Delhi District Court
State vs Sunil Kumar on 30 March, 2016
IN THE COURT OF MS. RICHA GUSAIN SOLANKI:
METROPOLITAN MAGISTRATE (SOUTH WEST)-01, MAHILA
COURT, DWARKA, NEW DELHI
State Vs Sunil Kumar
FIR No. 24/12
PS Kapashera
ID No. 02405R002532013
Date of institution of case : 17.08.2012
Date on which case reserved for judgment: 28.03.2016
Date of judgment : 30.03.2016
Advocates appearing in this case:
Sh. Chandrajeet Yadav, Ld. APP for the State.
Sh. Sunil Sharma, Ld. counsel for the accused.
JUDGEMENT U/s 342/323/354 IPC
a) Date of offence : 12.02.2012
b) Offence complained of : 342/323/354 IPC
c) Name of complainant : Saroj
d) Name of accused, his : Sunil Kumar, s/o Sh. Bhagwan Singh
parentage, local & permanent r/o H No. 1350, VPO Bijwasan,
residence Near Platform, New Delhi.
e) Plea of accused : Accused pleads not guilty and claims
trial.
f) Final order : Convicted for the offence u/s 354/342
IPC & acquitted for the offence u/s 323
IPC.
FIR No. 24/12 PS : Kapashera Page no. 1/14
State Vs Sunil Kumar
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Briefly stated the case of the prosecution is that on 12.02.2012 a complaint was received upon which DD no. 17A and 24A was registered. The same was marked to SI Vijender. When SI Vijender reached the spot, he found complainant Saroj lying on the bed. She was not saying anything. Her husband and mother in law were present but did not give nay statement regarding any scuffle. Complainant's husband refused to take her to hospital in PCR. Later complainant came to police station alongwith her husband, mother Shakuntla Devi and sister Poonam and on request she was taken to hospital in PCR. Information was received from hospital and same was registered as DD No. 28A. On 13.02.2012 statement of complainant Saroj was recorded. She stated that she got married to Sh Ravinder, who is the brother of accused Sunil, in the year 2001. Thereafter she started residing in the same house with accused Sunil but Sunil had an evil eye on her. On 12.02.2012 at around 4.00 pm she was alone in her room, her kids were playing outside and her husband Ravinder and mother in law Ramwati had gone to a doctor. Suddenly, Sunil entered her room and bolted it from the inside. When she asked him what he was doing, he slapped her and told her that he liked her. He started misbehaving with the complainant. He pressed her chest and tried to disrobe her. She raised alarm, however Sunil FIR No. 24/12 PS : Kapashera Page no. 2/14 State Vs Sunil Kumar managed to remove her salwar but not the underwear. She managed to push him and escaped through second door into the bathroom where she wore another salwar. Sunil also came and hit her with kicks and fists in the baramah. In the meantime, on hearing the noise, Sunil's wife Dharamwati also came down from the terrace. Complainant made PCR call but Sunil still beat her. Complainant lost consciousness and was taken to hospital in PCR by her sister Poonam. She alleged that even earlier accused had tried to misbehave with her but no complaint was lodged.
During investigation, MLCs of complainant, accused and accused's wife were collected from the hospital. Statements were recorded. Site plan was prepared at the instance of complainant.
2. Present charge sheet was filed for the offence u/s 376/511/323/342 IPC but the Court of Ld. Additional Sessions Judge discharged the accused for the offence u/s 376/511 IPC.
3. Charge u/s 342/323/354 IPC was framed against the accused on 26.11.2012 to which he pleaded not guilty and claimed trial.
4. Prosecution examined six witnesses in support of its case. 4.1 PW-1/complainant entered the witness box on 31.05.2013 and deposed on the lines of the complaint. She relied on her complaint Ex. PW1/A and her statement given u/s 164 Cr.PC as Ex. PW1/B. She FIR No. 24/12 PS : Kapashera Page no. 3/14 State Vs Sunil Kumar correctly identified the accused.
In her cross examination, she stated that she got married to Ravinder in the year 2011. She stated that Sunil had molested her earlier also after about one year of marriage but she made no complaint due to the matter getting compromised in the family. She stated that accused Sunil would daily/usually molest her. She stated that accused took 4-5 minutes in taking her salwar off. She stated that he did not chase her in the bathroom. She stated that she also made call to her husband before she became unconscious, who then informed her mother and sister.
