Delhi District Court
State vs Sonu @ Shaktiman on 24 April, 2018
STATE V. SONU @ SHAKTIMAN
IN THE COURT OF Ms. MAYURI SINGH: METROPOLITAN
MAGISTRATE:MAHILA COURT01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI
State versus SONU @ SHAKTIMAN
FIR No.197/12
PS Neb Sarai
U/s354/451 IPC
CNR No.DLST020073502018
J U D G M E N T
1 Serial No. of the case : 1530/2012
2 Date of commission : 05.07.2012
3 Date of institution of the case : 01.09.2012
4 Name of complainant : Ms. M.D.
(Identity of the complainant has
not been disclosed as the offence
relates to section 354 IPC).
5 Name of accused person : Sonu @ Shaktiman S/o Sh. Ram
Charan, R/o 1055/23, L1st,
Sangam Vihar, New Delhi.
6 Offence complained of : U/s 451(1)/354 IPC.
7 Plea of accused : Pleaded not guilty.
8 Arguments heard on : 21.04.2018
9 Final order : Acquitted
10 Date of judgment : 24.04.2018
FACTS AS ALLEGED BY THE PROSECUTION:
FIR No.197/2012 Page No.1 of 15
STATE V. SONU @ SHAKTIMAN
1. It is the case of the prosecution that complainant alongwith her husband and son Bablu, was sleeping outside their room and her daughters were sleeping inside the house and light of outside was off. At about 01:00 - 1:30am, accused Sonu @ Shaktiman fondled over her thigh and breast with bad intention. She woke up and raised alarm. Her husband switched on the light and saw that accused Sonu @ Shaktiman was hiding himself under the cot. They caught hold of the accused. Accused started manhandling with her husband and tried to escape from the spot. However, her husband apprehended him. Due to manhandling, accused also received injury on his mouth. They called at 100 number. Before abovementioned incident, accused had entered her house in the night in past and she had made complaint in this regard to her landlord.
COGNIZANCE:
2. Cognizance of the offence was taken and accused was summoned.
CHARGE:
3. Charge was framed against accused for offence u/s 451/354 IPC.
PROSECUTION EVIDENCE:
4. Prosecution examined five witnesses to prove its case.
FIR No.197/2012 Page No.2 of 15STATE V. SONU @ SHAKTIMAN
a) PW1 X (name withheld) has deposed that she did not remember the exact day, month or year of the incident, however, the incident took place at about three years back, in summer season, (sometimes in the month of May and June) at around 01.00 am night, she was sleeping inside her house. She further deposed that accused entered her house through the roof and placed his hands on the thigh of her left leg. Thereafter, she woke up from sleep and raised an alarm. Her husband also woke up and apprehended the accused. Her children were present in the house and they also came to the room of PW1 and apprehended the accused. Thereafter, her husband called police on 100 number and after some time, police personnel reached her house. PW1 further deposed that they had handed over accused to the police. Police had recorded statement of PW1 vide Ex.PW1/A and she had shown place of incident to the police and site plan Ex.PW1/B was prepared at her instance. PW1 has further deposed that police arrested accused vide Ex.PW1/C. PW1 identified accused during her testimony in the court and admitted the suggestion of Ld. APP that the incident was of 05.07.2012 and that she alongwith her husband and son Bablu were sleeping outside her room, while daughters were sleeping inside the room and that accused had fondled her thigh and breast and due to this, she had woken up and that her husband and son caught hold of accused and later on handed him over to the police.
FIR No.197/2012 Page No.3 of 15STATE V. SONU @ SHAKTIMAN
b) PW2 Chander Pal has deposed that on 05.07.2012 he was sleeping with his wife PW1 and son Bablu outside his house in night hours. His two daughters were sleeping inside the house and light of outside was off. He further deposed that in the midnight, he heard sound of his wife and switched on the light after waking up and he saw one boy i.e accused under cot of his wife and she told him that accused had touched her thigh and breast. PW2 apprehended accused with the help of his son and called on 100 number. Police reached within half an hour and police was handed over the custody of accused. PW2 identified the accused in the court.
c) PW3 Bablu has deposed that on 05.07.2012 he was sleeping outside his house in night hours. His parents were also sleeping outside the house and his sisters were sleeping inside the house and light of outside was off and he heard sound of his mother and woke up. He saw one boy i.e. accused under cot of his mother and she told him that accused had touched her thigh and breast. PW3 and PW2 apprehended accused and PW2 called police. Police reached within half an hour and police was handed over custody of the accused. PW3 identified accused in the court and stated that prior to this incident, accused had entered his house for which he was warned by PW3.
