Delhi District Court
State vs . Raju @ Suresh & Anr. on 30 September, 2015
IN THE COURT OF MS. POOJA AGGARWAL: METROPOLITAN
MAGISTRATE02 (MAHILA COURT) : SOUTH DISTRICT:
SAKET COURTS : NEW DELHI
State Vs. Raju @ Suresh & Anr.
FIR No. : 174/13
U/S : 451/354A(1)(i)/509/506 (II)/34 IPC
PS : Sangam Vihar
UID : 02406R0266972013
DETAILS OF THE CASE
a) Serial number of the case : 230/2 (01.08.2014)
b) Date of commission of offence : 26.04.2013
c) Date of institution of the case : 24.09.2013
d) Name of the complainant : Smt. Meenakshi
e) Name, Parentage & Address : (1) Sh. Raju @ Suresh,
of the accused S/o Sh. Maan Singh,
R/o H.No. C151, Near Holi Chowk,
Sangam Vihar,
New Delhi
(2) Sh. Veeru
S/o Late Sh. Bhagwan Dass,
R/o H.No. C150, Near Holi chowk,
Sangam Vihar,
New Delhi
f) Offence complained of : Under Section 451/354A(1)(i)/
509/506 (II)/34 IPC
FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 1 of 16
g) Plea of accused : Pleaded not guilty.
h) Arguments heard on : 26.8.2015
i) Date of judgment : 30.09.2015
j) Final Order : Acquittal for accused Veeru
Conviction of accused Raju @ Suresh
under Section 451/354A(1)(i)/509 IPC
Acquittal of accused Raju @ Suresh under
Section 506 IPC.
BRIEF STATEMENT OF REASONS FOR THE DECISION
1.The accused Raju @ Suresh and Veeru were sent to face trial on the allegations that on 26.04.2013 at around 9.30 pm in furtherance of their common intention they came to the house of the complainant Meenakshi i.e. H.No. C194, Sangam Vihar, Near Holy Chowk, New Delhi in a drunken condition and they both abused the complainant and when she objected and tried to persuade them not to abuse, they entered into her house and caught hold of her right hand and pulled her outside her building and also threatened to kill her and that they thereby committed offences under Section 451/354A(1)(i)/509/506 (II)/34 IPC.
2. After registration of FIR on 27.04.2013, investigation was carried out and upon completion of the same, charge sheet was filed in court on 24.09.2013. Upon service of summons, both accused persons entered appearance and were duly supplied with the complete set of challan and documents in compliance of Section 207 of the Code of Criminal Procedure, 1973 on 17.12.2013. Vide order dated 22.04.2014, charge was framed against both the accused persons under Section FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 2 of 16 451/354A(1)(i)/509/506 (II)/34 IPC by the Ld. Predecessor to which both accused persons pleaded not guilty and claimed trial.
3. To prove its case and discharge the initial burden of proof cast upon it, the prosecution examined four witnesses. PW1 Ms. Meenakshi, the complainant herself proved her complaint Ex.PW1/A and was also witness to arrest vide memos Ex.PW1/B and Ex.PW1/C as also to the personal search vide memos Ex.PW1/D and Ex. PW1/E. PW2 HC Hariram had registered the case FIR no. 174/13 Ex.PW2/A upon receiving rukka Ex.PW2/B. PW3 Ct. Vijay had accompanied the IO, taken the rukka for registration of FIR and he was also the witness to the arrest and personal search of the accused persons. PW4 Investigating Officer (IO) ASI Malkhan Singh deposed regarding recording of statement of complainant Ex.PW1/A, preparation of rukka Ex.PW4/A, preparing site plan Ex.PW4/B and arresting the accused and conducting their personal search vide Ex.PW1/B to Ex.PW1/E. All the witnesses were duly crossexamined by the accused.
4. Prosecution Evidence was closed on 09.07.2015 and on 29.07.2015 the statement of accused persons were recorded under Section 313 Cr.PC wherein the incriminating evidence was put to each accused person and they both claimed that they were falsely implicated in the present case by the complainant. They further stated that they wished to lead defence evidence.