4.2 PW-2/SI Saroj Bala entered the witness box on 28.09.2013 and stated that she went to the spot where she prepared site plan Ex. PW2/A at the instance of PW1 and arrested accused vide memo Ex. PW2/B. She collected MLCs of PW1 Mark PW-2/1 and Mark-PW2/2. She correctly identified the accused.
In her cross examination, she stated that public persons refused to join investigation stating that they do not wish to involve in police matter and it was a family dispute.
4.3 PW-3/Poonam Solanki entered the witness box on 10.01.2014 and stated that she was informed by the kids of PW1/her sister that she was FIR No. 24/12 PS : Kapashera Page no. 4/14 State Vs Sunil Kumar being assaulted. When she and her mother reached the matrimonial house of PW1, they found her injured and unconscious. They took her to PS Kapashera in a TSR from where she was taken to Safdarjung hospital in PCR. She correctly identified the accused.
In her cross examination, she stated that when she reached she found PW1, her husband, her mother in law and her kids but not the police. She was informed that police had already come and left. She stated that she reached PS by 5.45/6 pm and the hospital at 6.30-7.00 pm. 4.4 PW-4/SI Vijender, entered the witness box on 26.02.2014 and stated that he received DD No. 17A Ex.PW-4/A upon which he went to the spot alongwith Ct Rajpal. There, he found PW1 lying on the bed and her husband and mother in law. He inquired them about the incident but they told nothing and refused to go to hospital by PCR. After about 1-2 hours, they all came to PS and went to hospital in PCR. Another call regarding admission of injured was received and registered vide DD No. 28A Ex. PW4/B. Thereupon he collected MLC Mark-PW2/1 and recorded statement Ex. PW-1/A. He prepared rukka Ex. PW-4/C and FIR Ex. PW-4/D was registered. Accused and his wife Dharamwati also came to hospital and he obtained their MLCs. He correctly identified the FIR No. 24/12 PS : Kapashera Page no. 5/14 State Vs Sunil Kumar accused.
In his cross examination, he stated that when PW1 reached PS, she was not in a position to stand on her own and being carried by her husband and her sister. She stated that he did not inquire about the incident from the neighbour.
4.5 PW-4 (wrongly numbered) Dr. Kashika, entered the witness box on 04.06.2015 and proved MLC Ex. PW-4/A. In her cross examination, she stated that the colour of injuries is necessary to ascertain the age of injuries and the colour of injuries has not been mentioned in the MLC.
4.6 PW-5/Dr. Pallavi, entered the witness box on 04.06.2015 and proved MLC Ex. PW-5/A.
5. Statement of accused was recorded on 29.06.2015 wherein all the incriminating evidence was put to him and he denied all the allegations made against him. He stated that he has been falsely implicated in the case. He further stated that PW1 is his real bhabhi and there was a previous property dispute between him and his brother Ravinder. He stated that on the day of incident PW1 and his wife had a dispute over playing of children and when he intervened, PW1 hit him with a broom and he got injured. He stated that his MLC was prepared. He examined two witnesses in his FIR No. 24/12 PS : Kapashera Page no. 6/14 State Vs Sunil Kumar support.
5.1 DW-1/Pradeep Kumar, entered the witness box on 14.07.2015 and deposed that he witnessed the present incident which was a quarrel between two ladies. He stated that he was the neighbour of accused and his voter I.D is Ex. DW-1/A. After 3.00 pm on Sunday he heard noises of quarrel from the house of accused and found PW1 and accused's wife quarreling with each other. When he went to the spot, he came to know that a quarrel had taken place over the issue of playing of children. Both the ladies caught each other's hair and then the fight became more fierce. Other ladies tried to intervene. When Sunil came from his room and tried to intervene, PW1 hit him with a broom on his nose. The fight stopped due to people's intervention.
In his cross examination, he stated that his house is situated 100 feet away on the back side of house of accused. He stated that it takes 2-3 minutes from his house to reach the house of accused. He did not know the name of either PW1 or the wife of accused. He stated that the dispute started at about 3.00-3.15 pm and lasted for one hour. He stated that accused reached the spot 10-15 mins after he reached the spot.
