Delhi District Court
State vs Sanjeev Sharma Etc. on 29 April, 2011
IN THE COURT OF MS SHIVALI SHARMA :
METROPOLITAN MAGISTRATE/MAHILA COURT (WEST)
DELHI
FIR NO: 118/98
P. S. JANAK PURI
U/s 341/354/34 IPC
ID No. 02401R0423632002
29.04.11
STATE VS SANJEEV SHARMA ETC.
Date of institution : 28.04.1998
Date of Commission of offence : 05.02.99
Name of the Complainant : Smt Kailash Devi
w/o late Sh Prem Singh
Name, parentage & address 1. : Sanjeev Sharma
of the accused s/o Narender Kumar
r/o RZ 23B, J Block,
West Sagarpur, Delhi
2. : Rakesh
s/o Satyadev
r/o 58/877, DESU
Colony, Janak Puri,
Delhi
Offence Complaint of : U/s 341/354/34 IPC
Plea of the accused : Pleaded not guilty
Final Order : Convicted
Date for reserve of order : 20.04.2011
FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 1 of 14
Date of announcing of order : 29.04.2011
BRIEF FACTS AND PRE TRIAL PROCEDURE
1. The present FIR has been registered on the basis of a hand written complaint dated 6.2.98 which has been proved as Ex.PW4/A made by complainant Smt Kailash Devi. The allegations as contained in the complaint are that on 5.2.98 at around 10 pm, the complainant Kailash Devi along with her daughter Archana Kumari (PW2) was going to Mata Chanan Devi Hospital to see her grandson. On way, accused Rakesh and Sanjeev whom complainant knew stopped her and her daughter and both accused were drunk and they tried to outrage the modesty of the complainant. They also put their hand on the breast of the complainant and started abusing and slapping the complainant.
2. On the basis of said complaint, present FIR has been registered and after completion of investigation, challan was filed against the accused u/s 354/323 IPC.
CHARGE:
3. After the appearance of accused persons before the Court and after completion of necessary formalities, charge u/s 341/354/34 IPC was framed against the accused persons to which they FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 2 of 14 pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. Prosecution has examined four witnesses in all to bring home the guilt against the accused. Their testimony is touched upon in brief in order to have a better understanding of the case.
5. PW1 SI Sanjeev Lakhanpal is the duty officer who has proved the registration of present FIR as Ex.PW1/A.
6. PW2 is Ms Archana Kumari who had stated that on 5.2.98 at around 10 pm, she along with her mother Kailash Devi (since expired) went to Mata Chanan Devi Hospital. When they had reached in front of gate DESU colony, both accused persons had restrained them and molested her mother. They also abused them and were under the influence of liquor. When she tried to question their conduct, they also started abusing her. Thereafter, they had left the spot. Accused Sanjeev Sharma had also shown a knife to them. Then, she along with her mother went to PS and lodged a complaint against both the accused persons. Accused Rakesh had also slapped her mother. The witness was not subjected to cross examination despite opportunities being given. She identified both the accused in the Court.
7. PW3 is Ct. Pramod Kumar who stated on oath that on 5.2.98 he was posted at PS Janak Puri and on 6.2.98, he along with SI Indraj FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 3 of 14 Singh were on patrolling duty in the area of PS Janak Puri where Kailash Devi had met them and given her statement to the IO regarding outraging of her modesty by two boys. Rukka was prepared by the IO on the basis of statement and he was given the same for registration of FIR. After registration of FIR, he came back with the copy of FIR and handed over the same to SI Indraj. Witness identified both the accused and stated that after completion of investigation and arrest of accused persons, they had returned back to PS.
8. In his cross examination, witness admitted that he was not present at the time of incident. However, accused persons were arrested in his presence from near their houses. Nothing material has come in his cross examination to benefit the accused persons.
9. PW4 is the IO/SI Indraj Singh who stated that on 6.2.98, he was posted at PS Janak Puri and at around 12.30 pm, he along with PW3 was on patrolling duty in the area of DESU colony, Janak Puri. During patrolling, complainant Kailash Devi met them and got her statement recorded which has been proved as Ex.PW4/A. On the basis of her statement, rukka was prepared by him which is Ex.PW4/B and handed over to PW3 for registration of FIR. Site plan was prepared by him at the instance of Kailash Devi and same has been proved as Ex.PW4/C. Statement of daughter of the complainant was recorded and the accused persons were arrested FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 4 of 14 on the pointing out of Kailash Devi and their personal search was conducted vide memos Ex.PW4/D and Ex.PW4/E. The accused persons were released on bail at the spot. After completion of investigation, they went back to PS. Charge sheet was prepared and challan was filed.
