Delhi District Court
Cr. Case/535275/2016 on 30 May, 2017
IN THE COURT OF MM02, MAHILA COURT, NORTH
WEST, ROHINI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 315/14
PS : Sultanpuri
U/s 354/354B/509/323/341/34 IPC
CIS No. 535275/2016
Unique I.D. No. 02404R0258832014
State v. Sachin Gupta & ors.
J U D G M E N T :
a)Serial No.of the case : 338/2/2014
b)Date of commission of offence : 17.03.2014
c)Name of the Complainant : Ms.A (name with held)
d)Name parentage and address
of accused : 1. Sachin Gupta S/o Sh.
Ram Sewak, R/o P3/164,
Sultanpuri, Delhi.
2. Deepak @ Mithun, R/o
P3/164, Sultanpuri, Delhi.
e) Offence complaint of : 354/354B/509/323/341/34 IPC
f) Plea of accused : Pleaded not guilty
g) Date on which judgment was
reserved : 11.05.2017
h) Final Order : Both accused convicted u/s
354/323/341/34 IPC
Accused Deepak convicted
u/s 509 IPC as well.
I) Date of decision : 11.05.2017
Brief Statement and Reasons for Decision:
1.The present FIR has been registered on the allegations FIR No. 315/14 State v. Sachin Gupta ors. Page No. 1 of 17 that on 17.03.2014 at about 0202.30 pm, the complainant was standing in the street in front of house no. P3/175, Sultanpuri, Delhi with her siblings. The accused persons alongwith CCL Saurabh were throwing colours in the street. Accused Deepak stood in front of their house and hurled abuses. When mother of the complainant objected, accused abused her as well. Accused Deepak used criminal force to the complainant Ms.A (identity with held) by pulling her hair, entered in a scuffle and pulled her Chunni. His brothers, i.e., accused Sachin and CCL Saurabh with one unknown person entered in a scuffle with her mother and aunt. They pulled the saree of her aunt 'B' (identity with held) intending to outrage or knowing it to be likely to outrage their modesty. On these allegations, FIR was got registered and after investigation charge sheet for the offence u/s 354/354B/509/ 323/341/34 IPC has been filed. On appearance of the accused persons, copy of the charge sheet was supplied. Arguments on charge were heard. Prima facie charge for the offence u/s 354/354B/509/323/ 341/34 IPC was made out against both the accused persons to which they pleaded not guilty and claimed trial.
2. In order to prove its case, prosecution examined nine witnesses.
PW1 Complainant Ms.A, stated that she does not remember the date of incident, however in the year 2014 at the time of holi, when she was standing near her house, accused Deepak came FIR No. 315/14 State v. Sachin Gupta ors. Page No. 2 of 17 there and abused her in a filthy language by stating "behen ki lohri"
etc. Her mother stated to him why he was abusing the complainant. In the meanwhile, accused called his brothers namely Sachin and Saurabh. Then, accused Deepak caught her suit and dupatta. Accused started scrimmage (hathapai) with her, her mother and her aunt B due to which the saree worn by her aunt 'B' opened. Accused Deepak tried to strangulate her aunt by his hands. The brothers of the accused Saurabh and Sachin helped the accused in fighting. They also abused them in a filthy language. Accused hit her with some object on her eyes due to which she sustained injuries and became unconscious. At the time of quarrel, the brother of accused namely Sachin and Saurabh @ Vipin Gupta (CCL) took one iron rod (sariya) and threatened them to kill with that iron rod. After sometime, accused Deepak with his brothers fled away from the spot. Somebody called the police. She with her mother and aunt went to the police station where they told the entire incident to the police. Police recorded her statement Ex.PW1/A. The police officials got conducted their medical examination from Sanjay Gandhi Hospital. At that time accused persons were under the influence of liquor. After few days of the said incident, her statement Mark A u/s 164 Cr.PC was recorded. She correctly identified the accused in the Court.
PW2: mother of the complainant, deposed that she does not remember the date of incident, however in the year 2014 at FIR No. 315/14 State v. Sachin Gupta ors. Page No. 3 of 17 the time of holi when she was present in front of her house with her daughter, the incident occured. She corroborated the version of the PW complainant in toto.