FIR No.197/2012 Page No.4 of 15STATE V. SONU @ SHAKTIMAN
d) PW4 Ct. Vijay Kumar has deposed that on the intervening night of 4/5.07.2012, a call was received regarding molestation. He along with SI Brijesh visited house No.1014/21, L1st Sangam Vihar where PW1 to PW3 and accused were met. PW1 gave her statement and IO prepared rukka and handed over to PW4 who visited PS, got FIR registered, returned to spot with copy of FIR and original rukka. Accused was arrested and personally searched vide memos Ex.PW1/C and Ex.PW4/A. Medical examination of accused was got conducted and IO recorded statement of PW4.
e) PW5 SI Brijesh has deposed that on the intervening night of 4/5.07.2012, a call (DD no. 4A Ex.PW5/B) was received regarding Biwi Ke Upar Niyat Kharab Hai. He along with PW4 visited house No. 1014/21, L1st Sangam Vihar, where PW1 to PW3 and accused were met. He further deposed that PW1 gave her statement and he prepared rukka Ex.PW5/A and handed over to PW4 who visited Police Station, got FIR registered, returned to the spot and handed over copy of FIR and original rukka to PW5. PW5 had enquired from family members of the complainant about the case in the meantime. Accused was arrested and personally searched vide Ex.PW1/C and Ex.PW4/A. Site plan Ex.PW1/B was prepared and medical examination of accused was got conducted and they had returned to Police Station and asked accused to bring surety. Accused was released on bail. After completion of FIR No.197/2012 Page No.5 of 15 STATE V. SONU @ SHAKTIMAN investigation, chargesheet was prepared and filed in the court.
STATEMENT OF ACCUSED U/S 313 CR.P.C.
5. All the incriminating evidence was put to the accused and he denied the same.
DEFENCE EVIDENCE:
6. Accused did not choose to examine any witness in defence. Defence Evidence was closed.
FINAL AGRUMENTS:
7. Final arguments were addressed and record perused.
Ld. Counsel for the accused submitted that the DD information and the complaint are contradictory and on account of dispute with the landlord the accused was falsely implicated, being employee of landlord of complainant. It was further submitted that accused was beaten by son of the complainant prior to the alleged incident and MLC is deliberately not brought on record by IO and in order to save the son of the complainant namely Satender, this case is falsely registered against accused. It was further submitted that complainant is inconsistent regarding the place and manner of occurrence.
FIR No.197/2012 Page No.6 of 15STATE V. SONU @ SHAKTIMAN Ld. APP submitted that testimonies of prosecution witnesses are consistent and accused has not substantiated his defence by leading evidence.
LEGAL PROVISIONS TO BE SEEN:
8. Accused has been charged u/s 354/451(1) IPC.
For offence U/s 354 IPC the prosecution must prove that the accused person assaulted or used criminal force to any woman intending or knowing that it is likely that the modesty of the woman would be outraged.
For offence u/s 451 IPC prosecution must prove that house trespass was committed as per section 442 IPC and the same was done in order to commit an offence punishable with imprisonment. House trespass is criminal trespass in any building and criminal trespass is done when a person enters into the property in possession of another person with intent to commit an offence.