5. To prove their defence, accused examined two witnesses DW1 Sumita Devi and DW2 Smt. Kusum, neighbours. Both the witnesses were duly crossexamined by FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 3 of 16 the Ld. APP for the State.
6. On 26.08.2015 final arguments were advanced by Sh. Ritendra Singh, Ld. APP for the State and by Sh. Vinod Yadav, Counsel for both the accused. While the State argued that the prosecution has been able to prove its case beyond reasonable doubt, the accused put forth an argument that in view of the contradictions brought forth during crossexamination and in view of the discrepancy in the time of FIR registration and time of arrest as also in view of testimony of the two defence witnesses, the accused having raised reasonable doubt were entitled to the benefit of the same.
7. I have carefully considered the submissions made on behalf of the State as well as by the accused. I have also given my thoughtful consideration to the entire evidence placed on record.
8. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts. It is only if the State is able to discharge its burden, that the onus shifts on to the accused. As the accused has been charged with an offence under Section 354A(1) (i) IPC, it was for the State to prove that the accused had physically contacted the complainant and made advances involving unwelcome and explicit sexual overtures. It was further for the State to prove that the accused had entered into the property of the complainant with the intent to commit an offence punishable with imprisonment to prove offence u/s. 451 (I) IPC. It was also for the State to prove that the accused had threatened to kill the complainant with the intention to cause alarm to her to prove the offence FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 4 of 16 u/s. 506 (II) IPC. It was also for the State to prove that the accused persons had abused the complainant with words with the intent to insult her modesty to prove offence u/s. 509 IPC. It was also for the State to establish common intention of both the accused to commit the above offences.
Testimony of Eyewitnesses
9. PW1 Ms. Meenaxi, the complainant herein is the most material witness being the eyewitness to the alleged incident. As per the testimony of PW1 on 26.04.2013 at around 09:30 PM she was present at her house on the first floor alongwith her sisterinlaw Ritu and her 2 children aged about 10 years and 6 years. PW1 further deposed that at around 09:30 PM she went to use the wash room constructed at the corner of back side of her house opening towards the railing/ fencing of her floor and that at that time both the accused Raju @ Suresh and Veeru were walking on the back side road of her house in drunken condition and were abusing her and her husband. She has further deposed that she came down stairs and reached the back side road of her house and that she objected and tried to persuade both the accused not to abuse them. She has further deposed that accused Raju @ Suresh caught hold of her right hand and pulled her and that accused Raju also threatened to kidnap her children and kill her husband. PW1 has further deposed that no one from neighborhood came to her rescue. PW1 has gone on to depose that accused Raju @ Suresh also abused her with the words Behen ki lodi, Bhosdi wali main darta nahi hu. She has further deposed that PCR van reached at the spot within 5 minutes after she called them and that her FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 5 of 16 husband also reached there. She went on to depose that thereafter she alongwith her husband went to the police station and that the police recorded her statement EX PW1/A, that she and her husband showed the police place of incident when they visited the spot and also that the police arrested the accused persons vide arrest memo Ex PW 1/B and Ex.PW 1/C and conducted their personal search vide memos EX PW 1/D and Ex. PW 1/E. She correctly identified both the accused persons in the court.
10. As the witness was resiling from her previous statement, Ld APP for the State was permitted to cross examine her. During her crossexamination by the Ld APP for the State, PW1 admitted that after coming down stairs she did not come outside her house and was present inside the main gate of her house at Ground Floor. She also admitted that she had objected to the misbehaving of the accused persons from inside her house and that on her objection accused Suresh entered her house and caught hold of her hand and pulled her outside her building. She denied that accused Veeru also pulled her and was duly confronted with portion B to C of complaint Ex PW 1/A wherein it was recorded that both the accused tried to pull her outside her house. She denied that accused Veeru also entered her house and pulled her hand. She admitted that both the accused i.e. Suresh and Veeru threatened her for life but denied that accused Veeru had used filthy language towards her. She further deposed that accused Veeru misbehaved with her by threatening her only.
11. During her crossexamination, the defence was unable to elicit any major FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 6 of 16 contradiction from the witness. She went on to deny the suggestion of the defence that there was a quarrel which took place between her and the mother of the accused Raju one day ago or that she had falsely implicated them to take revenge from the mother of Raju.
