Delhi District Court
State vs . Raju Shah on 8 November, 2019
In The Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate02, (Mahila Court), South East, New Delhi
State Vs. Raju Shah
FIR No: 485/2014
PS: Govindpuri
U/s: 354 IPC
JUDGMENT
Date of institution : 27.06.2014
CRC no. : 93248/2016
Name of the complainant : As per chargesheet.
Name & address of the accused : Raju Shah
S/o Late Badrilal Shah,
R/o H.No.C264, Slum Quarters,
Kalkaji, New Delhi.
Offence Complained of : U/s 354 IPC
Offence Charged of : U/s 354 IPC
Plea of accused persons : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 08.11.2019
Date of announcing of order : 08.11.2019
BRIEF FACTS:
1. Brief facts of the case are that the complainant has stated in her complaint that her husband was not at home and had gone to the village. She State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 1/16 was alone at home. At that time, accused namely Raju who was having a tea shop came to her house on 30.04.2014 (Wednesday) in the night at around 11.00pm. At that time, accused asked the complainant to bring a glass of water and when the complainant opened the gate to give him the glass of water, he suddenly caught hold of the complainant by her hand and started forcing himself on the complainant. He pushed the complainant on the bed and tried to rape her and misbehaved with her. Thereafter, complainant somehow managed to over powered the accused and hit the accused by her leg and came out of her house and also threw the accused out of her house on which accused ran away from the spot.
2. Pursuant to this complaint (undated, of 06.05.2014) of the incident dated 30.04.2014 against accused, FIR was registered on 06.05.2014 and the matter was investigated. Chargesheet was filed on 27.06.2014. Court took cognizance of offence and summoned the accused Raju Shah. Charge was framed against accused for the offence U/s 354 IPC. Accused pleaded not guilty and claimed trial and accordingly, matter was listed for prosecution evidence. Thereafter, prosecution evidence was led.
3. In order to prove its case, prosecution examined four witnesses.
PW1 Complainant/victim deposed that she was residing at her address for last 20 years. She did not remember the date of incident. At the time of incident her husband was not present in the house as he had gone State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 2/16 to his village at Kolkata for some urgent work. The accused came to her house at 11.00 PM and asked about her husband that "where was Dada (my husband)". Accused Raju Shah used to call her husband as Dada. Thereafter, accused asked her for water and when she asked him to take the water from his own shop as he was running a tea stall at that time. Accused Raju again insisted for water and told her that "kya mere upar Viswash nahi hai". Thereafter, When she brought water from kitchen and gave him the water, the accused held her and dragged/laid down her on bed and came over her and thereafter she kicked him upon which he fell down from the bed. Thereafter, she gave beatings to him by broom. Thereafter the accused fled away from the spot and threatened her with dire consequences. On that day, she did not visit the police station as she was alone in her house. Next day she went to the police station and told the incident to police and police persons brought the accused in the police station. Thereafter, the witness was crossexamined by Ld. APP for the State.
During crossexamination on behalf of Ld. APP, PW1 deposed that it was correct that she cannot read Hindi. She could speak Hindi. She did not remember the exact date of incident. It was correct that on the next date of incident when she visited the police station, the police persons sent her back and told that she had to bring a written complaint in Hindi. She did not remember whether she gave written complaint to police on 06.05.2014 but she had given written complaint which was Ex.PW1/A. Her statement u/s 164 Cr.P.C. was Ex.PW1/B. State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 3/16 During crossexamination PW1 deposed that she was currently residing with her sister who resides nearby. She remembered the house address where she was staying previously i.e. the house near Tara Apartment. In her previous house near Tara Apartment, there were two rooms, one bed room, one kitchen and one toilet / bathroom. At the said house, she and her husband used to reside. Her children stayed in Kolkata. In her neighbourhood, other people were residing. It was correct that she regularly talked to them. It was correct that her relatives also reside in Delhi. It was correct that she had good relations with her relatives. On the date of incident, she was alone in her house. She used to talk to her relatives and her children on phone. She had a mobile phone. At the time of incident she had a phone. On the date of incident, when the accused asked her for water, she did not open the door. Thereafter, the accused again asked her for water and she opened the door. After opening the door she made him sit down and thereafter, gave him water. She served water in a steel glass. It was correct that she did not scream or shout when the accused