PW3: Dr. Brijesh Singh, CMO, Sanjay Gandhi Memorial Hospital, Delhi deposed that on 17.03.2014, at about 6.40 pm, Dr. Athar Hussain examined the complainant and the victim B under his supervision vide MLCs Ex. PW3/A and Ex. PW3/B. He correctly identified the signatures of doctor Athar Hussain at point A on MLCs.
PW4: Smt. B (identity withheld) deposed that on the occasion of Holi i.e. 17.03.2014 at about 2:00 pm, she was alone at she house. She saw some boys were abusing in a filthy language and were spreading color in the street while passing through their street, upon which her jaithani i.e. mother of the complainant objected. One accused namely Deepak who is resident of their locality abused mother of the complainant in filthy language and started quarreling. He caught hold of the hair of her jaithani and pulled dupatta. In order to save her jaithani she intervened. Accused Deepak also misbehaved with her. In the meanwhile Deepak's brother namely Sachin and Saurabh also reached there. They also started quarrel with them. She corroborated the version of the complainant in toto. She correctly identified the both the accused persons in the Court. Her statement u/s 164 Cr.PC Ex. PW4/A was recorded.
FIR No. 315/14 State v. Sachin Gupta ors. Page No. 4 of 17 PW5 SI Deepak Purohit, deposed that on 17.03.2014, on receiving DD no. 44B, he along with one constable went to the place of incident where they came to know that the injured have already been shifted to Sanjay Gandhi Hospital, Mangol Puri. They both went to Sanjay Gandhi Hospital. As it was a Holi festival, they could not obtain the MLC but he met one injured Smt. B who told him that she will give her statement after her medical examination. Accordingly, he kept the DD pending. On 20.03.2014, Smt. B and complainant Ms.A with her parents came to PS Sultan Puri and produced their emergency card of Sanjay Gandhi Hospital dated 17.03.2014. He recorded statement of complainant Ms. A Ex.PW1/A. On the basis of which, he prepared rukka Ex.PW5/A. He prepared the site plan Ex.PW5/B at the instance of the complainant Ms.A. He recorded the supplementary statement of the complainant. On 24.03.2014, he moved an application Ex. PW5/C for the recording of the statement of complainant and injured Smt. B u/s 164 Cr.P.C. He obtained the MLCs of injured Ms.A and Smt. B on 27.03.2014. On 28.03.2014, he went to house of the accused persons where he formally interrogated both the accused and arrested them vide memo Ex.PW5/D and Ex.PW5/E respectively. Both the accused were personally searched vide memo Ex.PW5/F and Ex.PW5/G. He also recorded their disclosure statement Ex.PW5/H and Ex.PW5/I. During the investigation, it was found that one other boy namely FIR No. 315/14 State v. Sachin Gupta ors. Page No. 5 of 17 Vipin was juvenile and accordingly, he was produced before the juvenile board. After completion of investigation and recording of the statement of the witnesses, he prepared the charge sheet and filed in the Court. He identified both the accused present persons in the Court.
PW6: Father of the complainant, also corroborated the version of PW1, PW2 and PW4 in toto.
PW7 Dr.Mahipal Singh, identified the signatures of Dr. Athar Husain on the emergency card Ex.PW7/A and Ex.PW7/B of the complainant and Smt. B. PW8 Ct.Tejveer, stated that he was not the DD writer on the date of incident i.e. 17.03.2014 and IO has inadvertently mentioned his name.
PW9: Ct. Ramkishore, deposed that on 17.03.2014, he was performing the duty as DD writer. He received PCR call at about 4.12 pm regarding the quarrel at P3/164 Sultanpuri he reduced the said information in the Roznamcha register in his own handwriting and he also made entry no. 44B in this regard Ex. PW9/A. After cross examination of the witnesses, prosecution evidence was closed. All the incriminating evidence was put to both the accused persons and their statement u/s 313 Cr.P.C was recorded u/s 313 Cr.P.C.
