Delhi District Court
State vs . Hari Om Fir No. 135/12, Ps-Badarpur on 11 August, 2016
State Vs. Hari Om FIR No. 135/12, PS-Badarpur
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE - 01
MAHILA COURT, SAKET COURTS, NEW DELHI
UID No. 02406R0280142012
CIS No. 88767/2016
FIR NO. 135/12
PS- Badarpur
STATE
VS
HARI OM
JUDGMENT U/S 355 CrPC
a) Date of offence :02.04.2012
b) Date of Institution of case :03.09.2012
c) Date of judgment :11.08.2016
d) Offence complained of :354/451 IPC
c) Name of accused :Hari Om
S/o Sh. Krishan Kushwaha
R/o Mohalla Prabhu Ka Adda,
Civil Line, Etawa, UP.
Presently at: A-58, Subhash
Camp, Near NTPC House,
Badarpur, New Delhi
d) Plea of accused : Pleaded not guilty.
e) Final Order : Convicted U/s 354 IPC
& U/s 451 IPC
JUDGMENT
1. The FIR bearing no. 135/12 was lodged on15.5.2012 on the complaint of prosecutrix U/s 451/354 IPC at PS in respect of the alleged incident Pronounced in open court on 11.08.2016 Page no 1 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur which is stated to have taken place on 02.04.2012 at 01:00 AM.
2. Investigation was conducted by SI Harbir and challan was filed in the Court.
3. After hearing the accused and Ld. APP, formal Notice was framed against the accused Hari Om for offence Punishable U/s 451 IPC and U/s 354 IPC vide Order dated 20.05.2013.
4. The Notice was duly explained to the accused in vernacular to which he pleaded not guilty and claimed trial. Thus, the matter was listed for Prosecution's evidence.
5. Prosecution had cited 7 witnesses in support of their case. Out of which 6 witnesses were examined.
6. Prosecutrix/minor victim was examined as PW-1, her mother Rajwati was examined as PW-3, two Pronounced in open court on 11.08.2016 Page no 2 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur independent eye witnesses Alam and Pratap were examined as PW-2 and PW-3 respectively. PW-5 Retired SI Harbir Singh is the Investigating Officer of the present case. After examination of these witnesses, Prosecution Evidence was closed and the matter was listed for recording of Statement of accused.
7. Statements of the accused was recorded U/s 313 CrPC r/w Section 281 CrPC. Accused stated that has been falsely implicated and sought to produce independent witnesses in his defence. However, at a later stage, counsel for accused made a statement on behalf of accused that he does not want to produce any witness. Accordingly, DE was closed and matter was listed for final arguments.
8. Final arguments have been heard on behalf of all.
Record has been carefully perused.
Pronounced in open court on 11.08.2016 Page no 3 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur Brief facts of the prosecution's case :
9. FIR was registered on 15.05.2012 at the statement of the victim wherein it was alleged on 01.04.2012, when her mother was away at Jammu and she was sleeping at the Jhuggi with her two minor sisters and one minor brother and the door was locked from outside and her father had gone to sleep at the adjacent shop. The accused Hari Om opened the lock, came inside. He held her with one hand and closed her mouth with other hand and took her to his own Jhuggi and tried to molest her and then the complainant woke up and raised hue and cry for help. Certain neighbors heard her screams and came outside the Jhuggi where Hari Om had taken her and started pounding at the door with screams that it be opened. Hari Om got scared, he opened the door and ran away. One Pratap and Alam saw the accused Hari Om running away.
10. The main defence of the accused is that Victim did not try to make any complaint on the date of the Pronounced in open court on 11.08.2016 Page no 4 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur incident and there was a delay of 45 days in making of the complaint which has not been explained by the prosecution. He further argued that there was previous enmity between the mother of the victim and sister of the accused due to which the accused was falsely implicated. He further argued that father of the victim has also not been made a witness in the present case which give rise to adverse presumption. He further argues that victim has given inconsistent statements and she did not made any hue and cry when she was being lifted by the accused and taken to his Jhuggi as alleged.
11. Ld. APP had argued that all the witnesses have corroborated each other and that the previous enmity is not related to the present incident. He argued that complainant was dragged by the accused and thus couldn't shout when she was being dragged. Pronounced in open court on 11.08.2016 Page no 5 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur Discussion on merits:
12. The ingredients constituting offence punishable u/s 452 IPC which prosecution ought to prove are:
a) Commission of house trespass: House Trespass is defined in Section 442 IPC which is entry by any person into a property used for human dwelling in possession of another with intent to commit an offence (as relevant for purpose here).
b) Having made preparation for causing hurt to that person of for assaulting any person (as relevant for purpose here).