tried to force himself upon her, because of shame. She informed her husband after 34 days of the incident. She informed her relatives on the next date of incident. She did not call at 100 number after the incident. The police chowki was quite far from her house. She had beaten the accused with the broom and drove him outside the house, after which, she closed the door. She informed the police of the incident after 45 days. She did not lodge the complaint immediately because she was discussing the same with her neighbour and was confused. At the State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 4/16 time of incident, the light outside was not working, there was no light. She went to the police with a written complaint. It was correct that she could not write in Hindi and somebody else wrote the complaint. One of her neighbours wrote the complaint. She did not remember the name of the neighbour who wrote the complaint. The police officials took the complaint when she brought. It was correct that she had accompanied the police at a time of arrest of the accused. She did not remember when or at what time or when the accused was arrested by the police. She accompanied the police persons. Police immediately arrested him and did not inform anyone about the same. It was correct that her statement was recorded before the Court. The statement was recorded on the next day. Thereafter, witness was confronted with the supplementary statement under Section 161 Cr.P.C. at point A to A1, where it was so recorded, the same was marked as Ex.PW1/D. She was not taken to the hospital neither was medical conducted. She did not remember whether she stated to the police or Magistrate that "accused asked about my husband that where was Dada (my husband)". Thereafter, the witness was confronted with the complaint and her statement under Section 164 Cr.P.C., where it was not so recorded. She did not remember whether she stated to the police or magistrate "I asked him to take the water from his own shop as he was running a tea stall at that time. Accused Raju again insisted for water and told me kya mere upar biswas nahi hai". Thereafter, witness was confronted with her complaint Ex.PW1/A at point A to A1, where it was not so recorded. She denied that she had not State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 5/16 stated in her complaint that "thereafter I beaten by broom. Thereafter, accused fled away from the spot and threaten me for dire consequences". Thereafter, witness was confronted with her complaint Ex.PW1/A, where it was not so recorded. Witness denied that "I had stated in my complaint that after freeing myself from the accused, I ran outside my house and the accused ran away". Thereafter, witness was confronted with her complaint Ex.PW1/A at point B to B1, where it was so recorded.
PW2 W/ASI Teresa Tirkey deposed that on 06.05.2014 she was posted at PS Govindpuri and was on reserved duty. IO/ASI Hukumvir took her to RZ2537/27 Tughlakabad Extension alongwith Ct. Jaivir, where the complainant met them. Inquires were made from her by the IO. Thereafter, they went to C.R. Park Market, the house of Raju Shah, accused. They were there with the complainant. Accused met them. IO then called Ct. Amit and after making interrogations from the accused, sent him for medical examination. He alongwith the IO stayed at C.R. Park and IO prepared all the documents. Thereafter, they brought the complainant to Saket Court for recording her statement. Witness could not identify the accused due to lapse of time.
Thereafter, the witness was crossexamined by Ld. APP for the State on point of identity of the accused and upon being crossexamine accused has been pointed out to the witness but she could not identify the accused and said "Mere dhyan se utar gaya".
State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 6/16 During crossexamination PW2 deposed that she could not tell the exact address of C.R. Park where they had gone. She did not remember the exact time.
PW3 Ct. Jaiveer deposed that on 06.05.2014, he was posted at PS Govindpuri as Constable. On that day, at about 8:30 AM, he along with IO SI Hukamvir Attri and W/ASI Tersa Tirkey had gone to the spot that is H.No.2537, Gali No.27, First floor, Tughlakabad Extension, New Delhi, where they met the complainant. IO had recorded the statement of the complainant and on her instance, site plan was prepared by IO. The complainant further disclosed that the accused owned a shop at C.R. Park, New Delhi. Thereafter, he along with IO SI Hukamvir Attri and W/ASI Tersa Tirkey went to the C. R. Park along with complainant. They reached at tea stall Market no.1, C. R. Park, where the complainant pointed out towards the accused and identify him. Thereafter, SI Hukamvir interrogated the accused and arrest him vide arrest memo Ex.PW3/A. Thereafter, IO informed the PS Govindpuri arrest of the accused and Ct. Amit was sent to the spot by the SHO PS Govindpuri. Thereafter, he along with Ct. Amit took the accused to AIIMS, Hospital where he was medically examined. Thereafter, accused was produced before the Court of Ld. MM and accused was sent for judicial custody. His statement was recorded by the IO.
