Delhi District Court
State vs . Irfan Khan on 24 January, 2013
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IN THE COURT OF MS. PRIYA MAHENDRA,
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. IRFAN KHAN
FIR No. 38/2009
P.S. : K.M. Pur
U/S 354/509 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 11.06.2009
2. SERIAL NUMBER OF THE CASE : 138/2A
3. DATE OF COMMISSION OF OFFENCE : 25.02.2009
4. NAME OF THE COMPLAINANT : Ms. Shakshi Yamdagmi
5. NAME OF THE ACCUSED & ADDRESS : Irfan Khan s/o Nizam
Khan, r/o G8/1/20,
Sangam Vihar, New Delhi.
6. OFFENCE COMPLAINED OF : U/S 354/509 IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
8. DATE OF RESERVE OF JUDGMENT : 21.01.2013
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur
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9. THE FINAL JUDGMENT : Conviction u/s 354
IPC
10.THE DATE OF FINAL JUDGMENT : 24.01.2013
BRIEF FACTS
1. The case of the prosecution in brief is that on 25.2.2009 at about 1.20 PM in the area of PS K.M. Pur, the complainant Sakshi and her friend Deepika were traveling in a blue line bus. The accused Irfan also boarded the same bus. The accused molested the complainant in the bus by taking out his penis and rubbing it on the shoulder of the complainant and, thus, committed an offence punishable u/s 354/509 IPC. He was arrested from the spot.
2. The FIR was registered on the complaint of the complainant against the accused Irfan Khan and investigation was carried out.
3. Charge sheet under Section 354/509 IPC was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C. Vide order dated 20.10.2010, notice was framed against the accused for offence u/s 354/509 IPC to which he pleaded not guilty and claimed trial.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 3 Prosecution Evidence
4. In order to prove its case, the prosecution has examined five witnesses and the prosecution evidence was closed vide order dated 15.01.2013.
5. PW1 Ms. Sakshi is the complainant. She deposed that on 25.02.09 at about 1:00 pm, she alongwith her friend Deepika was going from Dayal Singh College towards her home in bus route number 623. She and her friend Deepika sat on the seat. When the bus reached South Extension the accused Irfan Khan (correctly identified) stood close to their seat. Accused opened the zip of his pant and was putting and touching his private part on her shoulder and neck. She disclosed the said fact of the accused to her friend Deepika. The accused caught hold her shoulder and repeated the said act twice. She further deposed that she caught hold the collar of the accused and stated the said fact to other passengers who were travelling in the same bus. One or two ladies in the bus beaten the accused. Then she called up the police twice, once when she was in the bus and another when she got off from the bus and reported the incident to the police. Police came at the spot and she narrated the entire incident to the police and her statement was recorded by the police vide Ex. PW1/A. Accused was arrested in her presence by the police vide arrest memo Ex. PW1/B. The victim has correctly identified the accused.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 4
6. During her cross examination she stated that she started her course in 2006. On the day of incident, she was returning back from her ICWA Class in the bus when the incident happened. It was a blue line bus. She used to commute daily by bus for attending her ICWA class at Lodhi Road. Her first statement was recorded after the incident in the police station. Thereafter, she was again called in the police station probably a week after the incident and she signed papers. She does not remember on what papers she signed in the police station after she was again called a week after the incident. She voluntarily stated that as the incident happened in 2009, she cannot remember such details. She gave her complaint in writing. She does not remember whether in her written complaint she had stated that it was a blue line bus. She voluntarily stated that the incident happened three years back and she is not able to remember such details now. She only gave written complaint and thereafter no statement of her was recorded and the first statement that she refer to was her written complaint. She voluntarily stated that she signed few papers after a week in the police station. She read the documents before signing the same. She has not signed any blank paper in the police station. All the proceedings were conducted by the police in the police station. She voluntarily stated that after her brother reached the spot when she gave him a telephonic call, she sat in the car brought by her brother and her brother was dealing with police. Thereafter, she reached the police station and gave her written complaint. Her brother in fact reached the St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 5 spot before the police arrived. She along with her friend Deepika and brother reached the police station from the spot. She voluntarily stated that she used to go to her classes everyday with her friend Deepika. There was no other student from our class or institute in the bus on the date of incident. The bus was totally full of passengers at the time of incident. She slapped the accused in the bus when he did the obscene act with her. Other copassengers also slapped the accused. She voluntarily stated that as the other copassengers saw him with pant of his zip opened. But he took the defence that pant of his zip is not working and therefore it is open. She did not mention in her complaint that she slapped the accused and public persons also beaten him. She further stated that she called the police by dialing number 100. She admitted that the said bus did not remain stationary till the police arrived. She voluntarily stated that she informed the police on phone the number of the bus and the fact that she has got down from said bus at South Extension. One uncle and one or two other passengers deboarded from the bus along with me at South Extension and they helped her to nab the accused and the said passengers also made the accused alighted from the bus at South Extension, along with her and her friend Deepika. She admitted that the said passengers remained at the South Extension till the police arrived and left the said place after handing over the accused to the police. The said copassengers immediately left the South Extension after handing over the accused to the local police and the said copassengers who St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 6 handed over the accused to the local police, were not interrogated by the police in her presence. She had no means to check the claim of the accused that his zip was not working. She stated that she had seen the private part (i.e. Penis) of the accused after he took it out. She denied the suggestion that on the day of incident she was also accompanied with one male friend in the bus. She also denied the suggestion that the scuffle ensued between the said male friend and the accused. She also denied the suggestion that the said male friend beaten the accused and later, she concocted the false story in order to frame the accused. She denied the suggestion that she is deposing falsely in the court. She voluntarily stated that she always speak the truth even in her real life.
