was recorded u/s 313 CrPC. In his statement u/s 313 CrPC, accused Ravi Pandey admits his presence at the spot and also admitted the fact that he had a quarrel with the victim on the date of incident i.e. on 02.11.2011 but denied that he committed any of the act as mentioned in the complaint while stating that he has been falsely implicated. Accused Kumar Brijesh in his statement u/s 313 CrPC, also admitted his presence at the spot but stated that he was only a part of the crowd. He stated that he himself had seen that accused Ravi hitting the victim with his hand because of which her phone back fell down and he only gave her phone to her.
7. Final arguments as advanced by Ld. APP for the State and Ld. Defence Page No. 5 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. counsels were heard. Coming now to the appreciation of evidence led by the prosecution for it is on the evidence of the prosecution and its strength that the fate of this case depends.
APPRECIATION OF EVIDENCE
8. Coming first to the allegations under Section 354 IPC. To establish the contents of this offence, the prosecution was required to prove that the accused used criminal force upon the victim with intend to outrage her modesty or atleast had the knowledge that his act would result in outraging the modesty of victim. The deposition of the victim before the Court must be analyzed to ascertain if all these ingredients have been met or not.
9. The victim has deposed before the court that on 02.11.2011 at about 10:15am the accused Ravi came running towards her, caught her hand and pushed her behind a truck. She has also stated that at the same time, the accused touched the complainant on her waist and pulled her towards himself. Regarding the conduct of accused Brijesh, she has deposed that he also pulled her hair and snatched her mobile phone when she tried to make a call for help during this incident. She remains firm on this deposition despite being cross examined by the two different counsels for both the accused. She is consistent and coherent in her deposition regarding the manner of commission of offence against her.
Page No. 6 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc.
10. As revealed from the cross examination of the complainant, it is admitted by the defence that the complainant and accused Ravi were working in the same office from where they had resigned together on 02.11.2011. Thus, the presence of accused Ravi at the spot which was outside the office where they were working stands admitted.
11. No other contradiction to the testimony of the sole eyewitness could be brought out. Even in his statement u/s 313 CrPC the accused Ravi has admitted that he was present at the spot on 02.11.2011, where he also met the victim. Thus, his identity and presence at the spot are admitted. Even the accused Brijesh has not denied his presence at the spot. The correct identification by the victim in the Court corroborated by his statement u/s 313 CrPC where he has admitted that he was present at the spot and had given the phone of the victim to her, proves his presence.
12. The only defence taken by accused Ravi upon the allegation against him is that the victim was negligent in her work and this accused used to find shortcomings in her work, therefore, she wanted to teach him a lesson. However, no evidence to establish this defence was brought forward. No record from their office was brought to show the capacity in which they were both working and indeed whether it was a part of the job profile of Ravi to monitor the work of the victim. There is no record of any memos or Page No. 7 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. warnings issued by accused Ravi to the victim on account of her shortcomings. No senior colleague of the accused Ravi was examined to inform the court, if indeed, he had been registering complaints against the inefficient work carried out by the victim. Thus, this defence has gone unsubstantiated and is unbelievable.
13. No material contradiction from the original complaint of the victim i.e. Ex.PW1/A was brought out during her deposition. While it is correct that in the complaint Ex.PW1/A, she has not mentioned in detail the exact manner of commission of offence and has only stated that the accused Ravi caught hold of her hand and committed obscene act against her. However, it has to be kept in mind that this complaint was made by the victim soon after the incident and this complaint is not expected to be a complete encyclopedia of all the facts. It is sufficient if the victim broadly narrates the offence committed against her when she first approaches the police. The complainant has clearly done so as revealed from document Ex.PW1/A.
14. As already mentioned above the presence and identity of accused Brijesh has also been established during trial. In the witness box the victim has clearly deposed that accused Brijesh pulled her hair and snatched her mobile phone when she tried to make a call for her defence. This act by the accused clearly reveals that he was acting in furtherance of the common intention Page No. 8 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. with accused Ravi. Why else he would have pulled the hair of a young lady and snatched her mobile? No enmity between accused Brijesh and the victim has been raised as a defence by accused Brijesh. His only defence is that after the phone of the victim fell when she was hit by Ravi, he had picked and given the phone back to her. If this defence is to be believed without any corroborative evidence, it belies commonsense as to why the victim would implicate a innocent bystander whom she did not even know prior to the incident.
15. Further, the arrest memo of the accused Kumar Brijesh which is Ex.PW1/B has been duly proved by the victim as well as by the IO. This document also shows the presence of the accused Brijesh at the spot.
16. From the acts of the accused, their intention can very well be inferred. There can be no noble intention behind the act of pulling the hand of a young unmarried girl, pulling her towards oneself and putting hands around her waist at the same time. Accused Brijesh was pulling the hair and preventing the victim from using her mobile phone. Thus, it is clear that he also shared the intention with accused. The only intention that can be attributed to both the accused from the circumstances in which they committed the act could be that to outrage the modesty of the victim.