During crossexamination PW3 deposed that his duty hours were for full day. He stayed at the police station throughout the day. He could be called for duty at any time. He was informed about the incident by the IO State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 7/16 Hukamvir Attri via phone. He was on the third floor. The IO called me from the Duty Officer Room. He was told that some misbehavior has occurred with the complainant and they had to reach. The place of incident/spot was about two kilometers from the police station. They went by car of the IO which was of Maruti SX4. However, he did not remember the registration number of the said vehicle. The house of the complainant was on the first floor where she met them. He did not remember whether there was anybody else in the house. He did not remember whether any inquires were made at the spot by the IO. After recording statement of the complainant and preparing the site plan, they went to market no.1. He did not remember whether any information of arrest of the accused was given. He did not remember whether anybody else was working at the shop. He was witness to the personal search of the accused conducted by the IO. He did not remember the clothes that the accused was wearing at that time. Thereafter, constable arrived at the spot and both of them took the accused to the AIIMS Hospital in an Auto. There was no mandate to take him by the police vehicle. They left for the hospital at 12:31 PM. It was correct that in the medical certificate issued on 06.05.2014. His name does not find mention as having accompanied the accused.
PW4 Inspector Hukamvir Attri (IO) deposed that on 06.05.2014, he was posted at PS Govindpuri as SI. On that day, at about 6:00 AM, he received the original rukka and copy of FIR from DO. Thereafter, he met SI Parvesh Kasana and recorded his statement. Thereafter, he along with Ct.
State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 8/16 Jaiveer and W/ASI Tersa Tirkey went to the house of the complainant i.e. H. No.RZ 2537, Tughlakabad Extension, New Delhi. There, he met the complainant and prepared the site plan at instance of complainant which is Ex.PW4/A. Thereafter, he inquired from the complainant about the accused and she disclosed that the accused was working in C. R. Park. Thereafter, he along with Ct. Jaiveer, W/ASI Tersa Tirkey and complainant had gone to C. R. Park, Market No.1. When they reached the C. R. Park Market No.1, the complainant pointed out towards the accused and told them that he was the same person who was misbehaved with her. The accused was sitting in his tea stall. Thereafter, he apprehended and interrogated the accused and thereafter, he arrested him vide arrest memo already Ex.PW3/A and also conducted personal search memo vide personal memo Ex.PW4/B. He recorded the disclosure statement of the accused which is Ex.PW4/C. Thereafter, he called the constable Amit from PS Govindpuri as he had to go to Court for recording of statement of complainant under Section 164 Cr.P.C. Thereafter, he sent the constable Amit, Ct. Jaiveer with the accused to AIIMS Hospital for medical examination of the accused. Thereafter, he along with W/ASI Tersa Tirkey and complainant came to the Saket Court and moved application under Section 164 Cr.P.C for recording of statement of complainant which is Ex.PW4/D and thereafter, statement of complainant under Section 164 Cr.P.C. got recorded by Ld. MM and later on he obtained the copy of same by moving an application and also obtained the statement of complainant. Thereafter, he recorded the statement of witnesses. After State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 9/16 conclusion of investigation, he filed the charge sheet in the Court. The accused Raju Shah is correctly identified by the witness.
During crossexamination PW4 deposed that he was handed over the investigation on 06.05.2014 and recorded the statement of the complainant on 06.05.2014 and also recorded the statement of all other witnesses. Further the statement of complainant was recorded under Section 164 Cr.P.C. was also recorded on the same day. The site plan, arrest memo and other documents were also prepared on the same day. He did not remember as to who had written the complaint Ex. PW1/A. He did not know if the plaintiff could read or write Hindi or whether she was the writer of complaint Ex. PW1/A. The site plan was prepared at the instance of the complainant. It was correct that from the alleged place of incident there was police booth located two lanes away. He could not say whether the complainant had any mobile phone in her possession as he had not inquired about the aforesaid fact. He had inquired about the matter from the complainant and he was informed by the complainant that there was no other witness who had seen the incident and therefore he did not inquire about the matter from the neighbourers. He did not enquire about the lighting in the street as usually the street lights were in working condition. He did not remember if he made enquiry from the complainant if she was asked to return back with the written complaint. No medical examination of the complainant was got conducted. Ct. Amit has not cited as a witness. It was correct that the name of Ct. Jaivir is not mentioned in the MLC of the State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 10/16 accused. The son in law of the accused, namely, Amit was informed about his arrest. Witness denied all suggestions put to him.
4. Prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused did not examine any witness in his defence.
6. Final arguments were advanced.
7. Ld. APP for the State has argued that in the present matter the guilt of the accused is proved beyond reasonable doubt as all the witnesses have deposed against the accused and there is complete corroboration and therefore, accused is liable to be convicted.
8. On the other hand, accused has argued that in the present matter, accused has been falsely implicated and there is no incriminating evidence against the accused. He has argued that in the present matter, the accused has been prosecuted on the allegations of the complainant who was known to him and her husband had taken some loan from the accused and since the husband of the complainant refused to pay the same and was confronted, accused was falsely implicated by the complainant. It is argued that the State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 11/16 accused has been falsely implicated and the complainant has levelled false allegations against the accused. There was nothing to lend support to the story of complainant by any independent witness and the allegations made by the complainant are only figment of imagination. It is further argued that the accused is innocent and he is liable to be acquitted.