Police Witnesses
12. As per testimony of PW3 Ct Vijay, on 26.04.2013, PW4 ASI Malkhan Singh received DD entry 85B whereafter he accompanied PW4 to the spot and met complainant and her husband Manoj Kumar who told them about the incident upon which PW4 IO prepared the rukka and handed over the same to the PW3 for registration of FIR. PW3 has further deposed in his examination in chief that he had left the spot at about 1.25 am for the PS, handed over the rukka to the DO PW2 Hari Ram at about 1.50 am and after registration of FIR, he reached the spot about 33.15 am along with the original rukka and copy of FIR which he handed over to the IO. He has further deposed that thereafter he along with PW4 IO ASI Malkhan Singh, the complainant as well as the husband went to the house of accused persons and at the instance of the complainant IO arrested the accused persons from their house at H.NO. C150, prepared their arrest memo and personal search memos Ex.PW1/B to Ex.PW1/E. He has further deposed that he went with the IO to the hospital for medical examination of the accused and after examination returned to the Police Station where his statement was recorded by the IO.
13. During his cross examination PW3 has deposed that he had reached at the place of FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 7 of 16 incident along with the IO on foot within 1520 minutes i.e. around 9.45 pm. He further deposed that he did not remember whether the IO had made departure entry in the Police Station or not. He further deposed that he had handed over the rukka to the Duty Officer at around 1.50 am and the Duty Officer made the Daily Diary entry within 57 minutes and that FIR was typed in his presence in the computer within 30 minutes.
14. PW4 IO ASI Malkhan Singh has deposed on similar lines as PW3 and has also deposed regarding recording of statement of complainant Ex.PW1/A, preparation of rukka Ex.PW4/A, preparing site plan Ex.PW4/B and arresting the accused and conducting their personal search vide Ex.PW1/B to Ex.PW1/E. Arguments of the defence
15. During the course of the arguments counsel for accused laid emphasis on the cross examination of the complainant PW1 as per which the accused persons had been arrested by the police at 09.40 PM. He also drew the attention of the court to the arrest memo of the accused persons i.e. Ex. PW1/B and Ex. PW1/C as per which both accused were arrested on 27.04.2013 at 02.30 am. Counsel further due to the attention of the court to the testimony of PW3 Ct. Vijay as per which PW3 had received the Rukka and left for PS at about 01.25 am and handed over the Rukka to the duty officer at about 01.50 am and returned with the FIR at around 03.0003.15 am. He further drew the attention of the court to the testimony of PW4 during his cross examination wherein he stated that the accused person had been arrested in the night on 27.04.2013.
FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 8 of 16
16. It was argued by the counsel that in view of testimony of PW3, both the accused had been arrested even prior to receiving of the FIR by the IO at spot. He further argued that in view of the same, the present case was proved to be a false and fabricated one. However, the argument as raised by the accused is without merits for the reason that as per the FIR Ex. PW2/A, the information regarding the incident was received at the PS on 27.04.2013 at 1.55 am. Further as per deposition of PW 3 during his cross examination, the PW3 had handed over the Rukka to the duty officer at around 01.50 am, Duty officer made DD entry within 57 minutes and FIR was typed in the computer in his presence with in 30 minutes. Thus as per the testimony of PW3 by about 02.20 am, FIR must have already been typed which is prior to the time of arrest as mentioned in the arrest memo. It is also duly noted that the entire cross examination of PW4 i.e. IO is silent as to the time of arrest on the arrest memo. No question has been put to him regarding the alleged antedating/tampering in the arrest memo in respect of the time of the arrest of the accused persons or as to the testimony of PW3 reaching spot at about 03.0003.15 am.
17. Further it is duly noted that to a lay person the meaning of arrest has a different connotation than how the term is understood by a legally conversant person and hence the testimony of PW1 regarding accused person having been arrested at 09.40 pm read alongwith the time as mentioned in the arrest memo also does not carry much significance.
