Delhi District Court
State vs . Amit S/O Madan on 17 March, 2015
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL SESSIONS JUDGE-01 & SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 239/2013
Under Sections : 354-D/341/506 IPC & 12 POCSO Act
Police Station : Nand Nagri
Sessions Case No. : 52/2013
Unique I.D. No. : 02402R0242332013
In the matter of :-
STATE Vs. AMIT S/o Madan
R/o Flat No. 83, MCD Flats,
MCD Dispensary, D-Block,
Nand Nagri, Delhi. ........Accused
Date of institution : 12.07.2013
Date of reserving judgment : 17.03.2015
Date of pronouncement : 17.03.2015
JUDGMENT
1. Accused Amit S/o Madan was sent up before this court by the police of PS Nand Nagri, for facing trial for offences punishable u/s 354- D/341/506 IPC & 12 POCSO Act on the allegations that on 09.05.2013 at about 05.00 PM, near Railway Crossing, D-2 Block, Nand Nagri, within the jurisdiction of PS Nand Nagri, accused followed the minor prosecutrix (aged 15 years) with intention to outrage her modesty, wrongfully restrained her and threatened her. Facts of the case as per the prosecution are that the minor prosecutrix went to a shop at D-2 Block, Nand Nagri alongwith her friend Shivani St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 1 of Pages 11 to get her small gas cylinder repaired and the accused who was standing nearby, started laughing at them. Both the girls ignored him and when they left the shop after getting the gas cylinder repaired, accused started following them and after some distance he asked them to stop and threatened the minor prosecutrix to meet him at 06:00 pm on the same day at Hanuman Mandir Railway Fatak and in case she failed to come there, he would kill her. The prosecutrix got terrified and raised noise at which public persons gathered there. Accused tried to run away but he was chased by the public persons and was caught hold and given beatings by them. Someone informed the mother of the prosecutrix, who reached there and called the PCR. Police reached there, apprehended the accused, recorded the statement of the prosecutrix and took the accused and present case FIR was registered u/s 354-D/341/506 IPC and u/s 12 POCSO Act. ASI Sufal Ram was assigned the investigation of the case. IO prepared site-plan of place of incident at the instance of prosecutrix; recorded statement of witnesses u/s 161 Cr.PC; arrested the accused in the present case; produced the accused before the court from where he was remanded to judicial custody. After completion of investigation, charge-sheet was filed.
2. Vide order dated 13.08.2013, my Ld. Predecessor framed charge u/s 354-D/341/506 IPC and u/s 12 of POCSO Act against the accused to which he pleaded not guilty and claimed trial.
3. The prosecution in support of its case examined following witnesses:-
i). PW1 the minor victim/ prosecutrix proved her complaint/statement given to police as Ex.PW1/A besides site plan Ex.PW1/B and arrest memo of accused Ex.PW1/C. She also identified the St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 2 of Pages 11 accused.
ii). PW2 Mangal Sen Gupta, the shopkeeper is the eye-witness of alleged incident and in his testimony, he supported the case of prosecution.
iii). PW3 HC Bala Saheb had reached at the spot on receipt of information of the alleged incident vide DD No. 51-B. He called W/HC Ranjita at the spot, joined investigation with her and then with ASI Sufal Ram who had also reached at the spot on being marked the further investigation after registration of present case.
iv).PW4 Ct. Amit had accompanied PW3 HC Bala Saheb to the spot on receipt of information of the alleged incident vide DD No. 51-B. He had taken the Rukka (prepared by HC Bala Saheb) to PS and got registered the present case FIR.
v). PW5 SI Vinod Kumar/Duty Officer proved DD No. 51B Ex.PW5/A and present case FIR Ex.PW5/B and his endorsement Ex.PW5/C on the Rukka.
vi).PW5 Ram Prakash Singh (inadvertently given No. as PW5 instead of PW6), the teacher from Govt. Girls Sr. Sec. School, A Block, Nand Nagri, proved the date of birth of prosecutrix as 18.12.1997, as per school admission register Ex. PW5/A. He also proved certificate Ex.PW5/B, issued by Vice Principal of School certifying the aforesaid date of birth of prosecutrix.
vii).PW6 Smt. Sumitra, the mother of the prosecutrix supported the case of prosecution.
viii).ASI Sufal Ram, the Investigating Officer deposed regarding the investigation conducted by him and proved site plan of the place of incident Ex.PW1/B, arrest memo of accused Ex.PW1/C, personal search memo of accused Ex.PW1/G.
4. The eye-witness Shivani who was accompanying the prosecutrix at the time of alleged incident was not traceable and therefore, ld. Addl.
St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 3 of Pages 11 PP dropped this witness and PE was closed.