3. In reply to the incriminating evidence, accused Deepak stated that he did not abuse the complainant. The family of the FIR No. 315/14 State v. Sachin Gupta ors. Page No. 6 of 17 complainant was having a quarrel with the neighbour whose house is in front of the complainant. He was only standing in front of his shop. He was trying to stop the quarrel. He did not give any disclosure statement to the police. He had quarrel with the son of uncle (mama) of the complainant about 11 ½ month prior to date of incident. The complainant and her family members develop enmity with him due to the said incident. He was present on the spot at the time of quarrel of the complainant and family members with the other neighbors, due to which he has been falsely implicated. The witnesses are all family members and are interested in the success of the case. He chose to lead evidence in defence.
In reply to the incriminating evidence, accused Sachin stated that the family of the complainant having quarrel with the neighbour whose house is in front of the complainant. His brother was trying to stop the quarrel. He came to the spot and took his brother to the house. He made a call to the police by dialing at 100 number. He was not present at the time of quarrel. The aunt Smt. B of the complainant was not present at the spot. The brother, brother in law and father of the complainant were present at the spot. All the residents of the street were also present at the spot. He did not enter in any scrimmage with the complainant. Police reached at the spot but his father sent the police back saying that they do not wish to lodge any complaint. He did not give any disclosure statement to the police.
FIR No. 315/14 State v. Sachin Gupta ors. Page No. 7 of 17 His brother Deepak had a quarrel with uncle (mama) of the complainant prior to 1 - 1 ½ months of the date of incident. Due to that quarrel he and his brother have been falsely implicated. All witnesses are interested as they are family members. He chose to lead defence evidence.
4. In defence, both the accused examined Shri Kamal Kumar as DW1 resident of the same locality and Shri Mukesh Singh as DW2 who is having shop in the same locality.
DW1: Kamal Kumar deposed that in the year 2014 at the time of holi, however he did not remember the date and month, at about 1.30 pm, he with his father were present at their house. At that time, brother in law (jija) of complainant, came to the spot in drunken state. He started quarreling with DW1 and his father on his arrival. Public persons gathered at the spot. Meanwhile, Sachin and Deepak came to spot. They tried to pacify the quarrel. The matter was pacified by mutual consent of both the parties. After sometime, parents of complainant went to house of accused and started quarreling with them. Then, they made a false complaint and implicated both the accused persons i.e. Deepak and Sachin.
DW2: Sh. Mukesh Singh, stated to be having a shop situated at the end of the gali where the quarrel took place between the family of the complainant with DW1 Kamal. The brother in law of the complainant came to spot and started quarrel with Kamal. He FIR No. 315/14 State v. Sachin Gupta ors. Page No. 8 of 17 reached to spot on hearing of noise and tried to pacify the quarrel. Meanwhile, Deepak reached at the spot and also tried to pacify the quarrel. Family of complainant had started quarrel with Deepak. At that time, Sachin also came at the spot and took away his brother Deepak. After sometime, 2022 persons from the side of complainant reached at the house of Sachin. Due to gathering of public persons, public persons who supported Sachin, the said 2022 persons returned. After cross examination of the witnesses, defence evidence was closed. The matter was listed for final arguments.
5. I have heard Ld. APP for the State Dr. Shrawan Kumar and Ld. Counsel, Shri Ajay Kumar Pandey for the accused persons and perused the Court record. Ld. Counsel for the accused has argued that alleged incident took place on 17.03.2014 whereas FIR has been registered on 20.03.2014 as an afterthought. There is no eye witness in this matter. The aunt of the complainant (who is also a victim) submits that her statement was recorded on the same day, but the FIR was registered on 20.03.2014 and hence it is argued that her statement was not recorded on the same day. The complainant stated in her statement that she knew accused persons for last six months whereas in her statement u/s 164 Cr.PC she stated that she does not know the accused which amount contradiction in the testimony of the complainant. Mother of the complainant has stated that there was no male member present at her house whereas complainant stated that her Jija ( brother FIR No. 315/14 State v. Sachin Gupta ors. Page No. 9 of 17 inlaw) was present. Further, he has pointed out that complainant has stated that when the quarrel took place she and her brother were standing outside their house. It is argued that due to previous enmity between accused and the family of the complainant they have been falsely implicated in this case. The quarrel took place between one of their neighbours and the brother in law (Jija) of the complainant who was drunk, accused persons intervened to pacify the quarrel so they have been falsely implicated. No public witness has been joined in the investigation.