5.2 DW-2/Dharamwati, entered the witness box on 06.10.2015 and
FIR No. 24/12 PS : Kapashera Page no. 7/14
State Vs Sunil Kumar
deposed that on 12.02.2012 children were playing inside her house when a shuttle went on the wheat container. She told the children not to play there but at this PW1 started verbally abusing her and the children. When DW-2 objected, PW1 attacked her, caught her hair and kicked her. In the meantime, some neighbours and accused came. When accused tried to intervene PW1 picked up a broom and hit on his nose. After about half an hour, police came and went back saying that it was a dispute between women. After 10-15 mins PW1's parental family came and forcibly entered DW-2's house. They attacked DW-2 but she was saved by neighbours. DW-2 was taken to Safdarjung hospital and was sent back home. She relied on certified copy of civil suit filed by her mother in law against accused as Ex. DW-2/A. She also relied on copy of complaint dated 11.09.2015 as Mark DW-2/A, complaint dated 12.09.2015 as Mark DW-2/B and copy of civil suit as Mark DW-2/C. In her cross examination, she stated that she and PW1 used to reside in the same house but in rooms opposite to each other. She stated that her husband had returned from the shop at about 1.00 pm. She stated that her scuffle with PW1 took place at around 3.00-3.15 pm and went on for one hour. At that time, her husband and daughter were present in their room.
FIR No. 24/12 PS : Kapashera Page no. 8/14
State Vs Sunil Kumar
6. I have heard Ld. APP for State and Ld. Counsel for accused.
7. In order to bring home the guilt of accused u/s 354 IPC, prosecution had to prove that the accused was present at the place and time of incident and that he used criminal force on PW1 intending to or knowing it to be likely that they will thereby outrage the modesty of PW1.
As per the prosecution, PW1 is the only eye witness of the incident. Although in her statement u/s 164 Cr PC, PW1 stated that her kids had come on hearing her cries but they have not been made a witness. PW3 reached at the spot after the alleged incident had already taken place. By that time police had already come and left. She said she only saw PW1 unconscious and injured after which took her to PS Kapashera and then to Safdarjung hospital.
PW1 stated that accused had entered her room and bolted it from the inside. He then groped her breast and removed her salwar. In her cross examination PW1 stuck to her stand insofar as the act of molestation is concerned.
Ld. Defence counsel has argued that PW1 stated accused took about 4-5 minutes in removing her salwar which is too longer period for the said act. On the other hand Ld. APP had argued that the act may have taken the said time because there was resistance from FIR No. 24/12 PS : Kapashera Page no. 9/14 State Vs Sunil Kumar PW1.
I agree with Ld. APP that the accused must have faced resistance from PW1 and therefore, he may have taken a longer time. Further, it is to be borne in mind that in such like circumstances it is natural for a person to feel that the trauma is continuing since long and the actual period may not have been 4-5 minutes. Nevertheless, PW1's case cannot be disbelieved only on this ground. Moreover, the MLC of PW1 Ex. PW-4/A and Ex. PW-5/A shows that PW1 had abrasions over her abdomen and extending to the flank, indicating that accused had attempted to disrobe PW1.
On the other hand DW1 and DW2 have stated that the real scuffle was between PW1 and accused's wife (DW2). They have both portrayed that a fierce fight had taken place between the two ladies wherein they hit each other and pulled each others hair, however the MLC of DW2 does not match this narration. The case of defence is that accused was present in the house when the fight started and the fight went on for about 1 hour. DW1 who is the neighbour of accused came and was informed by public persons that a scuffle has broken due to playing of children. He appears to have made to attempt to contact the accused. Thereafter accused came and PW1 hit on his nose with a FIR No. 24/12 PS : Kapashera Page no. 10/14 State Vs Sunil Kumar broom. It is strange that a big fight was taking place in the house of accused, involving his wife, but he did not come out of the room. It is unbelievable that a fight so big and noisy was taking place that persons from neighbourhood gathered but accused and his daughter did not step out of his room for 10-15 minutes.