5. Statement of accused was recorded u/s 313 Cr.PC wherein he stated that he is innocent and has been falsely implicated in the present case. He stated that he is handicapped with 80% disability of lower limbs due to which he is not able to walk properly. On the day of alleged incident, he was going to purchase tomato and Dhaniya on his bicycle and his bicycle accidentally got touched with one person who gave beatings to him due to which he (accused) sustained injury in his left ear. He was taken to PS Nand Nagri where he came to know the name of that person as Kaley. Said Kaley called the prosecutrix at PS and her parents made the prosecutrix to make statement against him and as such, he was falsely implicated in the present case. He stated that due to beatings given by said Kaley, he sustained injury for which he was medically examined at GTB Hospital vide MLC No. B-1777/13, dated 10.05.2013. Accused opted to lead defence evidence and examined himself as DW1 and reiterated the above facts in his defence.
6. I have heard arguments from Ld. Addl. Public Prosecutor and heard the accused in person and carefully gone through the record and appreciated the testimony of material witnesses.
7. PW1 minor prosecutrix/ complainant is the most crucial. She repeated allegations against the accused as per her complaint/statement given to police. PW1 deposed that accused followed her, asked her to stop and then further asked her to meet him at Hanuman Mandir Fatak at 06.00 PM on the same day and in case, she failed to come, he would kill her at which she got terrified and raised noise. People gathered St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 4 of Pages 11 there and caught hold off the accused and gave him beatings. This witness has was cross-examined and in the cross-examination, an attempt was made by ld. defence counsel to establish that the accused had been falsely implicated in this case as there was a quarrel between accused and one Kaley who gave beatings to the accused. However, PW1 categorically denied the suggestion that she was deposing falsely at the instance of Kaley and got the accused falsely implicated in the present case. She admitted that Kaley had given beatings to the accused but she also stated in her examination- in-chief that public persons had collected at the spot and gave beatings to the accused and Kaley was one of them.
8. PW2 Mangal Sen Gupta has corroborated the testimony of PW1/ prosecutrix/complainant. PW2 was the owner of shop where the prosecutrix alongwith her friend had gone to get the small gas cylinder repaired. This witness (PW2) had categorically stated that he noticed that accused was following the girls and from the distance, he saw that the prosecutrix raising alarm upon which he reached at the spot. He also deposed that the accused had tried to run away from the spot but public persons apprehended him and gave beating to him. He also stated that mother of the prosecutrix had come to the spot and she called the police through his mobile phone. This witness has also been cross-examined by ld. defence counsel but nothing material could come on record which could attack the credibility of this witness.
9. PW-6 Smt. Sumitra, mother of the prosecutrix deposed that she had come at the spot after someone informed her that her daughter/ prosecutrix was being teased by someone and he asked her to go to the market. On reaching the spot, she saw her daughter weeping and St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 5 of Pages 11 accused being apprehended by public persons. She informed the police regarding the incident.
Other witnesses are police witness who joined/completed the investigation and stood by the evidence collected during the investigation.
10. Upon perusal of the evidence as recorded in this case, an attempt has been made by the accused to establish that he was involved in an accident with one Kaley who gave him (accused) beatings and said Kaley apprehended the accused, gave beatings to him and in order to come out of it, he got the accused falsely implicated in the present case. However, the evidence of an independent witness i.e. PW2 Sh. Mangal Sen Gupta, the shopkeeper demolishes the case of accused with respect to the false implication as the said witness has categorically stated that he had noticed the accused following the girls and thereafter he heard the prosecutrix raising alarm on which he reached at the spot and saw that public persona had caught hold the accused. This witness (PW2) as well as prosecutrix (PW1) stood by their testimony and their credibility could not be shaken by Ld. defence counsel in the cross examination.
11. However, at this stage, I need to examine whether the offences u/s 354-D and section 12 POCSO Act, 2012 are made out against the accused or not. The relevant provision of section 354-D (1) with respect to the allegations herein, is as under : -
"Stalking.- (1) Any man who -
i). follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 6 of Pages 11 clear indication of disinterest by such woman; or Similarly, section 11 (i) of POCSO Act (which is punishable u/s 12 of POCSO Act) defines sexual harassment, as under:-
Sexual harassment.- A person is said to commit sexual harassment upon a child when such person with sexual intent,
(i). utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii)............. (other part of the definition does not cover the case of the prosecution and therefore, not being reproduced here).
12. From the definition of section 354-D IPC, it is clear that the offence of stalking is following a woman repeatedly despite clear indication of disinterest of such woman. In the present case, there is only a single incident of following a woman and and even as per case of prosecution, no repeated attempt of following the prosecutrix was ever made by the accused in the past and therefore, I am of the opinion that offence u/s 354-D IPC is not proved against the accused and therefore, accused is acquitted of the said offence.
