Delhi District Court
Criminal Case/244/2013 on 6 April, 2016
IN THE COURT OF MM02, MAHILA COURT, NORTH
WEST, ROHINI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 244/13
PS : South Rohini
U/s 354C IPC
Unique I.D. No. 02404R0032112014
State v. Shailesh
J U D G M E N T :
a)Serial No of the case : 33/2/14
b)Date of commission of offence : 23.08.2013
c)Name of the complainant : Identity with held.
d)Name parentage and address : Shailesh S/o Shri Sagriy
Mahto R/o H.No. 112, Village
Mangolpur, Also at B183,
Railway Jhuggi Camp, Shakur
Basti, Delhi
e)Offence complaint of : U/s 354C IPC
f)Plea of accused : Pleaded not guilty
g)Date on which judgment was
reserved : 16.03.2016
h)Final Order : Convicted
i)Date of decision : 30.03.2016
Brief Statement and Reasons for Decision:
1. Accused Shailesh is facing trial on the allegations that on 23.08.2003 at about 1.30 2 pm at night when the complainant (identity withheld) who was suffering from loose motions went to attend the call of nature, he watched the complainant in the toilet i.e a place where she would usually have the expectation of not being observed by any other person. On these allegations, investigation was carried out and after investigation charge sheet for the offence u/s FIR No. 244/13 State v. Shailesh Page Number 1 of 13 354C IPC has been filed. On appearance of accused, copy of the charge sheet was supplied. Arguments on charge were heard. Prima facie charge for the offence u/s 354C IPC was made out and framed against the accused Shailesh to which he pleaded not guilty and claimed trial.
2. The accused admitted the recording of FIR Ex.P1 without contents and the DD entry 30A dated 23.08.2013 as Ex. P2 in admission denial u/s 294 Cr.PC,.
In order to prove its case, prosecution examined four witnesses.
PW1/complainant stated that she was suffering from loose motion since 20.08.2013 and again and again she had to use the washroom. On 23.08.2014, she was present at her house as she was suffering from loose motions. At about 1:302:00 a.m at night she went to the toilet to attend the call of nature. She noticed that somebody was peeping in the toilet. At first, she thought there may be some polythene and ignored the same. After sometime she noticed accused Shailesh peeping in the toilet. When she shouted, accused Shailesh immediately fled away from the spot. Then, she went to the room of the accused, situated in front of her house. She asked him why he was peeping in the toilet. The accused admitted his guilt and apologized. Later, the brother of accused Shailesh called the owner of his room. The owner/landlord came at the spot and misbehaved with FIR No. 244/13 State v. Shailesh Page Number 2 of 13 PW1 and her mother. Then PW1 called the police by dialing on 100 number. Police came at the spot. The complainant told the entire incident to the police. Police recorded her statement Ex.PW1/A and prepared site plan Ex.PW1/B at her instance. She correctly identified the accused in the Court.
PW2 Ct. Ram Avtar Dhankar stated to have accompanied the IO SI Naresh in the investigation on receiving a call regarding quarrel at Mangolpur village. He stated that after inquiry from accused Shailesh, IO arrested him vide arrest memo Ex. PW2/A and personally searched him vide memo Ex.PW2/B. He also correctly identified the accused in the Court.
PW3 is the mother of the complainant. She stated that her daughter was suffering from loose motions since 20.08.2014. She was continuously going to the toilet to attend the nature's call. She also corroborated the version of the complainant and stated that her daughter informed the entire incident to her. PW3 correctly identified the accused in the Court but stated that police officials did not record her statement.
PW4 SI Naresh Kumar stated to have reached the spot on entrustment of DD 30A Ex.PW4/A regarding quarrel. He corroborated the version of the prosecution and the complainant. He stated to have made endorsement Ex.PW4/B on the statement of the complainant.
FIR No. 244/13 State v. Shailesh Page Number 3 of 13 After cross examination of the witnesses, prosecution evidence was closed.
3. All the incriminating evidence was put to the accused Shailesh and his statement u/s 313 Cr.P.C. was recorded. In reply to the incriminating evidence, accused denied the allegations against him. He stated that he was sleeping on the terrace. The complainant came to his room and gave beatings to him. The landlord in whose room he was a tenant called the police. Again, he stated that he made a call by dialing 100 number as complainant gave beatings to him. Accused chose not to lead any evidence in defence. The matter was listed for final arguments.
4 I have heard Ms.Yogita Kaushik, Ld. APP for the State and Sh. P. Chandra, Ld. Counsel for the accused and perused the Court record. Ld. APP for the State has argued that PW1 has specifically deposed against the accused saying that accused was peeping in the toilet. When she shouted accused fled away from the spot. PW1 went to the room of the accused where accused himself apologized for the guilt. The version of the complainant was also corroborated by the PW3.
Ld. Counsel for accused has argued that complainant herself stated that she locked the door of the toilet from inside. She stated that the was a window(ventilator) above the door. PW3 who is mother of complainant has stated that there is no window in the toilet.