7. PW2 ASI Balbir Singh is the Duty Officer. He proved the FIR No. 38/09 U/S 354 IPC vide Ex. PW2/A and endorsement on Rukka vide Ex. PW2/B. He also stated that after registration of FIR, he handed over the carbon copy of FIR and original Rukka to Ct. Vijay Pal for handing over the same to HC Ranvir Singh.
8. PW3 Constable Vijay Pal, who accompanied the IO, deposed that on 25.02.09 on receipt of DD number 9A, he alongwith HC Ranvir Singh reached at South Extension, Part II, bus stand where complainant Sakshi met them alongwith with the accused (correctly identified). IO recorded the statement of the complainant Sakshi and after making endorsement the rukka was handed over to him for St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 7 registration of the case. He deposed that after registration of the case he came back to the spot and handed over the copy of FIR and rukka to the IO. IO arrested the accused in his presence vide arrest memo Ex. PW1/B and conducted the personal search of the accused vide search memo Ex. PW3/A.
9. PW4: Deepika Arora, is the friend of the complainant. She was traveling with the complainant at th time of incident. She deposed that on 25.02.2009 after finishing her class from I.C.W.A. in Lodhi Road, she alongwith her friend Sakshi were going back home and took the bus route No.623. Her friend Sakshi was sitting on the seat. One person i.e. accused was standing near the seat where Sakshi was sitting. Her friend Sakshi told her that the person i.e. accused standing near her was trying to touch her shoulder from his private part. She further deposed that when accused repeated his act, Sakshi shouted and caught hold of him. The passengers of the bus also helped them. Thereafter, Sakshi called to the police and at the bus stop of South Extension they all got deboarded from the bus alongwith accused who had committed the obscene act with her friend Sakshi. After sometime, police reached and arrested the accused vide memo Ex.PW1/B. Police had also recorded the statement of her friend Sakshi. Police had recorded her statement.
10.During her cross examination, she stated that it was a blue line bus. Around St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 8 1012 people deboarded the bus at South Extension. She volunteered stated that even, public gathered there. She cannot say exactly how many co passengers remained at South Extension till the arrival of police. She voluntarily stated that probably around 67 copassengers remained at South Extension till the arrival of the police. But she has not seen face of all of them. One uncle nabbed the accused and made him deboard the bus. The police has not interrogated any copassengers or public person present at South Extension. She voluntarily stated that after arrival of police all the persons present at South Extension started telling the police about the incident on their own. She stated that she, her friend Sakshi, brother of her friend Sakshi and one of the friends of brother of her friend Sakshi went to the police station. She voluntarily stated that Sakshi called her brother after the incident and he came along with his friend. No other copassenger or public person went to the police station along with them. She stated that she had not seen the private part of the accused herself in the bus. After putting court question to the said witness regarding incident happened in the bus, the witness stated that her friend Sakshi started shouting and caught hold of the accused in extreme anger. Suddenly, one uncle intervened and asked her friend what had happened and she narrated the obscene act of the accused. His zip was opened at that time. The accused took the defence that his zip was not working.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 9
11. She came to know about the obscene act done by the accused after her friend started shouting. She denied the suggestion that on the day of incident they were also accompanied with one male friend in the bus. She also denied the suggestion that the scuffle ensued between the said male friend and the accused. She also denied the suggestion that the said male friend beaten the accused and later, she and her friend Sakshi concocted the false story in order to frame the accused. She does not remember whether her friend Sakshi had given written complaint in the police station. She voluntarily stated that she only remember that she had signed one statement in the police station. On that day, in the police station she had not signed any other paper. She was not called in the police station later and she only went to the police station once. She denied the suggestion that she is deposing falsely.