10. In his cross examination, he also admitted that he was not present at the time of incident and had reached there around 12.30 pm. He also stated in his cross examination that he had not recorded the statement of daughter of the complainant but had recorded the statement of complainant Kailash Devi only.
Statement of accused and defence evidence.
11. Statement of accused persons U/s 313 Cr.P.C was recorded on 28.2.11 wherein they have denied all the incriminating evidence against them and stated that they had not done any wrong deed as alleged by the complainant and are not aware why present false case has been filed against them. They had also stated that on the date of incident they were in Himachal Pradesh as they work there and they were called by their relatives who had told them that some police officials had come enquiring about them.
Appreciation of Evidence and Law
12. I have heard the final arguments and record has been meticulously perused.
13. Complainant in the present case i.e Kailash Devi has not been FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 5 of 14 examined as she had already expired before she could be called for her deposition before the Court.
14.The star witness of the prosecution case is Archana Kumari who has been examined as PW2. This witness had specifically stated that the accused persons had restrained them and had molested her mother in her presence. They had also used abusive language and had also slapped her mother.
15. This witness was not subjected to cross examination despite giving opportunities to the accused persons. Later on, application u/s 311 Cr.P.C was moved on behalf of accused persons for cross examining this witness which was allowed. However, witness could not be examined as she was not traceable. Perusal of the order sheet dated 26.8.03 whereby the application u/s 311 Cr.P.C of the accused persons for recalling PW1 for her cross examination had been allowed clearly shows that application has been allowed subject to the condition that in case of non availability of the witness, her examination which has already been conducted shall be read in evidence.
16. Ld. Defence Counsel has argued that deposition of PW2 is inadmissible in evidence and has to be expunged because of the reason that the witness was not tendered for cross examination. It is vehemently argued that unless the examination of a witness is complete, that is to say, unless he has been crossexamined, his FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 6 of 14 deposition cannot be read to the detriment of the accused.
17. In support of his argument, reliance has been placed on the following citations by Ld. Defence Counsel.
(i) Gopal Saran Vs. Satya Narayan cited as AIR (a) 1989 SC 1141
(ii) Phani Bhushan Ghosh Vs. Sibakali Basu cited as (39) 1952 Cal. 218
(iii) S.C Mitter Vs. State cited as AIR (37) 1950 Cal. 435
(iv) Sanatan Daw Vs. Dasarathi Tha cited as AIR 1959 Cal. 677
(v) Randhir Singh Vs. State cited as 1982 CC. Cases 46 (HC)
(vi) Hari Prasad Vs. State cited as AIR 1953 All. 660.
18. It is submitted by Ld. Defence Counsel that in view of the judgments cited above, deposition of PW2 has to be ignored and in absence her deposition, there is no other incriminating evidence on record. The complainant in the matter who was the main victim has not been examined at all and the remaining witnesses examined by the prosecution are merely formal witnesses being the police officials. Thus, in the absence of any strong incriminating evidence against the accused persons, they deserve an acquittal.
19. I have heard the submissions made by Ld. Defence Counsel and have also carefully perused the citations relied upon.
20. In my opinion, the judgments relied upon by Ld. Defence Counsel are clearly distinguishable on facts from the case in hand. FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 7 of 14
21. The facts of the present case are that when PW2 Archana Kumari was examined before the Court on 30.03.2002, an opportunity was given to the accused persons to cross examine the witness, but they preferred not to subject her to any cross examination and accordingly, the evidence of PW2 was closed.
22. Thereafter, on an application moved by the accused persons, PW2 was permitted to be recalled for her cross examination vide order dated 26.08.03. The said order clearly stated that the permission was granted subject to the condition that in case of nonavailability of witness, her examination which has already been conducted shall be read in evidence. Thereafter despite several efforts, PW2 could not be traced as she has shifted from her previous address. Efforts were made to trace her and summons were issued through IO, SHO as well as ACP. But, as the fate may have it, she could not be traced and thus, her cross examination could not be conducted.
23. Whereas in Gopal Saran's case (cited at (i) supra), after the remand back of the case with a direction to give an opportunity to the defendant to cross examine the plaintiff, the plaintiff who was at all times available, did not present himself for cross examination. In these circumstances, the Apex Court held that it was not safe to rely on his examination in chief.
24. In Phani Bhushan's case (cited at (ii) supra), PW3 and PW4 FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 8 of 14 were not tendered for cross examination at all and thus, their evidence was expunged.