FIR No. 244/13 State v. Shailesh Page Number 4 of 13 PW3 also stated that she did not give her statement to the police. Counsel for the accused has argued that due to the quarrel between his landlord and the complainant, accused who was a tenant has been implicated in this matter. It is argued that when the door was closed how the accused peep inside from a distance of 8 feet away and also there is darkness of night.
5. In order to prove the offence u/s 354C IPC, the prosecution has to prove the following ingredients:
i) that the accused watched or captures image of a woman
ii) that the woman was engaging in a private act in circumstances where she would usually have the expectation of not being observed by the accused at that time.
iii) that the place in which the act of watching the private act is carried out is such, which would reasonably be expected to provide privacy and where the victim's genitals, posterior or breast are exposed or the victim is using a lavatory.
6. In the present case, the complainant and her mother are the star witnesses. PW1 complainant has categorically stated that the accused was peeping inside the toilet when she went to attend nature's call, i.e., a place where she would usually have the expectation of not being observed by the accused. The distance between the toilet and the roof from where the accused was peeping in the toilet is about 8 feet. She stated that while she was using the toilet, she bolted the door from FIR No. 244/13 State v. Shailesh Page Number 5 of 13 inside however one open window (ventilator) is situated above the door of the toilet at height of 7 to 8 feet. The complainant went to the room of the accused and inquired from him about his presence to which the accused apologized to her admitting his guilt. She even informed his landlord. There is no cross examination by the Counsel for the accused on this aspect despite opportunity. Hence, it amounts to deemed admission on the part of the accused that complainant came to his room inquiring about the peeping and he apologized for his guilt. The complainant has remained firm on her statement through out her testimony that there is one open window which is situated above the door and has withstood the test of cross examination. Even though it was night time it is not the case that there was no electricity or light at that time to see the accused. The complainant has even at the first instance in her complaint Ex. PW1/A has stated that the accused peeps inside the toilet when she puts on the light of the toilet. There are no contradictions or discrepancy in her version.
7. It is the defence of the accused that there was a quarrel between the complainant and the landlord due to which he has been falsely implicated in this case. The above defence is not tenable as it is highly improbable that the alleged quarrel is with the landlord and the said landlord has not been implicated but the accused i.e. a tenant is implicated. The complainant has stated that she did not know the accused prior to this incident. She came to know the name of the FIR No. 244/13 State v. Shailesh Page Number 6 of 13 accused as Shailesh only on the date of incident. Hence, there is no ground for the complainant to falsely implicate a person whom she does not even know prior to the date of incident or with whom she has no previous enemity. In case, there was any such alleged enemity or quarrel with the owner/landlord, the accused could have examined his landlord in his defence. The accused did not lead any evidence in defence for reasons best known to him. The said landlord himself is alleged to have misbehaved with the complainant when she went to complain about the accused to him.
8. Another defence of the accused is that PW3, the mother of the complainant during cross examination stated that the matter has been settled between them and the accused. PW3 stated to have told the police that they do not want to pursue the matter as her daughter is already married. They did not want this case to come in the knowledge of her inlaws that is why they settled this matter. From the above version of PW3, she settled the matter with the accused under pressure as her daughter was married and they did not want her inlaws to know about this case. The present offence is non compoundable. Hence, entering into a settlement with mother of the complainant does not absolve the guilt of the accused. The version of PW3 during cross examination that there is no window in the toilet, seems to be the result of alleged settlement under pressure. The statement of the complainant and statement of IO / PW4 clearly shows that there is FIR No. 244/13 State v. Shailesh Page Number 7 of 13 one outside gate and the window of the toilet. PW4 has stated that the toilet is made on the first floor in front of which the accused resided as per site plan Ex.PW1/B.
9. All the more, though testimony of PW3 shows that a settlement has taken place but PW3 has firmly stated that the incident took place and the statement of the complainant was recorded by the police. PW3 was informed about the incident by her daughter i.e., the complainant after the incident. The conduct of the complainant in informing her mother after the incident is relevant as regards the testimony of PW3. What she has deposed regarding the incident is a mere hearsay as deposed by the complainant. In the presence of PW3, the complainant was misbehaved by the landlord when she went to complain about the conduct of accused Shailesh. She has already admitted the same in her cross examination. This statement of PW3 also points towards the fact that the offence of peeping inside the toilet was committed by the accused about which her daughter went to complain to the owner/ landlord.
10. The accused himself has admitted that complainant came to her room and slapped him. Why did he not raise his voice, in case he was being wrongly slapped by the complainant? He has stated in his statement u/s.313 Cr.P.C that he was sleeping on the terrace. Thus, from the version of the accused himself and the cross examination of the complainant and her mother, it is clear that the accused was FIR No. 244/13 State v. Shailesh Page Number 8 of 13 present at the spot. There is contradiction in the version of the accused recorded u/s. 313 Cr.P.C where on the one hand he says that his landlord/owner of the room called the police and on the other he says that he himself called the police. No such DD entry of the alleged calls to the police made by the accused have been produced by the accused or got summoned in his defence. Hence, the defence of the accused does not inspire confidence.
