Delhi District Court
Fir No: 837/97 1 State vs . Dara Singh on 19 March, 2012
FIR No: 837/97 1 State vs. Dara Singh
IN THE COURT OF MS. RACHNA T.LAKHANPAL, METROPOLITAN
MAGISTRATE : ROHINI, DELHI.
FIR No. 837/97
PS - S. Puri
U/s. 354/506 IPC
ID No. 02404R0078931998
19.03.2012
STATE VS. DARA SINGH
Date of institution : 02.07.1998
Date of Commission of Offence : 17.09.1997
Name of the Complainant : Mahesh Aggarwal
Name, parentage & Add. Of the
Accused : 1. Dara Singh
S/o Sh. Birbal Singh
R/o C - 3/98, Sultanpuri,
Delhi
Offence complaint of : U/s 354/506 IPC.
Plea of the Accused : Pleaded Not Guilty.
Final Order : Acquitted
Date for reserve of Order : 16.02.2012
Date of announcing of order : 19.03.2012
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The present FIR was registered at PS Sultanpuri against accused namely Dara Singh for the offences u/s. 354/506 IPC FIR No.837/97 State vs. Dara Singh 1 of 13 FIR No: 837/97 2 State vs. Dara Singh whereupon the IO had made an endorsement and the Duty Officer had subsequently recorded the FIR. Gist of the complaint is as under:
2. The prosecution story commenced upon receipt of DD no. 65 B dated 17.9.97, at around 4p.m. It has been alleged by the complainant Mahesh Aggarwal that he is running a grocery shop. He further alleged that on 17.09.1997 at around 2p.m., he received a phone call from his wife, she told him that accused Dara Singh had run away from the house after misbehaving with the daughter and threatening his wife. It has been alleged that accused is a TV Mechanic and when he reached at the house of the complainant, his wife and her daughter was there. The wife was in the other room lying on the bed as she was suffering from fever. There was no electricity. When the victim Deep Shikha was going upstairs to turn on the generator accused Dara Singh followed her. He caught her with his hand and started kissing her. When she tried to raise alarm, accused threatened to kill her. In the meantime, complainant's wife also reached there, accused caught hold of his wife and threatened her also, then he ran away from there. He reached at the shop of the complainant, however after seeing the complainant talking on the phone with his wife, he ran away from there.
3. Investigation commenced and concluded by filing the challan. Arguments on charge were heard and charge u/s 354/506 IPC was framed against the accused Dara Singh to which he pleaded not guilty and opted to face trial.
FIR No.837/97 State vs. Dara Singh 2 of 13
FIR No: 837/97 3 State vs. Dara Singh
4. In order to bring home the guilt against the prosecution has examined as many as seven witnesses.
PW1 is Ct. Umesh, who brought the rukka.
PW2 is Mahesh Aggarwal, who is complainant itself. PW3 is ASI Zile Singh who registered FIR. and made endorsement.
PW4 is Smt. Neelam, who is mother of victim.
PW5 is HC Gurjant Singh, who recorded DD entry.
PW6 is SI S.K. Rana, who prepared site plan, arrest memo and personal search memo of accused.
PW7 is Smt. Deepshika, who is victim herself.
5. Statement of accused Dara Singh been recorded u/s 313 Cr.P.C., wherein he has denied all the allegations made against him. He stated that he is innocent and falsely implicated in the present case. He had gone for repairing of TV, which was not under guarantee period and on that day of incident after the repairing, he asked the family members to pay the bill which was approximately Rs. 5500/. Upon this family members of the complainant refused to pay the same and started abusing him. They also threatened him to falsely implicate him, if he insisted them to pay the bill. When he tried to take out the picture tube, which he had installed they warned him not to touch the TV. Thereafter, he went to the shop of complainant and told this fact. Complainant also not paid the bill. Then he went to his employer and informed about the matter. That is why, this false case has been made against him. He further FIR No.837/97 State vs. Dara Singh 3 of 13 FIR No: 837/97 4 State vs. Dara Singh submitted that due to this complaint, he lost his job. Accused opted to lead evidence
6. Defence has led evidence of DW1 Sh. Devanand, who deposed that in the year 1997, month September he was working in VIDEOCON service centre, Kirti Nagar. He further deposed that accused Dara Singh attended his duty on the day of incident on routine basis and he was deputed on a call and they handed over a picture tube to attend the call. Accused left the VIDEOCON service centre around 2p.m. after lunch. He deposed that he came to know that Sachdeva (Manager), who was present in the store room, received a telephone call from accused that guarantee period of the said TV had been expired. Sachdeva advised him to return as the customer were not paying the money for repairing the TV set. He further deposed that accused returned and Manager Sachdeva in his presence told the accused that money of the picture tube will be deducted from his salary. He stated that there was no complaint against the accused in 78 years of his service.