6. Ld. APP for State has aruged that the allegations made by the complainant and the victims have been duly corroborated by their MLCs on record. Further he submits that the defence which is not put to the prosecution witnesses in her cross examination is not sustainable.
In order to prove the offence u/s 354/354B/509/323/341/34 IPC, the prosecution has to prove the following ingredients:
(i) That the accused assaulted or used criminal force to a woman with intent to outrage her modesty.
(ii) That the accused knew that her modesty will be outraged thereby.
(iii) That the accused assaults or used criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked.
FIR No. 315/14 State v. Sachin Gupta ors. Page No. 10 of 17
(iv) That the accused uttered some words, made some sounds or gesture, or exhibited any object or intruded upon the privacy of a woman.
(v) That the accused must have intended that such words so uttered or the sound or gesture so made or the object so exhibited should be heard or seen by such woman.
(vi) That the accused voluntary caused hurt to the complainant.
(vii) That the accused wrongfully restrained the complainant.
7. In State of Punjab v. Major Singh AIR 1967 SC63 the Supreme Court observed: 'The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive.'
8. In the present case the victim/complainant and her aunt are the star witnesses. The complainant, her mother and her aunt have duly corroborated the prosecution version. The complainant and her mother have clearly stated that the accused Deepak abused the complainant in filthy language saying "behen ki lohri". She has mentioned the specific date and time on which such words were uttered to her by the accused Deepak. Even in her statement u/s 164 FIR No. 315/14 State v. Sachin Gupta ors. Page No. 11 of 17 Cr.PC the complainant has categorically deposed that abuses were hurled on her by accused Deepak and he also pulled her hair and caused injury to her. There is no reason for this Court to disbelieve the statement of the complainant who is a victim of insult on her modesty.
9. As regards the offence u/s 509 IPC, in the case of Sarvesh Chaturvedi v. State of NCT of Delhi MANNU/DE/ 0407/2015 it has been held that in order to invoke the provisions of Section 509 IPC, it was incumbent to reproduce specific words/ gestures used by the accused. The complainant in this case has specifically detailed those words. It was essential for the witness to narrate the actual words/ gestures used so that the Court can form an opinion whether language/ gestures were filthy or abusive or amounting to improper expression designed "to insult the modesty of a woman" within the ambit of penal clause under Section 509 IPC which was found to be present in this case.
10. The defence of the accused is that no public witness has been joined in the investigation by the IO. In case, the police fails to cite any of the public witnesses to the incident does not mean that the incident did not occur. In State (NCT of Delhi) v. Pratap Singh, 2016 SCC Online Del 3207 it has been held that the sole testimony of a single witness can be relied upon. Moreover, non joining of the said police official by the IO does not absolve the guilt of the accused. As regards the availability of the public persons, it is not the case that the FIR No. 315/14 State v. Sachin Gupta ors. Page No. 12 of 17 testimony of the complainant, her mother and aunt which is found to be credit worthy cannot be relied upon. The above three witnesses have withstood the test of the crossexamination and they have remained firm on their testimony which find sufficient credence.
11. During cross examination the IO PW5 stated not to have joined any neighbour as a witness in the present case as they were not ready to give their statement. This points to the mind set of the people and modern Indian scenario where no one comes to the aid of a victim woman when any offence is done against her. It is clear that IO has failed to join any public witness for reason best known to him, none the less, any irregularities done by the IO/ investigating agency does not absolve the guilt of the accused, if the statement of the complainant and other public witnesses duly corroborates the case of the prosecution. The complainant has stated that both the accused persons hit her with some object on her eyes due to which she sustained injuries. The same is also corroborated from the MLCs of the complainant Ex.PW3/B which shows abrasion on the left eye brow and bleeding and her aunt B Ex. PW3/A which shows brush near the left eye with pain at the left side of the face and left eye.
12. As regards the defence of the accused that there is delay in making the complaint to the police officials by the complainant and her aunt B, PW5 has categorically stated that he went to the SGM Hospital as it was Holi festival they could not obtain the MLC and one FIR No. 315/14 State v. Sachin Gupta ors. Page No. 13 of 17 of the injured Smt B whom he met told him that she will give her statement after medical examination. Then on 20.03.2014 both complainant and Smt. B produced their emergency card and their statement was recorded, on the basis of which FIR was registered. This sufficiently explains the delay in registration of the FIR.