11. In view of the facts and circumstances of the case and the above discussions, it is clear that accused was peeping inside the toilet when the complainant went there to attend nature's call. It is clear that the accused was watching the complainant engaging in a "private act" i.e. using a lavatory where it would reasonably be expected that her privacy would not be infringed. Hence, accused was watching the complainant in circumstances where she would usually have the expectation of not being observed by the accused. All the ingredients of the offence u/s 354C IPC are proved against accused. Accused Shailesh stands convicted for the offence U/s 354C IPC. Put up for hearing on the quantum of sentence on 04.04.2016. Announced in open Court on this 30th day of March 2016 Susheel Bala Dagar Metropolitan Magistrate Mahila Court02,North West Rohini Courts, Delhi All pages signed.
FIR No. 244/13 State v. Shailesh Page Number 9 of 13 FIR No. 244/13 PS South Rohini State v. Shailesh 06.04.2016 ORDER ON SENTENCE Present: Ld. APP for the State.
Convict with Ld. Counsel Shri P. Chandra.
Arguments on the point of sentence have already been heard.
Ld. Counsel for convict submits that convict is a young man of about 22 years of age and at the time of commission of the offence, he was about 19 years of age. This is the first involvement of the convict in any offence and he has shown remorse for the same. Counsel has prayed for leniency for the convict.
Ld. APP for the State has opposed the aforesaid submissions of the convict and has submitted that the maximum punishment be awarded to the convict, so that a deterrent message be sent to the society and like minded people be discouraged from entering into crime against woman. Ld. APP further submits that minimum punishment is of one year as Section 354C IPC is worded as "...that on first conviction imprisonment shall not be less than one year...". She submits that maximum punishment be given to the convict which is required for deterrence of such people committing voyeurism in the present scenario where crime against woman is on the increase.
FIR No. 244/13 State v. Shailesh Page Number 10 of 13 The sentencing is a delicate act in which the Court is required to take the over all view of the facts and circumstances of the case and the Court cannot be oblivious of the fact that the sentence should serve prolific purpose of serving the society at large. The convict must be awarded such a sentence, which discourages the other like minded people of the society from such offences against woman. The Court has also to keep in mind that the purpose of sentence is not only deterrent but also reformative.
Voyeurism as an offence has been inserted in the Indian Penal Code by the Amendment Act in the year 2013 as such offences against women were on increase. Voyeurism is a ridiculous form of enjoyment for men but a mental torture for women. Men who indulge in such enjoyment do not seem to realize that they are infringing on the fundamental right to privacy of her body of the woman. Due to such offenders the women do not feel safe inside such places where she would usually expect not to be observed. It seems that even behind the closed door of the lavatory, the women's right to privacy is at stake. Zerotolerance to the crime against women is the need of the hour. The seriousness of the offence lies not in the extent of punishment it carries but on the impact, it has on the social psyche and public order. A societal change is required via education and awareness to curb such kind of crimes. Also, there is a need for formulation and implementation of policies by the government to FIR No. 244/13 State v. Shailesh Page Number 11 of 13 create sensitization of the masses, more so, the youth in schools and colleges towards the need for gender equality and awareness about the laws and punishments for offences related to crime against women.
In the present case, the convict was about 19 years of age at the time of offence. He has prayed for leniency saying that he apologized to the complainant and he is now showing remorse for his conduct. In the light of the facts and circumstances of the case and by balancing the mitigating or extenuating and aggravating factors, I am of the opinion that the convict namely Shailesh be sentenced to simple imprisonment for one year for the offence u/s 354C IPC and to compensate the victim/complainant in the sum of Rs.10,000/ for the offence under Section 354C IPC within one month from today i.e., on 06.05.2016 in default simple imprisonment for three months. Ordered accordingly.
Copy of the order be given to the convict free of costs.
Announced in the Open Court Susheel Bala Dagar th On this 06 day of April, 2016 Metropolitan Magistrate Rohini Courts, Delhi.
At this stage, an application u/s 389 Cr P.C for suspension of the sentence is moved by the convict through his counsel today in the Court. Heard. In view of the submissions made, the application stands allowed. Sentence of the convict is suspended FIR No. 244/13 State v. Shailesh Page Number 12 of 13 for one month i.e., till 6.05.2016 to enable him to file an appeal or to serve the sentence. Convict is admitted to bail on his furnishing a personal bond and surety bond in the sum of Rs. 20,000/ Bonds furnished and accepted till 06.05.2016.
Susheel Bala Dagar Metropolitan Magistrate Rohini Courts, Delhi.
FIR No. 244/13 State v. Shailesh Page Number 13 of 13