18. It is also duly noted that even the testimony of PW4 regarding arrest of accused FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 9 of 16 person in the night on 27.04.2013 is not of much consequence to the accused, keeping in view that the FIR has been registered in the early hours of 27.04.2013 and as the human memory is prone to forgetfulness due to lapse of time, it could have been remembered by the IO as to being the night time instead of the early hours due to darkness. Thus in view of the entire evidence on record, no reasonable doubt has been raised regarding the time of arrest vis a vis the registration of FIR.
19. Another argument has been raised by the defence regarding non recording of statement of any other public witness especially the sister in law Ritu as also of the Devrani of the complainant. As per cross examination of PW3, about 78 public persons were present when he had reached the place of incident along with IO whereas as per cross examination of PW4 IO/ASI Malkhan Singh, some public persons alongwith family members of the complainant were present at the spot. PW4/IO went on the depose during his cross examination that he did not record any statement of public witness during investigation nor did he request any public person to join the investigation as it was night duty. Clearly the explanation put forth by the IO for not recording statement of public witness is not satisfactory. However it can also not be lost sight of that merely because for reasons best known to him, the Investigating officer chose not to conduct investigation properly by joining public witnesses in the investigation, the same can not be allowed to be interpreted as a ground of acquittal of the accused as there mere non recording of the statement of public persons is not necessarily FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 10 of 16 fatal to the case of the prosecution even more so when the complainant has withstood the rigours of cross examination and no reasons have brought forth to disbelieve the version put forth by her.
20. Another argument has been put forth by the defence regarding the site plan.
Attention of the court was drawn towards cross examination of PW1 complainant wherein she has deposed that the police officer who recorded her statement did not visit her house in respect of the present matter. In the testimony of PW4 he has deposed that he had prepared site plan Ex. PW4/B and in his cross examination he has deposed that no public witness except complainant and her husband were present when he prepared the site plan but he did not remember as to whether or not he had obtained their signature on the site plan.
21. It is duly noted that PW1 in her examination in chief, has specifically deposed that she and her husband had told the police the place of incident when they visited the spot. The site plan has been duly proved by the IO and the absence of signature of the complainant on her husband on the same it is not material enough to affect the present case.
22. Another argument put forth by the accused was regarding the IO not being able to identify the accused during his cross examination is as much as PW4 deposed that he remembered names but not faces. The same relates to only a minor aspect especially keeping in view that the testimony of IO was recorded after the lapse of more than two years. Further, as the complainant has identified the accused correctly in the court, the non identification of the accused by IO during his cross FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 11 of 16 examination does not raise any reasonable doubt as to the identity of the accused persons.
23. The defence evidence led has also been considered. It is duly noted that the alleged incident took place on 26.04.2013. As per testimony DW1 Smt. Sumita, a quarrel had taken place in April 2013 at about 09.0009.30 PM between complainant and mother of the accused Raju and in the meanwhile both accused arrived there and counselled both ladies and tried to resolve the dispute as also that all persons went respective home and that after sometime police came at the spot and took away both the accused to the police station. DW2 has also deposed on similar lines. Thus, from the testimony of both the defence witnesses it can be inferred that the incident referred to by them took place on the same day as the alleged incident.
24. However, it is duly noted that no complaint regarding the alleged quarrel has been placed on record by the accused persons. There is also conspicuous by absence any representation or complaint made by anyone in respect of the present FIR being false or in respect of such previous quarrel. Further, it is also noted it was never put to the PW1 regarding the present case being a result of any quarrel on the same day as the alleged offence. Rather it was the defence of the accused that present case was counter blast to the quarrel which had taken place between the complainant and mother of accused Raju, one day prior to the alleged incident and not on the date of incident as has been deposed by the defence witnesses who have not supported the version of the accused. Hence the defence put forth does not FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 12 of 16 inspire confidence.