13. Minor contradictions are bound to arise with the passage of time from the date of incident and are explainable. The burden of proving the defence lies on the accused, but he has failed to discharge his onus. The accused persons produced two defence witnesses DW1 Kamal Kumar who stated that the quarrel took place with him and his father. But during cross examination he admitted that he was not present at the time of quarrel between the accused persons and the complainant. He was inside his house. He also admitted that nothing happened in his presence. He also admitted that both accused are his friends and are residing in the street behind his house. Similarly DW2 Mukesh Singh stated that the accused are residing near his shop. During cross examination he stated that he kept his shop closed / shut down on that day. He also admitted that he was not present at the time when the quarrel between the accused and complainant took place. He admitted that on the said day it was holiday and he remained in his house which is situated at a distance of 1 1 ½ kilometer from the house of the complainant. From the version of DW2, inference is drawn that he was not present at the spot. Thus both the defence FIR No. 315/14 State v. Sachin Gupta ors. Page No. 14 of 17 witnesses have stated that they were no present at the time of the alleged incident. Their testimony is only hearsay. The defence has failed to advance any justifiable reason for the complainant and the victim to depose against them. Moreover, the said defence that quarrel took place with some other neighbour was never put to the prosecution witnesses i.e. the complainant, her mother and her aunt.
14. Similarly no question has been put to the complainant, her mother or her aunt regarding previous enmity between parties due to quarrel with the uncle (mama) or son of uncle as deposed by the accused persons in their statement u/s 313 Cr.PC. Hence, the said defence is found not tenable.
15. There is no delay in registration of the FIR as IO himself admitted that on the day of Holi there was rush in the hospital, hence he could not collect the MLC's. After getting the MLC's he registered the present FIR. As per MLC simple hurt has been to the complainant as well as victim and her aunt. The same remains unexplained by the accused persons. Moreover, in case quarrel took place with some other neighbors as alleged by the accused persons not even a single suggestion in this regard has been put to the complainant, her mother and her aunt. This defence of the accused that the incident took place between Jija and the neighbor of accused persons were trying to pacify the quarrel between them is not tenable. In case the quarrel took place with some other neighbours as alleged by the accused, the FIR No. 315/14 State v. Sachin Gupta ors. Page No. 15 of 17 complainant and the victims would have named those persons in their complaint which they have not done. The said defence seems to be afterthought.
16. Thus it is clear that the accused Deepak outraged and insulted the modesty of the complainant and her aunt by using criminal force and pulling the clothes of the complainant and entering into scuffle (hatha pai) with them due to which injury was caused to the complainant. There are specific allegations of abuses being hurled by accused Deepak. As regards the allegations of abuse by accused Sachin, they are vague without any specifications. Accordingly, as regards accused Sachin the offence u/s 509 IPC is not proved and he is acquitted for the offence u/s 509 IPC.
17. As regards the offence u/s 354B IPC neither the complainant nor the victim stated that the accused persons used criminal force against them with intention to disrobing or compelling them to be naked. PW1 stated that accused Deepak caught her suit and duppata. The scrimmage was started by the accused, due to which the saree of her aunt Smt B opened. PW2 and PW4 have also stated the same that the saree opened due to the scrimmage (hatha pai) and not intentionally by the accused persons. Accordingly both accused Sachin and Deepak are acquitted for the offence u/s 354B IPC.
18. As regards the allegations for the offence u/s 354/323/341/34 IPC, they stand proved against both the accused FIR No. 315/14 State v. Sachin Gupta ors. Page No. 16 of 17 persons.
19. In view of the above discussions, accused persons namely Sachin and Deepak are hereby convicted. Accused Deepak stands convicted for offence u/s 354/509/323/341/34 IPC and accused Sachin stands convicted for the offence u/s 354/323/341/34 IPC.
Put up for hearing on the point of sentence on 16.05.2017.
Announced in open Court on this 11th day of May 2017.
Susheel Bala Dagar Metropolitan Magistrate Mahila Court02,North West Rohini Courts, Delhi All pages signed.
FIR No. 315/14 State v. Sachin Gupta ors. Page No. 17 of 17