DW-2 also deposed that after the police left the parental family of PW1 came and attacked her and she was saved by the neighbours. DW-1 did not say anything about the attack by PW1's parental family. Further, when the police arrived at the house of PW1 and accused, neither the accused nor his wife/DW2 tried to tell the police about the injury on his nose. In fact, police met only PW1, her husband and mother in law but not DW-2 or the accused. Further, no PCR call was made by either DW-2 or accused regarding the attack by broom or attack by PW1's parental family.
Ld defence counsel has argued that accused was hit with a broom and consequently he started bleeding from the nose and this is fortified by the MLC of accused. However the MLC of accused only notes that accused told the doctor about nasal bleeding but he was not found having any injury except minor scar of nail over face.
As such, the testimony of both DW-1 and DW-2 does not FIR No. 24/12 PS : Kapashera Page no. 11/14 State Vs Sunil Kumar inspire confidence. On the other hand, the testimony of PW1 has remained uncontroverted in so far as Section 354 IPC is concerned.
8. In order to prove the offence of wrongful confinement, prosecution had to prove that accused had restrained PW1 in a manner as to prevent her from proceeding beyond circumscribing limits. It is the case of prosecution that PW1 was wrongfully confined in a room by the accused before he molested her. PW-1 deposed in her examination in chief that as soon as accused entered her room, he closed the room from the inside. In this aspect also nothing material came from the cross examination. PW1 stated that she managed to escape only through the second door opening towards the bathroom. However, until that door was opened by PW1, there was a clear intention and action of the accused to wrongfully confine PW1 within the four walls of the room.
Ld. defence counsel has argued that there was dispute over property between the parties and therefore, the present case is false. Majority portion of the cross examination is devoted towards the civil dispute of the parties. Likewise, DW-2 also narrated about the civil disputes between accused and the rest of the family. However, Ex. DW-2/A and documents Mark DW-2/A to Mark DW-2/C are all filed much after the present FIR and therefore, I am not able to place much FIR No. 24/12 PS : Kapashera Page no. 12/14 State Vs Sunil Kumar weight on this contention of Ld. Defence counsel.
9. Accused has also been charged for the offence u/s 323 IPC i.e. he voluntarily caused hurt to PW1. In this regard, apart from the testimonies of PW 1 and PW 3, prosecution has relied on MLC Ex.PW4/A and Ex PW5/A. These MLCs records that PW1 suffered superficial bruise on cheek and abrasion over abdomen till right side flank.
PW1 stated that after she ran out into the baramdah, accused followed her and beat her after which she made PCR call and became unconscious. However in her cross examination, she stated that she also called her husband before she passed out and her husband called her sister. Contrary to this PW1's sister PW3 stated that the kids of PW1 had called her. Further PW1 stated in her cross examination that she was unconscious when she was taken to hospital and PW3 also stated that she saw PW1 unconscious and lying in the presence of her husband and mother in law. The husband and the mother in law of PW1, who were present at the spot since before PW3 have also not been made witnesses. Moreover, PW1's MLC Ex PW4/A reflects that she was conscious as well as oriented. Ex PW4/A and Ex PW5/A do not reflect that there was any history of unconsciousness and in fact it does FIR No. 24/12 PS : Kapashera Page no. 13/14 State Vs Sunil Kumar not even mention any injuries as are likely to render a person unconscious. The vital stats are also shown to be normal.
PW4 stated that he found PW1 lying on the bed and her husband and mother in law but he did not say that she was unconscious. He also stated that inquired about the incident but her husband and mother in law told nothing and refused to go to hospital by PCR. If PW1 was indeed unconscious at that time, there was no reason for her family to have refused to take her to hospital.
These facts when viewed vis a vis the allegations made render the case of prosecution doubtful in so far as offence under Sec 323 IPC is concerned.
10. Prosecution has been able to establish the guilt of the accused for the offence u/s 354/342 IPC beyond reasonable doubt but not for the offence u/s 323 IPC. Accordingly, accused Sunil Kumar is convicted for the offence u/s 354/342 IPC but is acquitted for the offences u/s 323 IPC.
ANNOUNCED IN THE OPEN COURT ( RICHA GUSAIN SOLANKI )
TODAY ON 30th March, 2016 MM-01(SW), Mahila Court
Dwarka/Delhi
FIR No. 24/12 PS : Kapashera Page no. 14/14
State Vs Sunil Kumar