ANALYSIS OF SUBMISSIONS, APPRECITION OF EVIDENCE & REASONS FOR DECISION:
FIR No.197/2012 Page No.7 of 15STATE V. SONU @ SHAKTIMAN
9. According to the complaint Ex.PW1/A, accused caressed over the thigh and breast of the Complainant when she was sleeping outside her room and light was switched off. Complainant woke up and raised an alarm and her husband switched on the light and found the accused hiding underneath the cot of the Complainant. During her testimony, Complainant deposed that when she was sleeping inside her house, accused entered in her house through the roof and placed hands on the thigh of her left leg. This is in sharp contrast to the testimonies of PW2 and PW3, both of whom deposed that the incident took place outside the house. This is also in contradiction to the Complaint Ex PW1/A where it is specified that PW1 was sleeping outside the room. During her further testimony, PW1 elaborated that her husband and son had apprehended the accused and thereafter, her daughters had also come to her 'room'. There is nothing to reflect that during the apprehension and at any time thereafter, PW1 to PW3 and the accused had changed their positions or shifted to 'room' from outside. Hence, it is clear that according to the examinationinchief of PW1, incident took place inside the house. Memory of prosecutrix/victim PW1 could not have faded to the extent where while she remembered the minute details of incident, she forgot the most vital piece of information, i.e. the place of incident. It is only during a leading question put to her by Ld. APP that she accepted that on the date of incident, she was sleeping with her husband and son Bablu outside her room. Such an admission of suggestion is nothing but a clear attempt to bring her testimony in line with the facts as alleged in her Complaint Ex PW1/A. It is further seen that according to the FIR No.197/2012 Page No.8 of 15 STATE V. SONU @ SHAKTIMAN Complaint Ex PW1/A and testimonies of PW2 and PW3, they were sleeping outside the house with their mother. Now, it is not known if they or any of them was sharing cot with their mother. Further, if they were on separate cots, there is no investigation as to how many cots could have adjusted in the verandah outside the room. All of these questions become relevant when PW1 faltered on the very aspect of place of incident itself. Further, according to her Complaint, accused had touched her breast and thigh. However, during her testimony in the Court (examinationinchief), she mentioned only regarding touching of her thigh and did not talk about touching of her breast. No photographs of the spot have been placed on record to show the structure of the tenanted premises. In the site plan, there is an open space found outside the rooms and there is no door found on the way to the open space. According to PW1, there is no main gate outside the verandah but only a boundary wall. According to PW1, accused had entered her house through roof. At first, it is seen that this fact is conspicuously absent in her complaint. Further, there is no photograph to explain as to how from the roof, the verandah on ground floor could have been accessed. Further, there was nothing to explain why was the need for entry through roof, if the entry to verandah was open from the ground floor road side only and light of outside was also off and hence, entry from the front could not have been noticed either.
10. Ld. defence counsel pointed out to the document Ex.PW5/B i.e. the DD information on which the IO/SI Brijesh Kumar had visited the spot FIR No.197/2012 Page No.9 of 15 STATE V. SONU @ SHAKTIMAN along with PW4. A perusal of this document reflects that information was received by the police that landlord was having bad eyes over the girl (daughter) of the caller. It is submitted on behalf of the accused that the DD information was given to the police against the landlord, who is also employer of the accused and later accused was falsely roped in this case. A suggestion was put to PW2 during his crossexamination that he had made 100 number call to the police against his landlord regarding keeping bad eyes on his daughter and that later accused was falsely implicated. Though this suggestion was denied by PW2, the document Ex.PW5/B suggests otherwise. It is further interesting to note that during his crossexamination, IO/PW5 stated that "It is correct that DD Ex.PW5/B (sic) the complainant made allegation against the landlord of the house regarding 'Ghar Ka Malik Hamari Ladki Par Galat Nazar Rakhta Hai Jise Hamne Pakad Rakha Hai'." There is no investigation by the IO on the point of the DD information given to the police and this discrepancy is not at all explained by the prosecution. It is pertinent to mention that during crossexamination of PW3, he stated that his father/PW2 had made 100 number call to the police, but that he was not aware from which mobile number, the call was made. However, during his further crossexamination he stated that the mobile number 9650****76 belonged to his brother Satender. It is the same number which finds mentioned in DD No.4A, Ex.PW5/B. According to the accused, he had a tiff with Satender on the same day at night and he was beaten by Satender. The call was made to the police at midnight FIR No.197/2012 Page No.10 of 15 STATE V. SONU @ SHAKTIMAN from the number of Satender. PW1 to PW3 have given detailed description of where the family members including complainant, her husband, her son Bablu and daughters were sleeping, but it is strange that none of them whispered a word to suggest where Satender was. The call was made from the mobile number of Satender and when everyone was present in the family, the question is where Satender was and why the complainant did not at all reveal that she had a son named Satender and he was present at home. It is not stated by PW1 to PW3 that Satender was not present at home and the presence of his mobile phone at home leads to a natural inference that he was present at home. According to the testimony of PW1, her children were present at her house at the time of incident. It is strange that Satender was not joined in the investigation by the IO, despite the fact that the call was made from his mobile number and the information given to the police was entirely different from facts as stated by the complainant on visit of police to the spot. It is to mention that even the address of the complainant is wrongly given in the DD call as H. No.214/21, Budh Bazar, Delhi. There is nothing in the testimony of IO to suggest that when he made a call on that number to ascertain regarding the address, he was informed that the actual incident was not as given in the first call to the police. In the entire chargesheet, there is nothing to reflect that IO made any investigation or was given any plausible reason for the discrepancy in the version given to the police over DD call and in the statement to the police in writing.