13. In order to bring home charge under Section 354 IPC, the prosecution has to prove-
(i) that the victim concerned
belonged to fair sex whatever her age
may be
(ii) that the accused subjected her to
Pronounced in open court on 11.08.2016 Page no 6 of 16
State Vs. Hari Om FIR No. 135/12, PS-Badarpur
assault as defined in Section 354 of
Indian Penal Code or to Criminal force as defined in Section 350 IPC , and
(iii) the accused while committing assault or using criminal force intended to outrage the modesty of the woman or knowing it to likely that thereby her modesty would be outraged.
14. A person is said to use force when he caused motion or change or motion or cessation of motion to another person or the above in substance which brings it in to contact with any part of the other person's body or with anything that the other is wearing or carrying or with anything so situated that such contact affects other's sense of feeling. This should be done by his own bodily power or by use of some substance or by inducing any animal to change this motion. The use force will become criminal when it is done against the consent of any person with the intention of committing an offence or to cause injury, fear or intention of committing an offence or to cause injury, fear or annoyance to any person.
Pronounced in open court on 11.08.2016 Page no 7 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur
15. Any act which adversely affects the modesty of a woman or is offensive to the sense of modesty, decency or repugnant to womanly virtues or propriety of behaviour would be an outrage or insult to modesty of a woman.
16. In the Oxford English Dictionary (1993 Edition), the meaning of word "modesty is given as -
"Womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in men or women) or sense or sense of shame proceeding from instinctive aversion to impure or coarse suggestion". Thus, the word modesty within the meaning of Section 354 IPC does not refer to a particular woman but to the accepted notions of womanly behaviour and conduct as an attribute associated with female human beings as a class, being a virtue which attaches to female on account of her sex.
Pronounced in open court on 11.08.2016 Page no 8 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur
17. As far as the alleged delay of 45 days is concerned, the arguments of the Counsel for accused as well as the justification for the alleged delay by Ld. APP are groundless. Perusal of the file shows that a written complaint was made under the signatures of the mother of the victim on 05.04.2012 at PS Badarpur which was received by SI Haribir Singh vide DD Entry no. 31A dated 06.04.2012. Thus, it appears that Ld. APP had not read the file thoroughly before addressing final arguments.
18. In the written complaint was made on 04.05.2012 under the signatures of the mother of the victim. She had stated that her husband remains ill and is not capable of doing anything. That on 01.04.2012 she was at Vaishno Devi. Her husband had locked the door of the Jhuggi from outside after making their two minor daughters and one son sleep inside and had gone to sleep in adjacent shop. At about 01:00 AM - 01:30 AM, her husband and neighbors heard the screams of her minor daughters and came running and saw that the Pronounced in open court on 11.08.2016 Page no 9 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur screams of the victim were coming from the house of her neighbor in which Hari Om resides. Her husband and neighbors knocked at his door due to which Hari Om opened the door and ran away. The victim was very scared and panicked. When inquired, the victim told them that Hari Om had opened the lock of the Jhuggi and had lifted her from her Jhuggi while she was asleep and had brought her in his Jhuggi where she woke up. She saw that Hari Om was forcefully trying to molest her. She shouted for help and raised hue and cry, hearing which the neighbors gathered started knocking the door and asking for the door to be opened. Hari Om opened the door and ran away. The said complaint is Ex.PW-4/A and was received vide DD No. 31A at PS Badarpur on 06.04.2012 which is Mark A.
19. The mother of the victim was examined as PW-4.
She has deposed before the Court, she reiterated the contents of her written complaint. She deposed that she returned back to her house on 04.04.2012 and gave the above mentioned complaint to PS Badarpur on the next Pronounced in open court on 11.08.2016 Page no 10 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur date but no action was taken by the Police. Thereafter, she visited Higher Officials and finally the FIR was registered on 15.05.2012. Thus, there was no delay in reporting the matter to the Police. Delay of four days stands duly explained by the complaint dated 05.04.2012 itself. The delay of few days was due to the absence of the mother of the victim and the illness and inability of the father of the victim. Further, non- examination of father of the victim is also duly explained by the complaint dated 05.04.2012 itself wherein it is stated that he remains ill and is not capable of doing anything. The counsel for accused did not cross examine the witness on these aspect. It has been duly proved by the testimony of PW-5 that she was informed about the incident telephonically on 02.04.2012. She gave a written complaint immediately after returning from Vaishno Devi but due to inaction of Police, no further investigation was done till they followed up the matter with Higher Authorities.