17. Therefore, this court is satisfied that the deposition of the victim is Page No. 9 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. sufficient to establish the guilt of the accused Ravi for offence u/s 354 IPC.
18. Therefore, this Court is satisfied that the prosecution has proved its case beyond reasonable doubt on all material aspects particularly the essential ingredients for offence u/s 354 IPC.
19. Both the Ld. Defence Counsels have raised the argument that no public person has been made a witness in the present proceedings which vitiates the entire investigation. I do not find any merit in this argument. According to the victim, she was alone at the spot when the offence was committed against her. It is clear in her testimony that after she was pulled by Ravi, pushed to the ground and her mobile was snatched by Brijesh, public persons gathered at the spot. Therefore, it is not the case of the prosecution that other persons had also seen the incident. At best, public persons gathered later and apprehended the accused Brijesh. This only seems normal. Crowd usually gathers after 23 minutes of a commotion when people realize that something abnormal is happening around them. The kind of actions described by the complainant can very well take place within this short span of time. This court is aware that no public witness has been joined, however, it is a matter of common knowledge that now a days, public persons are hesitant to become associated with the investigation of a police case. Therefore, it is reasonable that public persons refused to join the Page No. 10 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. investigation. The witness examined by the prosecution supported testimony of each other. Even though no public witness was joined in the investigation, however, in view of latest case law I am of the considered opinion that non joining of the public witness is not fatal to the case of prosecution as no contradiction emerged in the testimony of police witnesses. I have placed my reliance upon judgment 'IZZAZUL VS. STATE (Delhi) 2007 (4) RCR Criminal 315' in which the Hon'ble Delhi High Court held that "The police officials cannot be presumed less or more credible than any other normal public witness. The credibility of public witness is tested in crossexamination. Public witnesses who are related to the victim are normally treated as interested witnesses but it has been time and again held by the courts, that relative witnesses could be credible and trustworthy. Similarly police officials can also be credible and trustworthy as any other witness. The police officials do not suffer from any disability to give evidence and mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness". I have also placed my reliance upon judgment 'TAHIR VS. STATE (Delhi) AIR 1996 SC 3079 in which the Hon'ble Supreme Court held that "No infirmity attach to the testimony of police officials merely because they belong to police force and there is no rule of law or evidence which lays down that conviction cannot Page No. 11 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. be based on the police officials if found reliable unless corroborated by some independent witness. The rule of prudence, however only requires a more careful scrutiny of their evidence since they can be said to be interested in the result of the case projected by them where the evidence of the police officials after careful scrutiny inspires confidence and is found trustworthy and reliable, the conviction can be based on the testimony of the police officials".
20. Whereas public persons could have been made a witness to the arrest of Brijesh since it is the case of the prosecution that public persons had handed him over to the police, however, merely because such persons were not made a witness to the arrest memo, it does not vitiate the entire investigation. This is at best an irregularity on the part of the Investigating Officer for which the testimony of the victim cannot be doubted. The unimpeached testimony of the victim is sufficient to establish the guilt of the accused.
21. Thus, in view of the discussion made above, both the accused are convicted for offence punishable u/s 354/34 IPC.
22. However, the allegations u/s 509 IPC could not be proved by the prosecution. This is so as the charge u/s 509 IPC was framed only qua the incident which occurred at around 10:1510:30pm. Although according to the victim when she appeared in the witness box, she has mentioned that the Page No. 12 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. accused had uttered obscene words towards her in the morning at around 09:30am and had used obscene words prior to her entering her office in the morning. There is no mention in her testimony before the court that the obscene words were also used against her after she came out of the office at around 10:30pm having tendered her resignation. The charge was not framed for the incident of 09:30am as at that time from the complaint Ex.PW1/A, it was not revealed that besides the incident which occurred after the resignation was tendered some other incident had also taken place earlier at 09:30am. Therefore, this Court could not have framed any charges for the earlier incident.
23. No application for alteration of charge was moved by the prosecution at any stage.
24. Thus, it is not the case of the victim that obscene words were used against her on 02.11.2011 when the other acts of using criminal force against her were committed against her.
25. It is unfortunate that while making allegations in the complaint Ex.PW1/A, the victim has only mentioned about the incident which took place after she had resigned. However, she has been able to prove before the Court the incident for which she had brought the matter to the notice of the police.
Page No. 13 of 14 FIR No. 347/11 P. S. Okhla State Vs. Kumar Brijesh etc. FINAL ORDER
26. In view of the discussion made above, both the accused are convicted of the offence punishable u/s 354 IPC and acquitted of the offence punishable u/s 509 IPC.
27. Let accused be heard separately on the point of sentence.
28. Copy of this judgment be provided to the LAC representing the accused.
Announced and dictated in (MONIKA SAROHA)
the open Court on 06.09.2013 MM/Mahila Court/SED/Saket
New Delhi.
Page No. 14 of 14