12.PW5 IO/ASI Ranvir Singh is the IO. He deposed that on 25.02.2009 while he was on emergency duty, on receipt of DD No.9A, he alongwith CT. Vijay Pal reached at South Extension, Part II, bus stand where complainant Sakshi along with her friend Deepika, one another person and accused met them. The complainant Sakshi handed over the accused (correctly identified) to the police. He further deposed that he recorded the statement of the complainant Sakshi. He also put his endorsement on the rukka vide Ex. PW2/A and got the FIR registered through Ct. Vijay Pal. He deposed that after registration of the case, St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 10 Ct. Vijay Pal handed over the copy of FIR and rukka to him. Thereafter, he arrested the accused vide arrest memo Ex. PW1/B and conducted his personal search vide search memo Ex. PW3/A. He further deposed that he recorded the statement of complainant and other witnesses u/s 161 Cr.P.C. He further deposed that site plan was not prepared by him as the incident occurred in the running bus.
13.During his cross examination, he admitted that he recorded the statement of complainant at the spot and he along with accused came at PS through bus. Complainant and her friend had not visited the PS on the same day. When they reached at the bus stop 23 public persons were present there. He requested to those public persons to join the investigation but they refused to do so and left the spot without disclosing their names and addresses. When they reached at the bus stop, some public persons were also present there and accused was not apprehended by any public persons. All those persons who were present there were only public persons and were not copassengers as per their interrogation made by him. He stated that all the preliminary investigation like recording of statement of complainant, arrest of the accused and preparation of memo was done at the spot. He stated that at the spot the brother of the complainant also reached after she made a call to him. He denied the suggestion that accused has been falsely implicated in the present case. He further denied the St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 11 suggestion that no such incident took place. He further denied the suggestion that he is deposing falsely.
S.A
14.The statement of accused was recorded u/s 313 Cr.P.C., in which he denied all the allegations leveled against him and stated that he has been falsely implicated in this present case. He had not done any obscene act with the complainant and zip of his pant was not working on that day. The complainant started shouting in the bus that he did obscene act with her. She beaten him thereafter. The other public persons also beaten him. He opted not to lead defence evidence. Arguments:
15. The detailed arguments have been addressed by both sides. It is argued by Ld. APP that the prosecution has successfully established the guilt of the accused persons beyond reasonable doubt. It is argued by learned APP that sworn depo sition of PW1 in conjunction with evidence of public witness Deepika (PW4) bring home the guilt of the accused beyond reasonable doubt. The complainant (PW1) and her friend (PW4) along with police witnesses have fully supported the case of prosecution. On the other hand learned counsel for the accused has ar gued that accused is innocent person and has been falsely implicated in the present case. There are material contradictions in the testimony of PW1 (com St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 12 plainant) & PW4 (eye witness) on one hand and the IO (PW5) on the other hand The complainant (PW1) as well as her friend (PW4) stated in their evi dence that all the proceedings happened in the police station. On the other hand IO stated that all the proceedings were conducted by him at the spot. Even the offending bus was not seized by the IO. Therefore, he has urged that the said discrepancies throw the cloud of suspicion over the prosecution case. He has further argued that no reliance can be placed on the testimony of PW4 as she is only a hearsay witness. Moreover, the prosecution has not examined any in dependent public witness to support its case despite availability of the public wit nesses. Therefore, it is argued by the Ld. Counsel for the accused that the ac cused is entitled to benefit of doubt.
16.I have bestowed my careful consideration to the rival arguments advanced at bar and also perused the entire record meticulously as well as gone through testi monies of witnesses.
BRIEF REASONS FOR THE DECISION OF THE CASE
17. The complainant (PW1) as well as her friend Deepika (PW4) are star witnesses of the prosecution. Both PW1 & PW4 have supported the case of the prosecution in all material particulars. The defence has failed to impeach and assail the credibility of the complainant (PW1) and her friend Deepika (PW4) during their St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 13 elaborate cross examination. The incident as well as the complicity of the accused in the crime is duly established by the evidence of PW1 & PW4.
