Delhi District Court
State vs . Raju on 20 January, 2016
IN THE COURT OF MS. MONA TARDI KERKETTA: MM:MAHILA COURT:
TIS HAZARI COURTS : DELHI
FIR No. 84/15
P.S. Lahori Gate
U/s 354/509 IPC
State Vs. Raju
1.UID No. of the case : 02401R0278842015
2.Name of the complainant : Ms. Harpreet Kaur, D/o Sh. Amarjeet
Singh
3.Date of commission of offence : 31.03.2015
4.Name of accused, his
parentage and address : Raju, S/o Sh. Prem Chand
R/o 101, Bhaat Camp, Gali No. 11,
Badarpur, Delhi
5.Offence complained of : U/s 354/509 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted U/s 509 IPC but acquitted
U/s 354 IPC
8.Date of such order : 20.01.2016
Counsels for the parties
For the State : Ms. Sarita Rani
For the Accused : Sh. Deepak Kumar, LAC
BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the complaint filed by the complainant Ms. Harpreet Kaur, D/o Sh. Amarjeet Singh, R/o H. No. E12/92, Khirki Extension, Malviya Nagar, Delhi, wherein it is stated that on 31.03.2015, the complainant along with Ms. Kajal was going for shopping from Kutub Pul to Chandani Chowk. At that time, one boy came near to the complainant and stocked her breast with his elbow but she ignored the same. The accused did not FIR No. 84/15 PS: Lahori Gate State Vs. Raju 1/9 stop there and put his hand into her Jeans pocket. The complainant continued to ignore his misconduct and left for some other shop.
2. It is further stated that while the complainant was purchasing belt in a shop, the accused came there also and told her "Mere saath chal, belt dila kar main pehna dunga" . Thereupon, the complainant became furious and caught hold the accused with the help of Ms. Kajal. It is further stated that the accused was found under the influence of liquor and his name was revealed as Raju S/o Prem Chand R/o 101, Bhaat camp, Gali No. 11, Badarpur Border, Delhi on interrogation. It is further stated that the matter was reported to the police on 100 number.
3. It is further stated that on receiving information, the police reached the spot and enquired into the matter. The police recorded the statements of complainant and Ms. Kajal. On the basis of the statement of complainant, a case was registered against the accused and investigation into the matter was conducted. The accused remained in the judicial custody through out the trial despite bail order on account of his inability to furnish personal bond and surety bond. The accused could not be released on personal bond for the want of his genuine address. The accused was given the assistance of a Legal Aid Counsel.
4. After completion of investigation, chargesheet was filed in the court against the accused U/s 354/509 IPC. Cognizance of the offence was taken and accused was summoned for the trial of the offence allegedly committed by him. He was supplied with the copy of charge sheet in compliance of provision given u/s 207 Cr.P.C. He was heard on the point of charge after completion of scrutiny of documents. Vide order dated 24.06.2015, charge U/s 354/509 IPC was framed against him, to which he pleaded not guilty and claimed trial.
5. Subsequent thereto, matter was fixed for Prosecution Evidence. In order to prove its case, the Prosecution produced following witnesses :
(a) IO/SI Bharat, appeared as PW 1 and proved arrest memo & personal search memo vide Ex. PW1/A & PW1/B,
(b) Ms. Harpreet Kaur, complainant, appeared as PW 2 and proved her complainant Ex. PW2/A. She also identified the accused, FIR No. 84/15 PS: Lahori Gate State Vs. Raju 2/9
(c) Ms. Kajal, appeared as PW 3,
(d) WHC Sudesh, appeared as PW 4 and proved the endorsement on the complaint of complainant vide Ex. PW4/A,
(e) HC/DO Harshay, Duty Officer, appeared as PW5 and proved roznamcha Ex. PW5/A, endorsement on tehrir Ex. PW5/B and the certificate U/s 65 B of Indian Evidence Act Ex. PW5/C, (f ) Ct. Kulvinder appeared as PW6.
The accused did not dispute the genuineness of proceedings recorded under section 164 CrPC, hence examination of Ms. Richa Gusain Solanki, Ld. MM, THC,Delhi was dispensed with and proceedings recorded under section 164 CrPC were exhibited as Ex.PA(colly)
6. After completion of prosecution evidence, the matter was fixed for recording of statement of accused under section 313 Cr. PC, which was recorded on 02.01.2016, wherein entire incriminating circumstances appearing on record were put to the accused, to which he denied as false and incorrect and claimed to have been falsely implicated. Subsequent thereto, the matter was fixed for final arguments.
