Delhi District Court
State vs . Subhash Kumar & Anr. on 19 May, 2016
IN THE COURT OF MS. CHARU GUPTA, METROPOLITAN MAGISTRATE
MAHILA COURT (SOUTH EAST), SAKET COURTS, NEW DELHI
FIR NO: 210/10
PS: H.N. Din
U/s 354/451/323/34 IPC
State Vs. Subhash Kumar & Anr.
JUDGMENT
Date of institution : 04.05.2011
Name of the complainant : Ms. Archana Devi
Name & address of the accused : 1. Subhash Kumar
S/o Late Sh. Gyan Chand
R/o 88D, Bhagwan Nagar,
New Delhi.
2. Laxmi Narayan
S/o Sh. Jeet Singh
R/o 6, Bhogal Road, Jangpura,
New Delhi.
3. Vinod Kumar
S/o Sh. Khushi Ram
R/o 17, Summon Bazar,Bhogal
Jangpura, New Delhi.
Offence Complained of : U/s 354/451/323/34 IPC
Plea of the accused person : Pleaded not guilty
Final Order : Convicted
Date of arguments : 04.04.2016
Date of announcing of order : 19.05.2016
FIR No. 210/10 State Vs. Subhash Kumar & Anr. 1/12
BRIEF FACTS:
1. Briefly, the case of prosecution is that on 28.09.2010 at about 2.45 p.m. at the house of complainant (H.No. 25/2, Summon Bazar, Bhogal, Hazrat Nizammudin, New Delhi), accused Subhash, Laxmi Narayan and Vinod, in furtherance of their common intentions, touched the complainant with intention to outrage her modesty and voluntarily caused simple hurt to the complainant after committing house trespass.
2. As per the complaint of the complainant dated 06.10.2010, on 28.09.2010 in the afternoon, while complainant was sitting along with her husband on stairs outside the house, accused Subhash, Vinod and Laxminarayan came and started breaking the stairs and abusing them. When the husband of the complainant questioned the accused persons, they abused and threatened and beat the complainant and her husband. This resulted in an altercation between the accused persons and her husband and her husband was pushed by the accused persons. When complainant tried to rescue her husband, accused Subhash held the breast of the complainant and accused Vinod and Laxminarayan pushed her on the ground and accused Subhash gave kick blow on the breast of the complainant. The complainant ran towards her house in pain to rescue herself but all the accused persons entered her house and dragged the complainant out to her hair and started hitting her with kicks and fists blows resulting in injury to the complainant. Complainant was then dragged out of her house when her jeth Ram Kishan and jethani Sheela rescued her. In the meantime, brother of accused Vinod namely Trilok FIR No. 210/10 State Vs. Subhash Kumar & Anr. 2/12 and his wife Manju and their son Kaku and wife of accused Vinod namely Chitra started beating them.
3. Upon her written complaint, an FIR of the incident dated 28.09.2010 was lodged and the matter was investigated. Accused persons were chargesheeted. Chargesheet was filed before the court on 04.05.2011. The court took cognizance and summoned the accused persons. Accused persons appeared and were supplied with copy of chargesheet. On 17.02.2012, Charge U/s 354/451/323/34 IPC was framed against the accused persons. Accused persons pleaded not guilty and claimed trial and accordingly case was proceeded with prosecution evidence.