18. It is a settled law that minor discrepancies on trivial matters would not demolish the case of the prosecution unless it affects core of the prosecution case. As far as the inconsistency between the statement of IO and PW1 & PW4 regarding the place where the police proceedings took place, it is suffice to say that the said discrepancy is not very vital and does not go to the root of the matter. The failure of the IO to seize the offending bus is not fatal to the case of the prosecution. The accused molested the complainant in the moving bus. There is no involvement of the bus in question. The seizure of the bus by the IO would not have served any purpose and was not necessary to prove the guilt of accused person
19. Secondly, the defence has stated that no reliance can be placed on the testimony of PW4 as she is only a hearsay witness. The another argument of the accused that the evidence of friend of complainant is inadmissible being hearsay and not being part of same transaction, is also not found favorable with this court . The PW4 was traveling along with the complainant (PW1) in the bus and complainant informed her about the obscene act of the accused contemporaneously with the incident. The testimony of the PW4 is very much admissible under Section 6 of Indian Evidence Act, as a part of resgestea.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 14
20. The another argument of counsel of the accused is that the non examination of public witness is fatal to the case of the prosecution. It be noted that under Section 134 of Indian Evidence Act, 1872, it is stated that no particular number of witnesses are required for proof of any fact. It is the quality of the evidence and not the quantity of evidence which is required to be Judged by the Court to place credence on the statement (see State of U.P. v. Kishan Pal 2008 (8) JT 2008). It is also well settled that the conviction can be based on the basis of solitary statement of prosecutrix in offences involving moral turpitude or sexual offences, if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696). There is no requirement of law that everyone who has witnessed the occurrence, whatever there number be, must be examined as a witness. (Amar Singh V. Balinder Singh (SC) 2003 (1) RCR Criminal 701). In Jawahar v. State, (Delhi) 2007(4) R.C.R. (Criminal) 336 it was further observed that (1) It is very hard these days to get association St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 15 of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suffer any inconvenience for the sake of society.
21.In the present case, the IO has clearly stated the public persons present there refused to join the investigation and left the spot without disclosing their names and addresses. Therefore, no adverse inference can be drawn against prosecution for non examination of public witnesses.
22.The evidence of complainant is found to be totally credit worthy, truthful and reliable. The veracity of the evidence of complainant and her friend is further apparent from the fact that they made no efforts to conceal anything and even stated voluntarily in the court the defence put forth by the accused when he was caught redhanded with pant of his zip open. The witness who is tutored or stating falsehood would never reveal such exculpating fact in her/his evidence on her/his own. Moreover, the defence of the accused that his zip was not working at the time of incident even if taken as true, is not enough to exonerate him. The complainant categorically stated that the accused had not only taken out his penis but also rubbed his penis on her shoulder after he caught her by shoulder and repeated the said act twice and no plausible explanation has been given by the accused for his abhorrent act. There is nothing on record to suggest that the evidence of the complainant & her friend is motivated or unreliable. Besides the St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 16 bald suggestion of the purported scuffle between the complainant's male friend and the accused, the accused failed to spell out any reason for his false implication by the complainant & her friend. It is also noteworthy that though such suggestion of scuffle was given to the PW1 & PW4 during their cross examination, but no such defence was taken by the accused in his S.A. recorded u/s 313 Cr.P.C. This shows that a feeble attempt has been made by the defence to show false implication of accused as an after thought.
23. In view of the above, I am of the considered opinion that prosecution in the instant case has succeeded in bringing home the guilt of the accused beyond reasonable doubt.
Whether offence u/s 354 IPC is established against the accused.
24. Section 354 of IPC makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
a. That the assault must be on a woman. b. That the accused must have used criminal force on her or assault ed her.
c. That the criminal force or assault must have been with the intention to outrage modesty of women or with the knowledge that it is likely to outrage her modesty.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 17
25. Both PW1 & PW4 stated in their evidence that the accused stood near the seat of complainant and he opened the zip of his pant and touched on her shoulder with his private part in the public bus. The act of the accused is definitely affront to the dignity of the complainant and satisfy all the essential ingredients of Section 354 IPC.
26. In view of above discussion, the accused Irfan Khan is held guilty and convicted for offence punishable u/s 354 IPC.
27. As regards section 509 IPC, the accused has already been convicted for an offence under Section 354 IPC with regard to same incident. Therefore, the separate conviction under Section 509 is not warranted considering the similar nature of offence.
28.This case has brought to the fore the casual attitude of police official in conducting investigation in sensitive offences involving sexual crimes. Invariably in all such cases the prosecutrix is put to the hardship of coming to the police station to give her statement and for lodging her complaint. The police officials do not follow the mandate of law of not subjecting the prosecutrix in such cases the unnecessary inconvenience by calling them in police station and to carry out all the necessary proceedings at the spot.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur 18 Later on, the police officials in a parrot like manner always make claim to have conducted the proceedings at the spot opposed to the truth and unnecessarily create the discrepancy in the truthful testimony of the prosecutrix. This court earnestly hope that the investigating agencies shall be more sensitive in dealing with victims of sexual offences so that such victims fearlessly report the said matters and the justice is rendered to victim in a hassle free manner.
29.Put up for arguments on sentence on 11.02.2013.
Announced in the open court on this th day of 24 January, 2013 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi.
St. Vs. Irfan Khan FIR no. 38/2009 P.S. K.M.Pur