7. Final arguments have been heard on behalf of accused as well as on behalf of the State and record has been meticulously perused. Before proceeding further to prove and analyse various testimonies, let us enumerate the essentials of offence which the prosecution is under a mandate to prove.
For better appreciation of facts Section 354 IPC is reproduced as hereunder: Section 354 of the Penal Code is in these words: FIR No.837/97 State vs. Dara Singh 4 of 13 FIR No: 837/97 5 State vs. Dara Singh "Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years with fine, or with both". For conviction under Section 354 of the Indian Penal Code, what the prosecution is required to prove is that :
a) an assault has been committed or criminal force used,
b) the object of the assault or criminal force is a woman, and
c) that it was with the intention of outraging the modesty of a woman or knowledge that it was likely that her modesty would be thereby outraged.
Assault has been defined in section 351 of IPC. Assault committed on women may be of various types and of varying degrees. Some of the other offences against women are rape punishable under Section 376 of the Indian Penal Code, and attempt to commit rape, which can be punished under Section 376/511 of the Indian Penal Code. There may be cases, and frequently there are, where the assault on a woman neither amounts to rape nor an attempt to commit it. It may still be such an assault as interferes with modesty of a woman or is considered indecent according to morality and in the eye of law. The provision contained in Section 354 of the Indian Penal Code is one of the few provisions, contained in the India Penal Code to protect against indecent behaviour or lust of men. It is also intended in the interest of decency and morals and the values that the legislature attaches to the protection of woman against such assaults is obvious from the fact that it has prescribed a punishment of imprisonment of either description for two years and fine without limit as maximum penalty for such an offence. In construing Section 354 of the FIR No.837/97 State vs. Dara Singh 5 of 13 FIR No: 837/97 6 State vs. Dara Singh Indian Penal Code this object of the legislature has not to be lost sight of.
8. In the instant case, PW4 and PW7 are eye witnesses of prosecution. PW4 has deposed in her examination in chief that the accused reached at about 1/1.30p.m. On 17.09.97. Earlier also he has visited her house 34 times to repair the TV, so she never suspected the accused. She was suffering from fever and lying on the bed in other room. There was no electricity, therefore, she asked the daughter to turn on the generator, which was upstairs. She asked the accused to sit in TV room and wait for a moment. After starting generator, when no light came, she called the accused from her room but on getting no response from him, she got suspicious. She came in the TV room and found that accused is not in the room. She went upstairs and saw the accused in the corner of her kitchen was forcibly kissing her daughter on her face. She took out her chappal (slippers) and threw on the accused. On seeing this, accused released her daughter and caught hold of her neck. Her daughter raised noise. PW4 further stated that accused pressed her mouth and threatened her. When her daughter raised alarm, the accused fled away from there after threatening her to kill, in case, she discloses this fact to anyone and lodges any report. She called her husband on telephone at his shop. She further deposed that people also gathered there.
9. Witness PW4 had given statement before the police, but surprisingly, on the same day her two statements were recorded. The other statement is her improved version. In her one statement , FIR No.837/97 State vs. Dara Singh 6 of 13 FIR No: 837/97 7 State vs. Dara Singh she stated that accused came around 1:00p.m.. In her other statement, she deposed that accused came around 1.45p.m. In her one statement, she did not stated that she threw slipper /chappal on the accused. In her cross examination, she stated that her statement was recorded only once. Again, she said that she do not remember how many times it was recorded. It was recorded on the day of incident. She deposed that she did not know what was recorded by IO, but she did not give different statements twice. She deposed that she did not know when the said TV set was purchased. She deposed that accused earlier came five times and there was no complaint from the accused and he did not charge any money for repairing of TV during the guarantee/warantee period. She deposed that accused did not come to his husband's shop, after the incident but her husband tried to catch hold of the accused on the way when the accused was trying to ran away. She deposed that her statement was recorded around 2p.m. In her cross examination, she deposed that incident happened around 1.30p.m. She deposed that on the day of incident TV was not under guarantee period.