Further appreciation of evidence
25. It is duly noted that the complainant has been able to withstand the rigours of crossexamination. The defence has not been able to impeach the credibility of the witness. No reason has been brought on record to disbelieve the testimony of the complainant. In respect of the offence under Section 451/34 IPC, the testimony of PW1 is unequivocal as per which it was only the accused Raju @ Suresh who has entered her house and pulled her outside her building. No overt act has been attributed to the accused Veeru to suggest that he participated or facilitated in this act of the accused Raju @ Suresh in entering the house of the complainant and catching hold of her hand and pulling her outside her building as comtemplated under section 34 IPC. There is no evidence on record to prove any common intention of the accused Veeru with the accused Raju @ Suresh. Rather it is duly noted that the complainant has denied that Veeru had entered the house and pulled her hand. Hence the prosecution has failed to prove the common intention of the accused Veeru with the accused Raju@Suresh though the prosecution has been able to prove that the accused Raju @ Suresh did enter the building which the complainant was using as her residence thus which was being used for human dwelling with the intent to commit an offence of catching hold of her hand and pulling her outside her building.
26. From the unequivocal testimony of PW1 it is also proved that the accused Raju @ Suresh had caught hold of the hand of the complainant. The act constitutes FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 13 of 16 physical contact and involves unwelcome and explicit sexual overtures within the meaning of Section 354A (1)(i) IPC. It is duly noted that even herein no overt act has been attributed to the accused Veeru to suggest that he participated or facilitated in this act of the accused Raju @ Suresh in catching hold of the hand of complainant. There is no evidence on record to prove any common intention of the accused Veeru with the accused Raju @ Suresh. Rather PW1 has denied that Veeru had pulled her hand. Hence herein too the prosecution has failed to prove the common intention of the accused Veeru with the accused Raju@Suresh though the prosecution has been able to prove that the accused Raju @ Suresh had caught hold of the hand of the complainant constituting physical contact and involves unwelcome and explicit sexual overtures.
27. The testimony of PW1 is also unequivocal as to the accused Raju @ Suresh abusing her with the words 'Behen ki lodi, Bhosdi wali main darta nahi hu'. The words have thus been proved to have been uttered by the accused and clearly outraged the modesty of the complainant. Thus, the prosecution has been able to discharge its onus qua the offence of the Section 509 IPC. It is duly noted that even herein no overt act has been attributed to the accused Veeru to suggest that he participated or facilitated in this act of the accused Raju @ Suresh in uttering of the offensive words. There is no evidence on record to prove any common intention of the accused Veeru with the accused Raju @ Suresh. Rather PW1 has denied that Veeru had used filthy language towards her. Hence the prosecution has failed to prove the common intention of the accused Veeru with the accused FIR no. 174/13 State Vs. Raju @ Suresh & Anr. Page no. 14 of 16 Raju@Suresh though the prosecution has been able to prove that the accused Raju@Suresh had used abusive words against the complainant.
28. PW1 has also gone on to depose that accused Raju@Suresh had threatened to kidnap her children and kill her husband. It was only during her cross examination by the Ld APP for the State that she has gone on to depose that both the accused had threatened her with life. However, the testimony of PW1 in respect of threat to life does not inspire confidence in as much there is a doubt in the version of the prosecution as to whether the threat was given to the complainant regarding her life or for the life of her husband or the safety of her children. It appears that there is a contradiction in the testimony of PW1 regarding the nature of threats as also against whom they were given, giving rise to reasonable doubt. The prosecution has thus not been able to prove any criminal intimidation by any of the accused within the meaning of Section 503 IPC. In these circumstances, the accused are entitled to be given the benefit of the doubt qua the same.
Final Order
29. In view of the above discussion, with the prosecution failing to prove its case beyond reasonable doubt against Veeru, the accused Veeru is acquitted of the offences under Section 451/354A(1)(i)/506/509/34 IPC in the FIR no. 174/13 PS Sangam Vihar. Accused Veeru is directed to furnish fresh bail bonds in compliance of Section 437A CrPC which shall remain in force for a period of six months from today.
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30. With the prosecution proving its case beyond reasonable doubt and proving all the essential ingredients of the offences against the accused Raju @ Suresh, the accused Raju @ Suresh is convicted of the offences under 451/354A(1)(i)/509 IPC in the FIR no. 174/13 PS Sangam Vihar and acquitted of offence under Section 506 IPC.
31. To come up for the arguments on the point of sentence on 1.10.2015.
32. Copy of this judgment be given free of cost to the accused Raju@Suresh.
Announced in the open court (POOJA AGGARWAL)
on 30.09.2015 Metropolitan Magistrate02 (Mahila Court)
South District/ Saket/New Delhi
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