4. In support of its case, prosecution examined 3 public witnesses and 2 official witnesses.
Complainant Ms. Archana was examined as PW1. She deposed that on 28.09.2010 she was present in her house. At around 2.30 pm, accused Subhash, Vinod and Laxmi came to her house and at that time she was sitting on the stairs near the ground floor of her house. All the three accused persons started damaging the stair case which was under
construction with their legs by kicking the bricks. When her husband objected to their illegal act, Subhash threatened that they would first break the staircase, then him and his wife. They started quarreling with husband of complainant and pushed him. When she tried to save her husband, accused Subhash caught hold of her breast. Vinod and Laxmi pushed her to the ground and Subhash kicked on her breast. In order to FIR No. 210/10 State Vs. Subhash Kumar & Anr. 3/12 save herself, she ran into her house. All the accused persons entered her house and brought her out of her house by pulling her hairs and again gave her beatings by fist blows. She deposed that hearing the noise, neighbours and her jeth and jethani, who lived nearby, also came there and tried to save. The relatives of Vinod who were living closeby also came there. Wife of Vinod namely Chitra, brother of Vinod namely Trilok, Trilok's son namely Kaku also came. Thereafter they called the police on 100 number and went to PP Jangpura. She and her son Dinesh were taken to AIIMS Trauma Centre where they were medically examined and treated. Dinesh had sustained injury on his hand which was inflicted by Kaku by his hockey stick. They returned to their house from the hospital. No case was registered at PP Jaungpura therefore she went to DCP office and gave a written complaint. Thereafter statement of complainant was recorded in the PS. She correctly identified the accused. She was duly cross examined by defence counsel.
Sh. Ram Kishan was examined as PW 2. He deposed that the incident occurred on 28.09.2010 at around 2.30 pm when he was in his house. His younger brother Prakash Chand told him that all the accused were breaking the staircase. When he tried to stop accused persons, accused Vinod pushed him and his wife. Later, they got up then lot of public was gathered. He further deposed that accused persons pulled the hair of complainant and dragged her down. Then family of Vinod i.e. his wife, brother and bhatija and bhabi also came. He was duly cross examined by defence counsel.
FIR No. 210/10 State Vs. Subhash Kumar & Anr. 4/12 Smt. Sheela Devi was examined as PW3. She deposed that she did not remember the date and day and year of the incident. She deposed that she was present along with her husband and sister in law (Dewrani) and husband's brothers. On the day of incident at about 2.30 pm Subhash came along with Vinod and Laxmi at their house and Subhash started damaging the staircase, by kicking the bricks. Then her dewar i.e. husband of the complainant called her. She came down from the first floor. When she asked about the above said facts, accused Subhash pushed husband of complainant. When she tried to save her dewar i.e. husband of complainant, accused Laxmi pushed her and she fell down and she was saved by her daughter Pushpa. Her husband, Ram Kishan was present at the spot and was pushed by accused Vinod. She further deposed that at the same time, accused Subhash kicked the complainant by foot on her breast. Therefore, wife of Vinod and his sisterinlaw caught hold of the hands of complainant. Thereafter, neighbours came and intervened the matter and saved all of them and gave beatings to the accused persons. She deposed that Parkash called at 100 number. Police came and she accompanied the police to the police post. She was duly cross examined by the defence counsel.
ASI Nanak Chand was examined as PW 4. He deposed that on dated 28.09.2010 he was posted as ASI at PP Jangpura, PS H.N.Din. On that day he was on emergency duty since 8.00am to 8.00pm and on that day received DD entry no. 17 PP Jangpura. He along with Ct. Jaibeer reached at the spot, where they met complainant and her husband. He further deposed that on 06.10.10, he received a written complaint. On the basis FIR No. 210/10 State Vs. Subhash Kumar & Anr. 5/12 of the complaint he prepared Rukka and the same was handed over to Ct.
Jaibeer for registration of FIR. After that, he reached at the spot. He prepared the site plan at the instance of complainant. He thereafter arrested accused persons and also conducted personal search. During investigation, he prepared challan and filed the same before court. He was duly cross examined by the defence counsel.
Dr. Chetan was examined as PW 5. He deposed that he had not worked with doctor Dharmender Kumar Gupta and Imran Ali who had prepared MLCs no.229013 and 229012. He was not cross examined by counsel for accused.
5. Thereafter, PE was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence were put to the accused. Accused persons denied the allegations of prosecution as false and pleaded false implication and lead defence evidence.