Court Observations:
9. Accused has been charged of having committed offence of assaulting the complainant with intention to outrage her modesty and the same is alleged by the complainant in her complaint Ex.PW1/A. To determine if an offence of stalking is made out on these allegations, it is necessary to peruse Section 354 IPC, which reads as under: "354Assault or criminal force to woman with intent to outrage her modesty 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, or with fine, or with both.
Hence, to prove an offence U/s 354 IPC, following ingredients are required : State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 12/16
(i) A woman was assaulted or subjected to use of assault criminal force on her and
(ii) the intention of the accused was outraged her modesty
(iii) the accused knew that her modesty will be outraged thereby.
10. Accused has been charged of having committed offence of sexual assault upon the complainant on her complaint Ex.PW1/A wherein it has been alleged that accused had misbehaved with her by touching her inappropriately.
11. In the present matter, prosecution has examined as many as four witnesses and complainant is the sole eye witness and victim of the alleged offence. Complainant is the start witness of the prosecution. As per the complainant, the incident took place at around 11 pm in the night on 30.04.2014 wherein the accused allegedly entered her house on the pretext of taking a glass of water and thereafter, forcing himself on the complainant. If we carefully peruse the testimony of the complainant, complainant has failed to narrate the date of incident and stated that she did not remember the same, though her testimony was recorded within one year of the alleged incident. Further, the complainant has not reiterated her allegations of her complaint Ex.PW1/A in her testimony recorded before the court or in her statement recorded u/s 164 CrPC. Further, the complainant has improved her statement u/s 164 CrPC as compared to her complaint Ex.PW1/A. State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 13/16
12. Complainant has levelled allegations in her complaint Ex.PW 1/A and admitted that accused was known to her, however the aforesaid facts was not narrated by the complainant in her complaint or in a testimony and was revealed by her only during her cross examination by the accused. It is admitted that the place of incident was a thickly populated area but at the time of incident, however, no public person was examined by the prosecution. Further, the complainant has failed to disclose the reason as to why suddenly, accused came to her house at 11.00 pm only to drink water and started misbehaving with her. Further, the complainant has been confronted on behalf of accused on several statements made by her in her complaint and in her testimony before the court. Further, PW2 WASI Teresa Tirkey did not even identify the accused against whom she has participated in the investigation.
13. Therefore, in the present matter, despite the fact that the complainant admitted that the incident had taken place inside her house, however, strange enough she did not raise any alarm or informed regarding the incident to even her neighbours or made a call at 100 number. Further, delay in lodging of FIR of six to seven days have not been explained by the complainant and the same seems to be an after thought. Complainant was also confronted by her statement recorded u/s 161 Cr. P. C. and the testimony of the complainant can not be relied upon. Complainant admitted that she never went for her medical examination to the hospital on the same State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 14/16 day or subsequently. Complainant has failed to narrate the exact manner of commission of offence. Considering the fact that most of the time, no public person is willing to participate in any such proceedings and even ignoring the fact that no public person was examined by the prosecution, the conduct of the complainant still remains doubtful as the complainant has admitted during her crossexamination that when the incident occurred, she did not make any hue or cry or raised alarm or sought help from the public persons.
14. In view of the aforesaid discussion and after considering the testimony of all the witnesses examined by the prosecution, I am of the considered view that there are several contradictions in the testimony of the formal witnesses and the complainant. I find merit in the arguments advanced on behalf of accused and the fact that the accused was apprehended when he reached the PS soon after the incident. The Prosecution has failed to prove the guilt of accused beyond reasonable doubt and has failed to prove that accused had conducted himself in the aforesaid manner.
15. Further, apart from the complainant, there is no other witness examined by the prosecution to substantiate the allegations of the complainant. The complainant has not explained the exact manner of commission of offence which could infer that the accused had acted in a manner with the intention to insulting the modesty of the complainant. The complainant has nowhere stated that alleged language or words used against State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 15/16 her. Further, there are several contradictions in the testimony of the formal witnesses. Therefore, in my considered view, offence u/s 354 IPC does not stand proved against the accused and therefore, accused is liable to be acquitted for the aforesaid offence.
Announced in Open Court (Sheetal Chaudhary Pradhan)
On 08.11.2019 Metropolitan Magistrate02,
(Mahila Court)/SED/Saket,
New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2019.11.08
12:00:16
+0530
State Vs. Raju Shah; FIR No.485/2014;PS Govindpuri 16/16