10. The second eye witness is PW7. She appeared in the witness box and deposed that she did not remember the year and date of incident but it was in the year 1997. Accused came at around 1.45p.m. for repairing the TV. She deposed that her brother was also present at home. Her mother was not feeling good, she was sleeping in another room. There was no electricity. Her mother asked her to turn on the generator. She went to up stairs, in the FIR No.837/97 State vs. Dara Singh 7 of 13 FIR No: 837/97 8 State vs. Dara Singh meantime accused came there, caught her hand and tried to kiss her. Thereafter she raised alarm and mother came there. Accused held her from her neck and thereafter he released her and held her mother's neck and threatened to kill her. She got afraid and came down. Thereafter, accused ran away from there and her mother called her father. In her cross examination, she deposed that when she raised alarm 56 persons gathered there, however she did not remember their names. She did not know whether the police recorded their statement or not. She did not remember whether she told the police about the presence of 56 persons at the time of incident. She deposed that she had told the police that accused tried to embrace her. She further deposed that from the room where her mother was taking rest stair case were visible. Now, I will examine and compare the testimonies of above discussed eye witnesses. There are major contradictions regarding the incident itself which shall shake the story of the prosecution. First and foremost contradiction is that PW4 in her examination in chief has deposed that when she reached the stairs she saw that accused was kissing her daughter and that was such a vulgar scene which could not be explained, whereas, victim deposed that accused tried to kiss her and thereafter in her cross examination she deposed that she told the police that accused had tried to embrace her only. Both witnesses are eye witnesses and there is such a major contradictions about the incident itself in the testimony of both witnesses. There is vast difference between badly kissing as narrated by PW4 and action FIR No.837/97 State vs. Dara Singh 8 of 13 FIR No: 837/97 9 State vs. Dara Singh of embracement as narrated by PW7.
11. Furthermore, PW4 had deposed that she got suspicious when no electricity came and then she saw in the TV room that accused is not there. Thereafter, she went to upstairs, however PW7 deposed that when accused caught her hand, she raised alarm and her mother came there. PW4 did not mention about any shout or raising alarm of her daughter.
12. Furthermore, both the witnesses deposed that people gathered there at the spot but no such witness has been examined. The non examination of any such witness who had gathered at the time of incident after so much noise, could have brought light to the happening of incident.
13. Furthermore, PW7 deposed that her brother was also present, however PW4, remains silent about the presence of his son. If, I go by the version of PW7, then non examination of the brother of the PW7 also casts some shadow on the story of prosecution. Withholding the evidence of locality people and brother of PW7 is fatal to the case of prosecution.
14. Now, I will examine the testimony of PW2, who is not a direct eye witness and who is the complainant in the present case. He deposed that accused came to his shop at around 1:00p.m. He told him to go to his house for repairing of TV set. After ½ hour accused came back to his shop and told him that his children were lavelling false allegations against him while he was talking to him, he received a phone call from his wife that accused had committed FIR No.837/97 State vs. Dara Singh 9 of 13 FIR No: 837/97 10 State vs. Dara Singh wrong act and he should not allow the accused to live. He shouted at him to stop the motorcycle but he did not stop and sped away. PW4, deposed in her cross examination that accused did not go to the shop of her husband that is complainant, but her husband tried to catch the accused on the way when the accused was running. This is again a major contradiction in the testimony of both the witnesses. PW2 has deposed that when he was talking to PW4, PW4 asked him not to leave the accused that means PW4 was aware that accused was standing in the shop of PW2. But on the other hand, PW4 deposed that accused did not go to the shop of the complainant i.e. PW2. This contradiction again casts some doubt about the prosecution story. PW2 did not depose that he tried to catch the accused on the way. He deposed that he shouted on him and the accused sped away. PW2 is not an eye witness of the incident but the incidents which he narrated, which happened soon after the incident are again contradictory as compared to the version of PW4.