6. In support of their defence, accused Subhash examined himself as DW1, accused Laxmi examined himself as DW2 and accused Vinod examined himself as DW3. DW1 Subhash deposed that he had entered into a collaboration agreement with husband of the complainant on 29.08.2008 to construct a basement, ground floor, first floor, second floor and third floor for husband of the complainant. After construction of the basement, ground floor, first floor and second floor, husband of the complainant declined construction of third floor and demanded money for the construction. He was given Rs.7,80,000/ in two installments on FIR No. 210/10 State Vs. Subhash Kumar & Anr. 6/12 18.12.2008 and thereafter on 31.01.2010. After receiving the amount he and his family member disputed the same and prevented him from entering in the basement and the first floor and forced the accused to construct a room on the third floor. Collaboration agreement has been exhibited as DW1/A. It is deposed that complainant quarreled with the accused and their labour for preventing them from entering the building. Complaint in this regard has been exhibited as Ex. DW1/B. Collaboration agreement entered by the accused with one Ram Kishan (brother of husband of the complainant) is exhibited as Ex. DW1/C. It is deposed that the complainant has filed false case to extract money and grab share of the accused in the basement and first floor.
DW 2 Laxmi Narayan deposed that one Dinesh Kumar (son of the complainant) and the complainant owed him a sum of Rs.95,000/ which was given as a friendly loan. Dinesh Kumar issued a cheque in lieu of the said loan which was dishonoured and a case U/s 138 of NI Act has been filed by DW2 against the son of the complainant. It is deposed that in order to prevent DW2 from taking legal action against the son of the complainant, complainant lodged the present case. DW3 Vinod deposed that the husband of the complainant is known to him since childhood. He and accused Subhash entered into collaboration agreement with the husband of complainant namely Prakash Chand as per which DW2 and Subhash received ownership rights of the basement and first floor in consideration for constructing second floor of the house of the husband of complainant. It is deposed that third floor of the house was not constructed at request of Prakash Chand and in lieu thereof, Rs.
FIR No. 210/10 State Vs. Subhash Kumar & Anr. 7/12 1,80,000/ was paid to the complainant. Copy of the same is Ex.DW3/A. After some days, Prakash Chand filed a civil suit against DW3 and Subhash Chand alleging non construction of third floor. The suit was compromised upon payment of Rs.2,20,000/ to husband of the complainant vide Ex.DW3/B. A collaboration agreement was also entered with one Ram Kishan (brother of Prakash Chand) vide which Rs. 1,80,000/ were paid as settlement amount. Same is Ex.DW3/C. Despite settlement, Prakash Chand started creating hindrance in sale of basement and first floor to proposed byers and on the date of incident, in the presence of labour and mason, started raising a wall in front of shutter and dropping the gate to prevent entry into the basement. On this DW3 and accused Laxmi arrived at the spot and were prevented by Prakash Chand from entering the premises. Accused Subhash was called to the spot by him. Thereafter, other family members of Prakash Chand arrived and gave beatings to accused Laxmi. DW3 called police and a settlement took place but the complainant later, lodged a false complaint. DW1, DW2 and DW3 were duly cross examined by Ld. APP.
7. DE was closed. Thereafter, final arguments were advanced by defence counsels and Ld. APP. I have heard the submissions and carefully scrutinized the records. Upon careful appraisal of the facts and circumstances of the present case, in light of evidence adduced and legal proposition of law, this court has reached to the following conclusion: COURT OBSERVATIONS:
FIR No. 210/10 State Vs. Subhash Kumar & Anr. 8/12
8. The germane of the present complaint is an incident dated 28.09.2010 which, as per the complainant, was not registered as a complaint by the police compelling the complainant to give her written complaint dated 06.10.2010. As per the complaint, accused Subhash outrage the modesty of the complainant by grabbing her breast while accused Vinod and Laxmi pushed her on the ground and accused Subhash gave kick blow on her breast and when complainant tried to rescue herself, all the three entered her house and pulled and dragged her by her hair and gave kick and fist blows.