7. During the course of final arguments, following arguments were made on behalf of the accused that:
(i) no offence under section 354 IPC is proved against the accused in view of admissions on the part of complainant and eye witness,
(ii) various contradictions and improvements can be seen in the testimonies of complainant and eye witness making their testimonies unreliable and untrustworthy,
(iii) various lacunaes in investigative proceedings can be seen and making the entire case doubtful,
(iv) the Prosecution has been unable to prove the guilt of accused beyond reasonable doubt and therefore, accused deserves to be acquitted, On the other hand, Ld. APP for the state made the following arguments that :
(i) the prosecution has been able to prove the guilt of accused beyond FIR No. 84/15 PS: Lahori Gate State Vs. Raju 3/9 reasonable doubt through the testimonies of its witnesses, who have supported each other on material particulars,
(ii) nonjoinder of public witness does not discard the complete case of prosecution,
(iii) contradictions appearing in the testimonies of Prosecution witnesses are minor in nature,
(iv) lacunae in police investigation should not viewed in favour of the accused,
8. The court has heard the arguments of both sides and perused the entire record including testimonies of witnesses and documents filed by the parties. Before appreciating the evidence, let us first discuss relevant legal provisions given under Indian Penal code. Section 354 IPC makes penal the assault or use of criminal force on a women 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;
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
Section 509 IPC provides punishment for use of word, gesture or act intended to insult the modesty of a woman. This section requires:
(i) intention to insult the modesty of a woman,
(ii) the insult must be caused
(a) by uttering any word or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or
(b) by intruding upon the privacy of such woman.
9. Let us now appreciate the evidence available on record in the light of aforesaid legal provisions. In the Oxford English Dictionary (1933 Edition), the meaning of the word ' modesty' is given as " womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct ( in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." In the case of RAJU PANDURANG MAHALE VS. STATE OF FIR No. 84/15 PS: Lahori Gate State Vs. Raju 4/9 MAHARASTRA AND ANOTHER AIR 2004 Supreme Court 1677, it was held that what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. 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.
10. Now adverting to the facts and circumstances of the present case. Firstly charge framed under section 354 IPC shall be dealt with. In this regard, PW2/complainant has deposed that she and Ms. Kajal were being followed by the accused while going towards Chandni Chowk. The accused came near and stocked his elbow to her breast and also put his hand into her Jeans pocket. Whereas , in her statement recorded under section 164 CrPC, she has stated that while shopping, the elbow of one boy stocked her breast but she ignored thinking that it might have happened so due to excess crowd. She has further stated that thereafter, she went on to purchase Salwar Suit etc. and while selecting also, the hand of the said boy stocked her jeans pocket, thereupon, she told him to refrain from doing it . She has further stated that the crowd gathered there provoked her to file a case against the accused by stating that " Aaj aapke saath hua hai, kal kisi aur ke saath bhi ho sakta hai".
11. She has further stated that the elbow & hand of accused would have stocked inadvertently . It further be observed that during crossexamination, she has admitted the place of incident being very much crowded and being under the influence of liquor, accused's hand stocked her breast. She has further deposed that public persons gathered at the spot instigated her to file a case against the accused. She has further deposed that she can not say as to who touched her breast. Similarly, during crossexamination, eye witness Ms. Kajal has also admitted the place of incident being very crowded and people pushing each other to find the way. She has further admitted that the accused did not touch complainant's breast but due to crowd someone else touched.
12. Perusal of testimonies of both the witnesses show various contradictory facts of alleged incident and it also become clear that there was no intentional FIR No. 84/15 PS: Lahori Gate State Vs. Raju 5/9 assault or use of criminal force to the complainant by the accused to outrage her modesty, instead, it is established on record that stocking of elbow & hand of accused upon the complainant's breast or bottom was on account of over crowding. As discussed above, he 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, the consequential reactions of the complainant were such at the time of incident, which could not be perceived as ones, which were capable of shocking her sense of decency. Hence, charge framed under section 354 IPC is not proved against the accused.
13. So far as, offence U/s 509 IPC is concerned, it be observed that the testimonies of both the witnesses have remained consistent and no contradictions can be seen in their depositions on this aspect. Both the witnesses have clearly testified that the accused told " belt nahi pehan pa rahe ho toh pehna du kya". Both have specifically deposed that they ignored the previous acts thinking it to be accidental but it was only when the accused uttered such words , the complainant asked him to refrain from using such words. The accused started fleeing from the spot on being confronted but complainant apprehended him with the help of Ms. Kajal. Hence, it becomes abundantly clear that uttering of such words annoyed the complainant and eyewitness. It also be observed that during crossexamination except giving suggestion, no substantial question has been put to the witnesses on these aspects and hence, these facts remained unrebutted and unchallenged. Accordingly, the charge framed under section 509 IPC is established against the accused .