15. There is a major contradiction about time of incident also, which assumes importance in view of the above said discussions. In her statement, before Police U/s 161 Cr.P.C., PW4 deposed that accused came around 1:00p.m. On the same day she gave another statement where she deposed that accused came around 1.45p.m. PW2 deposed that accused came around 1p.m. to his shop and he went from there to his house and then after within ½ hour, he came back that means by 1.30p.m. he had come back. If, I go by the version of PW4, she deposed before the Police that FIR No.837/97 State vs. Dara Singh 10 of 13 FIR No: 837/97 11 State vs. Dara Singh accused came around 1.45pm. and before the court she deposed that he came around 1/1.30p.m. Even, if I go by another version of PW2, that accused came around at 1p.m. at his shop, admittedly his shop is about 1k.m. away from his house. Accused was on his bike that means he took 5 minutes to reach to the house of complainant. As there was no electricity, so immediately daughter of the complainant would have rushed to turn on the TV and at that time that incident had happened and within few moments he must have run away. Presuming, but not admitting, if this incident had happened it must have taken place within five minutes. And by 1.15p.m., he must have reached the shop of the complainant. Whereas, in her cross examination PW4 deposed that this incident happened around 2.30p.m. and her statement was recorded around 2p.m. These contradictions of the witnesses are not inspiring the confidence of this court. Generally a little bit time's difference itself does not shake the prosecution story but in the present case, as there are major contradiction about the happening of incident itself hence the differences of timings in the testimony of witnesses becomes important in the present case.
16. Furthermore, these contradictions assumes more importance in view of the defence of the accused that he had gone to repair the TV. After repairing he asked for money for changing picture tube. The bill was for Rs. 5500/. The TV was not under guarantee period. The complainant and his family had falsely implicated him as they do not want to give money and they wanted FIR No.837/97 State vs. Dara Singh 11 of 13 FIR No: 837/97 12 State vs. Dara Singh that as the accused had previously also repaired the TV without cost and this time also it should be without cost. PW2 has admitted that accused had come back to his shop within ½ hour. No prudent person after committing the alleged incident would go to father or relative of victim and tell them about his misbehaviour on his own.
17. Furthermore, there are contradictions regarding arrest of the accused also. As per PW1 Ct. Umesh, accused was arrested at 5.45p.m. from the place of occurrence i.e. house of the complainant, whereas, as per PW2 accused came to police station after about 2 hours that means around 6.30p.m. PW6 SI S.K. Rana deposed that he arrested the accused at 3.30p.m. On 17.9.97 from the house of the complainant, whereas, FIR was registered at 5.30p.m. No arrest memo is on record.
18. Furthermore, the first intimation of this incident was alleged at 4p.m. PW2 deposed that he immediately reached to his house after getting information on phone from his wife means he must have reached at his house around 1.30p.m. But the first intimation reached at 4.20p.m. Witnesses have failed to explain this delay in complaining this matter to the police. This time gap of around 3 hours is again fatal to the case of the prosecution. Not every kind of delay is fatal, but in such peculiar circumstances, this delay is pointing towards due deliberation.
19. Therefore, in view of the above discussion, I am of the view that testimonies of witnesses do not inspire the confidence of this court. It is also correct that normally a lady would not put her FIR No.837/97 State vs. Dara Singh 12 of 13 FIR No: 837/97 13 State vs. Dara Singh character at stake by advancing false allegations but this rule cannot be apply universally.
20. In view of the discussion above, the prosecution has failed to the prove the alleged offence beyond reasonable doubt, against the accused. Accused is entitled to get the benefit of doubt. Accordingly, the accused Dara Singh stand acquitted of the offences U/s 354/506 IPC. However, his surety bond shall remain extended till six months from today u/s. 437 A Cr.P.C. File be consigned to record room after necessary compliance.
(RACHNA T. LAKHANPAL) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
Announced in the open court today i.e. 19.03.2012.
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