20. The minor victim was examined as PW-1. She Pronounced in open court on 11.08.2016 Page no 11 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur has categorically deposed about the incident in question. She was duly cross examined by opposite counsel. She has remained consistent in her statement.
21. While the names of Pratap and Alam are mentioned in the FIR and they have been examined as witnesses in the present case, Yashpal was neither named nor examined in the present case. As Pratap and Alam I.e two of the independent witnesses have been examined, the failure of complainant to mention the name of the Yashpal in the complaint or his consequent non-examination by the prosecution is not fatal to the prosecution's case. It is a settled proposition of law that quality of evidence is more important than the number of witnesses. In the present case, Pratap has deposed consistently and has supported the case of the Prosecution. Pratap has duly corroborated the testimony of the victim when he deposed that on 01.04.2012 at about 01:00 O' Clock at midnight, he heard the scream of the victim, he deposed that he alongwith one Pratap had gone to the Jhuggi of the accused after hearing the Pronounced in open court on 11.08.2016 Page no 12 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur screams of the girl and not at the door of the Jhuggi. Some neighbors also gathered at the spot. When they knocked, Hari Om opened the door and ran away. This witness was duly cross examined by the counsel for accused. In his cross examination, he admitted that he saw Hari Om pulling the victim to his Jhuggi and he called Pratap. He deposed that mother of victim returned home after 2-4 days of the incident. Thus, PW- 2 has duly proved that the place of the incident was the Jhuggi where accused Hari Om resided. In his cross examination, he has proved that accused Hari Om was pulling the minor victim towards his Jhuggi. He further proved that he knocked the door of the Jhuggi after hearing screams of the victim and thereafter the door was opened by accused Hari Om who then ran away from the spot. PW-1/victim has proved that she was sleeping in the Jhuggi with her siblings and her father was sleeping in the adjacent shop. She has proved that someone broke the lock of the door and entered in her house and caught hold of her hand. She has further proved that the accused had taken her to his Jhuggi Pronounced in open court on 11.08.2016 Page no 13 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur while she was still asleep and had molested her. She woke up suddenly and screamed for help. Her cries were heard, Pratap and Alam reached the spot and knocked the door. Hari Om opened the door and ran away from the spot. PW-3 Pratap had corroborated Alam by deposing that he saw accused Hari Om coming out of the Jhuggi.
22. As far as the medical examination is concerned, the Prosecutrix did not suffer any injury. No injury has been alleged by the Prosecution. Thus, there was no requirement to get the medical examination of the Prosecutrix conducted and her non-examination is not fatal to the case.
23. No evidence has been led by accused to prove the defence of accused that he was falsely implicated due to previous enmity between his sister and the mother of the victim. The accused has not even assigned any reason for the alleged previous enmity. Thus, the defence taken by the accused is without any Pronounced in open court on 11.08.2016 Page no 14 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur substance.
24. On the other hand, Prosecutrix had been consistent in her deposition and has withstood the test of cross examination. Prosecution has been able to prove through the testimony of the victim she was sleeping alone with her siblings while her father was sleeping in adjacent shop and her room was locked from outside. It is has been further affirmed that accused Hari Om entered her room, caught hold her by hand and brought her to his room. She has further clarified in her cross examination that the incident occurred in the room of the accused. The counsel for accused did not put any contrary suggestion to the victim on this aspect. She had further admitted in cross examination that Pratap, Alam reached the spot immediately after the incident. PW Pratap Alam has corroborated the testimony of the victim and has duly proved that the person who was running from the spot was accused Hari Om. He has also proved the presence of the PW-2 Mohd. Alam alongwith him at the Pronounced in open court on 11.08.2016 Page no 15 of 16 State Vs. Hari Om FIR No. 135/12, PS-Badarpur spot at the relevant date and time. Defence put forth by the accused does not repose any confidence. The presence of the accused at the spot is not disputed. The victim and her mother and PW Pratap have deposed the contents of the initial complaint in substratum. their testimony has remained unrebutted. Accused has failed to explain the motive of his alleged false implication. On the basis of evidence on record, I am of the considered opinion that the prosecution has established its case against the accused beyond the pales of reasonable doubt. Accused Hari om is thus convicted for the offence U/s 354 as well as for offence u/s 451 IPC.
Order on sentence to be pronounced separately after hearing the convict.
Copy of the judgment be provided to the accused free of cost against acknowledgement Announced in the open (Shivani Chauhan) court on 11.08.2016 Metropolitan Magistrate-01 Mahila Court/SED/Saket New Delhi/ 11.08.2016 Pronounced in open court on 11.08.2016 Page no 16 of 16