14. So far as, arguments regarding nonjoinder of public witnesses despite their availability is concerned, it be observed that generally public persons do not want to get entangled in police cases. Even otherwise, it is well settled proposition of law, that the testimony of sole or interested witness can also be relied upon to secure conviction of the accused if found credible and reliable.
15. The possibility of false implication of the accused is further ruled out in view of the fact that the matter was immediately reported to the police at 100 FIR No. 84/15 PS: Lahori Gate State Vs. Raju 6/9 number, who reached at the spot at the earliest after receiving information and inquired into the matter. The statements of complainant and eyewitness were recorded on the same day. There is no substantial rebuttal of these aspect on behalf of the accused during cross examination.
16. The contradictions appearing in the testimonies of Prosecution Witness are minor in nature. The case of Prosecution can not be discarded completely for such minor contradictions as exact narration of facts of incident is not possible. The court is further of the view that faulty investigation of the case should not be viewed in favour of the accused when plethora of evidence is available on record to prove his guilt .
17. In view of the aforesaid background, the defence's failure to prove the innocence of accused is explicit. Accordingly, the accused is convicted under section 509 IPC but acquitted from the charge framed under section 354 IPC.
18. Put up for quantum of sentence.
Announced in the open court on 20.01.2016 (Mona Tardi Kerketta) MM02/Mahila Court Tis Hazari Courts, Delhi FIR No. 84/15 PS: Lahori Gate State Vs. Raju 7/9 FIR No. 84/15 PS: Lahori Gate U/s 354/509 IPC State Vs Raju 20.01.2016 Present : Ld. Sub. APP for the state.
Accused produced from JC.
Sh. Deepak Kumar, LAC Matter is fixed for clarification/order.
No clarification is required.
Vide separate judgment announced in the open court, the accused is acquitted from the charge framed under Section 354 IPC, however, he is convicted for the offence punishable under section 509 IPC.
Put for arguments on quantum of sentence at 03.00 pm Mona Tardi kerketta MM02: Mahila Courts THC: Delhi 20.01.2016 At 03:00 pm Present : Ld. APP for the state.
Convict produced from JC.
Sh. Deepak Kumar, LAC Matter is fixed for arguments on quantum of sentence. It is submitted on behalf of the convict that he belongs to a poor family and is a first time offender. It is further submitted that he has remained behind bars for substantial period of time and therefore a lenient view may be taken.
On the other hand, Ld. APP has submitted that crime against women is on the rise, therefore, the convict must be dealt with strictly in order to send message across society. She has further submitted that the convict deserves to be awarded maximum punishment prescribed.
The court has heard the arguments of both the sides and perused the entire record. The court is not inclined to grant the benefits of Probation of Offenders Act, 1958 to the convict keeping in view the facts and circumstances of FIR No. 84/15 PS: Lahori Gate State Vs. Raju 8/9 the case. In case of Public Prosecutor Vs Godise Devaiah 1994 Cri.L.J.349(AP), it has been held that "simply because in a given case, the provisions of Probation of Offenders Act are applied, it does not mean that the lower court should interpret it in a different way and release the accused under the said act. Showing leniency in such cases is nothing but encouraging the culprits to commit more offence and spoil one more life of an innocent girl". It is needless to state that the crime against women is on the rise and is required to be dealt with heavy hand.
Balancing the aggravating and mitigating circumstances, the court is of the view that ends of justice would be met if, the convict is sentenced to simple imprisonment for a period of 08 months for the offence punishable under section 509 IPC and further sentenced to pay fine of Rs 500/, in case of default in payment of fine, he shall further undergo simple imprisonment for 01 month. Fine not paid. However the convict shall be entitled to the benefit of section 428 Cr.P.C. and sentence awarded today shall be set off against already undergone period during the trial.
It be observed that the convict is in JC since 31.03.2015 i.e. for a period of 09 months and 20 days. After set off, nothing remains for sufferance of sentence awarded to the convict, therefore, the convict be set at liberty, if he is not required to be detained in any other case.
Jamatalashi articles shall be released to him as per seizure memo. Concerned Jail Superintendent shall be notified regarding sentence awarded to the convict. Copy of order on sentence be sent for his perusal .
Copy of this order also be given to the convict for free of cost. File be consigned to record room.
Mona Tardi kerketta
MM02: Mahila Courts
THC: Delhi 20.01.2016
FIR No. 84/15 PS: Lahori Gate State Vs. Raju 9/9