FIR No.197/2012 Page No.11 of 15STATE V. SONU @ SHAKTIMAN
11. In the entire chargesheet, there is no mention of the preparation of any medical document of the accused, inspite of the fact that in the complaint itself, it is mentioned that accused had sustained injury on his mouth. According to the explanation offered by accused during his statement under section 313 Cr.P.C, he had sustained injury prior to the alleged incident. PW5 disclosed during his crossexamination that he alongwith PW4 and accused had been to Batra Hospital for medical examination of the accused. The medical document of accused is not on judicial record and during his crossexamination, a suggestion was given to IO that he did not file MLC of accused intentionally to save the son of the complainant. Considering the loopholes in the testimony of the complainant, discrepancy in the version in DD and the testimony of PW1 to PW3, the absence of MLC of the accused further throws a doubt over the prosecution case. According to PW5 and PW4, in their presence, the daughter of the complainant aged 15 years had visited there in 1015 minutes. It is strange that despite the fact that the intimation was received regarding evil eye over the daughter of the complainant and despite presence of daughter at the spot on visit of the IO, she was not enquired from by IO to know the true facts. As far as PW4 is concerned, his very visit to the spot of occurrence with PW5 is doubtful. He stated that "I do not know on which floor we went. I do not know exactly in which room statement of complainant was recorded..." Further, while crossexamination of PW1 suggests that neighbours had gathered in the presence of the police, according to police official PW4, no such public FIR No.197/2012 Page No.12 of 15 STATE V. SONU @ SHAKTIMAN person was present at the spot. It is strange that while incident is reported to be of verandah, PW4 talked about visit to the floor of the house.
12. According to PW3, prior to this incident, accused had entered into his house. According to the Complaint Ex PW1/A as well, accused had in past entered her house. However, neither PW1 nor PW3 disclosed the date, time and year when such alleged past incident took place. They have not even disclosed approximately how old that incident was. As far as testimony of PW1 is concerned, she is silent in her testimony regarding any such past incident. Even her husband PW2 did not state anything to this effect. Further, while according to PW3, accused was warned by them for such entry in past, according to PW1, complaint was made to landlord of accused in past. Both of these versions are also in contrast. Landlord of accused is not examined to throw light upon any such alleged past incident of trespass being reported to him in past. While in the Complaint Ex PW1/A it is specified that accused had made entry in past at night, PW3 is silent on this aspect of time of any such visit.
13. There are material contradictions in the testimonies of PW4 and PW5 as well, who are reported to have visited the house of Complainant together. While according to PW4, Complainant had given her complaint in her own hand writing at the spot, according to PW5, PW1 did not hand over any written complaint to him. According to testimony of PW2, his FIR No.197/2012 Page No.13 of 15 STATE V. SONU @ SHAKTIMAN wife is illiterate. The Complainant EX PW1/A bears thumb impression of complainant. According to PW4, before taking rukka, he signed on personal search memo of accused but according to IO, he did not prepare any document prior to sending of rukka. According to PW4, after preparation of Ex PW4/A, no addition or deletion was made therein. Now the question is if this document was prepared prior to sending of rukka, how come it bears particulars of the FIR. It is seen that there is nothing in the testimonies of PW4 and PW5 to suggest that PW1 to PW3 were taken to police station. PW3 deposed that he had not been to police station but PW2 deposed that he had visited police station with his wife and son. It is further interesting to note that while police officials did not state anything to suggest that PW1 to P3 were taken to police station at any point of time, according to PW2, accused was not at all apprehended at the spot but was taken by them to police station along with them. Now the question is if accused was at all taken to Batra hospital by police from the spot, how could he have been taken by PW2 to police station with him. No reasonable explanation has come forward to explain these discrepancies.
14. According to the Complainant, when police enquired from her family, neighbours from the locality had gathered there but police had not made any enquiry from them in her presence. It is strange that despite the inconsistent versions in DD call and that as revealed to IO by complainant, IO did not think it appropriate to join any neighbour in the investigation to throw light upon the incident or any incident prior to it.
FIR No.197/2012 Page No.14 of 15STATE V. SONU @ SHAKTIMAN
15. In view of the foregoing reasons, I hold that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. Hence, for the foregoing reasons, accused Sonu @ Shaktiman is acquitted for offence u/s 451(1)/354 IPC.
Pronounced in open court (MAYURI SINGH)
on 24th April, 2018 M.M./Mahila Court01/South District
New Delhi/24.04.2018
Digitally
signed by
MAYURI
MAYURI SINGH
SINGH Date:
2018.04.25
12:26:29
+0530
FIR No.197/2012 Page No.15 of 15