9. The primary defence of the accused persons is that the complaint is false and motivated on account of the fact that the husband of the complainant as well as the brotherinlaw of the complainant were parties to a collaboration agreement with the accused persons and as the former did not intend to comply with the agreement and extort money, they filed present complaint through the complainant. It is also one of the defences of the accused persons that the son of the complainant owed Rs.95,000/ to accused Laxmi Narayan and in order to avoid his liability to return the money, lodged false complaint through his mother i.e. complainant.
10. It is seen that the complainant has throughout supported the case of prosecution and reiterated all the allegations leveled by her in her written complaint Ex.PW1/A against the accused persons in her testimony as PW1. Despite thorough cross examination, accused persons could not cite any material contradiction in her deposition. The only fact that there FIR No. 210/10 State Vs. Subhash Kumar & Anr. 9/12 existed a collaboration agreement between the husband of the complainant and the accused persons or that the husband of the complainant committed a breach of the same or prevented the accused from entering the premises which they assumed to have right to, is no ground to justify beating of the complainant or grabbing her breast and brutally dragging her by her hair from her house. For similar reason even if it is assumed that the son of the complainant owed any money to one of the accused persons, it would not justify raising of a presumption against the complainant of deposing falsely to protect her son. MLCs on record mark M1 and M2 reveals simple injury. Even otherwise, causing of simple hurt by kicks or fist blows would not necessarily require existence of any injury mark on the body of the victim. Reliance is placed upon by the Hon'ble Supreme Court of India in Abdul Sayed Vs. State of MP (2010) 10 SCC 259: "The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit to discredit an injured witness".
11. As per the defence, there is no apparent cause or direct dispute between the accused persons and the complainant and as such presumably no FIR No. 210/10 State Vs. Subhash Kumar & Anr. 10/12 plausible reason for the complainant to have leveled false allegations of outraging of her modesty and of being beaten by the accused persons. Infact, version of DW3 that all the accused persons were present on the spot on the date of incident and were allegedly been prevented to enter the basement corroborates the possibility of an altercation to have taken place on the spot and thus, the possibility of complainant being beaten or dragged by her hair and kicked on her breast cannot be ruled out.
12. Testimony of PW 2 also corroborates prosecution version and supports allegations of complainant/ PW1 being dragged by her hair and beating her. He has also stood firm on his version despite cross examination and no apparent inconsistency is found in his testimony. This court however is not inclined to believe testimony PW 3 Smt. Sheela Devi in so far as PW 3 has deposed about the details of the incident which as per the prosecution itself, did not occur in her presence. Her testimony also carries material improvements which cannot be relied upon however has deposed nothing destructive to the testimony of PW1.
13. Hon'ble Supreme Court has observed in State of Punjab Vs. Major Singh 1967 Cr.l.J 1 (SC) that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. In the present case and given set of circumstance, it has been established by the prosecution that the act of the accused persons in grabbing the breast of the complainant, pushing her on the FIR No. 210/10 State Vs. Subhash Kumar & Anr. 11/12 ground and kicking on her breast as well as pulling the complainant by her hair, is sufficient to shock the sense of decency of a woman and is outrageous of her modesty.
14. The allegations that the accused persons forcibly trespassed into the house of complainant not only for the purpose of breaking the staircase but subsequently also for dragging the complainant out of her house, have not been specifically denied by way of any suggestion. Infact, testimony of DW3 is establishes the fact of a forcible entry into the premises which are alleged to be the house of the complainant. As such, offence of house trespass stands proved against the accused persons.
15. As such prosecution has successfully proved the ingredients of offence 354/451/323/34 IPC, while the accused has failed to raise any reasonable doubt or inconsistency in the prosecution case. Offence U/s 354/451/323/34 IPC, thus, stands proved against the accused beyond reasonable doubt. Accused accordingly stands convicted of offence U/s 354/451/323/34 IPC
16. File be consigned to the Record Room.
ANNOUNCED IN OPEN COURT (CHARU GUPTA)
th
ON 19 May 2016. METROPOLITAN MAGISTRARTE
MAHILACOURT02/SAKET
NEW DELHI
FIR No. 210/10 State Vs. Subhash Kumar & Anr. 12/12