25. In S.C Mitter's case, (cited at (iii) supra) the witness was only partly cross examined and later on, did not appear before the Court due to some illness, which was also not proved, and accordingly his evidence was not read and it was held that opportunity to cross examine is a full opportunity and not a partial one.
26. In Santan Dev's case (cited at (iv) supra), it was held that the evidence given by a witness in examination in chief before framing of charge is not admissible if the witness could not be produced for cross examination.
27. In Randhir Singh's case (cited at (v) supra), two witnesses were examined in the absence of the accused as he was absconding. Later on, the accused was arrested. However, these witnesses could not be produced before the Court for cross examination. Thus, it was held that evidence of these witnesses could not be relied upon as opportunity to cross examine them has not been given to the accused.
28. In Hari Prasad's case (cited at (vi) supra), diligent search for the witness was not done when he was recalled for cross examination and thus, it was held that his evidence cannot be FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 9 of 14 brought on record u/s 33 of Indian Evidence Act without first making a diligent search for him.
29.Thus, as discussed above, the cases referred to by Ld. Defence Counsel deal with the situation where either the opportunity to cross examine a witness has not been given to the accused, or the witness has not been diligently traced or has not presented himself for cross examination or has been only partly cross examined.
30. The case at hand is entirely different. In the present case, opportunity has been given to the accused persons to cross examine Archana Kumari i.e PW2 not once but twice. On the first occasion, they did not avail the opportunity and on the second occasion, the witness was not traceable despite diligent efforts to trace her. There is no reason to expunge the deposition of PW2 in the instant case. In my opinion, in the facts and circumstances of the present case, deposition of PW2 Archana Kumari is relevant and admissible in evidence in terms of the provisions as enshrined in section 33 of the Indian Evidence Act, 1872.
31. Section 33 of Indian Evidence Act, 1872 provides as under:
"33. Relevancy of certain evidence for proving , in subsequent proceeding, the truth of facts therein stated.Evidence given by a witness in a judicial proceeding, or before any FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 10 of 14 person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without any amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 11 of 14 prosecutor and the accused within the meaning of this section".
32. All the necessary ingredients of section 33 Indian Evidence Act are duly present in the instant case. The accused persons were given and had the right to cross examine PW2 at the first instance and the witness could not be found later despite diligent and sufficient efforts.
33. The condition imposed by my Ld. Predecessor at the time of granting permission to the accused person to recall PW2 for her cross examination that it shall be subject to the availability of the witness gives further force to my opinion.
34. Now, when I have given my finding that deposition of PW2 is to be read in evidence, it is necessary to evaluate her deposition in the light of the charges framed against the accused persons.
35. The first charge framed against the accused persons is u/s 354/34 IPC. Section 354 IPC provides as under:
"354. Assault 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 FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 12 of 14 description for a term which may extend to two years, or with fine, or with both."
36. The second offence for which accused persons have been charged is u/s 341/34 IPC. Section 341 IPC provides as under:
"341. Punishment for wrongful restraint. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
37. PW2 Archana Kumari has stated on oath that both the accused persons have restrained them (her and her mother Kailash Devi), molested her mother, abused them, used vulgar language and even slapped her mother. As discussed above, the deposition of this witness has gone unrebutted. Her presence along with her mother on the spot of incident at the time alleged is also duly corroborated by the deposition of PW3 and PW4.
38. The dictionary meaning of the word Molest is to make indecent sexual advances to A person who is proved to have molested a lady can clearly be held to be intending to outrage or at least knowing it to be likely that he will thereby outrage her modesty. FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 13 of 14
39. The common intention as required under section 34 IPC can also be gathered from the fact that as per deposition of PW2, both the accused persons were drunk and had together restrained the complainant and her daughter and molested the complainant.
40. Thus, PW2 in her examination has categorically proved the case of the prosecution regarding wrongful restraint and outraging the modesty of her mother by the accused persons in furtherance of their common intention and there is no reason to doubt the unrebutted testimony of the witness to this effect.
41. The accused persons have failed to bring any evidence in support of their plea of alibi as taken by them in their statement u/s 313 Cr.P.C.
42. In view of the aforesaid discussion, I am of the opinion that offences charged against the accused persons have been duly proved beyond reasonable doubt. Both the accused persons are therefore convicted u/s 354/341/34 IPC.
43. Copy of judgment be given to the accused persons free of cost. ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA ) TODAY ON 29.04.2011 Metropolitan Magistrate, Mahila Court/West/Delhi FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 14 of 14 FIR No. 118/98 State Vs. Sanjeev Sharma Etc. 15 of 14