Similarly, for commission of offence u/s 11 POCSO Act, punishable u/s 12 POCSO Act, there have to be utterances of any word, sound or gesture from the accused with sexual intent towards the child. On looking at the facts of the present case, it is seen that prosecutrix in her testimony and in the statement given to the police, had not uttered St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 7 of Pages 11 a single word stating that accused had any sexual intent. However, in the statement u/s 161 Cr.PC of Shivani, the friend of prosecutrix, who was accompanying the prosecutrix at the time of alleged incident, had stated that accused was seeing them with bad intention but said Shivani had not appeared before the court to support the said allegation as she was not traceable. Therefore, I do not find any single word stated by the prosecutrix or any other witness regarding sexual intent of the accused and therefore, I am of the considered opinion that section 12 POCSO Act is not proved against the accused and accused is entitled for acquittal for said charge. Hence, accused is acquitted of the offences u/s 12 POCSO Act.
13. Now coming to the charge framed for offences u/s 341 and 506 IPC, I am of the considered opinion that keeping in view the evidence lead by the prosecution, offences under said sections stand proved against the accused for the simple reason that PW1 prosecutrix categorically stated that the accused tried to follow her and directed her to meet him at Hanuman Mandir Fatak at 06.00 PM on the same day and in case, she failed to meet him, she would be killed. This witness (PW1) has been cross-examined but she categorically denied the suggestion that the accused has been falsely implicated in the present case. This witness has also been supported by the independent witness PW2 who is the shopkeeper at whose shop prosecutrix had gone to get the small gas cylinder repaired. PW1 deposed that he noticed the accused following the prosecutrix and upon her raising alarm, accused was apprehended by the public persons. This witness was also cross-examined but nothing material could come out to discredit the witness. Defence taken by the accused that he had met with an St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 8 of Pages 11 accident with one Kaley who called the prosecutrix and got him falsely implicated in the present case, cannot be believed as the accused did not produce any witness to prove the said fact. There is no reason for the independent witness i.e. PW2 the shopkeeper to depose falsely against the accused and even instead cross-examination of this witness could not discredit the evidence given by him before the court. Therefore, offences u/s 341/506 IPC stand proved against the accused. Accordingly, accused Amit is convicted for commission of offences u/s 341/506 IPC.
Put up for arguments on the point of sentence at 02.00 PM today.
Announced in the open court today on 17th March, 2015 (SIDHARTH SHARMA) Addl. Sessions Judge-01 & Spl. Judge (NDPS) Karkardooma Courts/Shahdara Distt./Delhi St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 9 of Pages 11 IN THE COURT OF SH. SIDHARTH SHARMA ADDITIONAL SESSIONS JUDGE-01 & SPECIAL JUDGE (NDPS) SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI FIR No. : 239/2013 Under Sections : 354-D/341/506 IPC & 12 POCSO Act Police Station : Nand Nagri Sessions Case No. : 52/2013 Unique I.D. No. : 02402R0242332013 In the matter of :-
STATE Vs. AMIT S/o Madan
R/o Flat No. 83, MCD Flats,
MCD Dispensary, D-Block,
Nand Nagri, Delhi. .........Convict
ORDER ON SENTENCE
1. Vide my separate judgment dated 17.03.2015, accused Amit has been convicted for commission of offences punishable u/s 341/506 IPC.
2. I have heard submissions on the point of sentence from ld. Additional Public Prosecutor and convict in person.
3. Convict has pleaded for leniency stating that he is the only bread-earner of his family and has responsibility of his widow mother. He states that he is a handicapped person with 80% disability of lower limbs and is not able even to walk properly. He has placed on record certificate of disability in this regard. He further states that he has been taking taking treatment from IHBAS (Institute of Human Behaviour and Allied Sciences), Dilshad Garden, Delhi, as he is suffering from some mental problem and has filed documents in this regard. He states that he has spent more than two months in judicial custody i.e. w.e.f. 10.05.2013 till St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 10 of Pages 11 19.07.2013 after his arrest in this case.
4. The convict has been held guilty and is convicted for commission of offences punishable u/s 341/506 IPC whereas he has been acquitted for offences punishable u/s 354-D IPC and u/s 12 POCSO Act. Perusal of record reveals that convict Amit has remained in judicial custody w.e.f. 10.05.2013 till 19.07.2013 i.e. for more than two months. Convict has also placed on record a handicap-certificate showing 80% disability of his lower limbs. I have also noticed this fact that accused is not able to walk properly. Document regarding treatment of accused from IHBAS has also been placed on record at the time of arguments on his bail application.
5. Keeping in view the above facts, the interest of justice shall be met if the convict Amit is sentenced to undergo imprisonment for the period already suffered by him in jail. Ordered accordingly. Convict is on bail. His bail bond is cancelled. Surety stands discharged.
6. Copy of 'judgment' and this 'order on sentence' be given to the convict free of cost.
Announced in the open court
today on 17th March, 2015 (SIDHARTH SHARMA)
Addl. Sessions Judge-01 & Spl. Judge (NDPS)
Karkardooma Courts/Shahdara Distt./Delhi
St. Vs. Amit FIR No. 239/2013, PS Nand Nagri 11 of Pages 11