Delhi District Court
State vs . Kaidar Nath on 21 September, 2012
FIR No. 175/07 1/8 21.09.2012
0IN THE COURT OF MS. KIRAN GUPTA , METROPOLITAN
MAGISTRATE, MAHILA COURT, CENTRAL DISTRICT, DELHI
FIR NO. 175/07
PS DBG Road
U/S 354 / 506 IPC
State Vs. Kaidar Nath
JUDGEMENT
1. Sl. No. of the case : 175/07
2. Name of the complainant : Sumitra
3. Date of commission of offence : 16.04.2007
4. Name of accused and Address : Kaidar Nath
S/o. Sh Laxman Dass
H No. 126 B, Loco Railway Colony
Near Filmistan, Delhi - 6.
5. Offence complained of : 354 / 506 IPC
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted U/s. 354 IPC
Acquitted U/s 506 IPC
8. Date of such order : 21.09.2012
Date of Institution of case : 12.03.2008
Date of hearing Final Argument: 19.09.2012
Date of decision of case : 21.09.2012
1 Case of the prosecution is that on 16.04.2007 at around 08:20
am, accused in order to fix the duty of complainant called her in his office while no one else was present in the office and made inquiry from her whether her phone is not working and further offered her that he would buy a new phone for her. He held her hand and tried to touch her various parts of body. When she told him that she is not such kind of lady, he FIR No. 175/07 2/8 21.09.2012 took out Rs. 5,000/ from his pocket and offered her the same. When she refused, he threatened her that if she would not co operate with him, he would harass her. She pushed him and accused fell down. She came out of the office and made noise and then went to her duty cabin. Then accused came to her duty cabin and threatened her, if, she disclosed anything to anyone, he would kill her. Present FIR has been lodged on the basis of complaint dated 16.04.2007.
2 Charge U/s. 354 / 506 IPC was framed against the accused on 22.05.2009 to which he pleaded not guilty and claimed trial.
3 Prosecution with a view to establish its case has examined 9 witnesses. PW1 Sumitra is the complainant herself and has proved initial complaint Ex.PW1/A, arrest memo of accused Ex.PW1/B and his personal search memo Ex.PW1/C. PW2 Vinod Kumar has proved the attendance register of complainant and accused Ex.PW2/A and Ex.PW2/B respectively. PW3 Spencer, PW5 Naraian and PW7 Mathwar Singh are the public witnesses who were also working with the Railways at that time. PW4 WASI Davinder Kaur has proved the FIR Ex.PW4/A and endorsement on the rukka as Ex.PW4/B and DD No. 14 A. PW6 HC Ramesh Kumar proved the site plan Ex.PW1/D and is the assisting IO. PW8 ASI S. K. Srivastava has proved the DD No. 18 which is already Ex.PW6/A and also proved endorsement on the initial complaint as Ex.PW8/A. He is the IO of the case and has proved the entire investigation. PW9 Ct. Praveen is also one of the assisting IO. PE was closed on 17.08.2012.
FIR No. 175/07 3/8 21.09.2012 4 Statement of accused U/s. 313 of Cr.P.C. was duly recorded
after putting all incriminating evidence to which he stated that he is innocent and has been falsely implicated in the present case by the complainant who was working as BERA in running room of Railway Station Sarai Rohilla and she had merely come to the Loco Shed to take her pay. He further stated that he has been falsely implicated as he refused to transfer complainant to Loco Shed from running room, Sarai Rohilla, despite her request. Accused in order to support his contentions has examined Om Prakash who was posted as call man at Loco Shed at that time as DW1.
5 Heard Ld. Defence counsel, Ld. APP for the state and perused the complete record file.
6 PW 1 Sumitra during her examinationinchief has deposed that on 16.04.2007, she was working as Cook / RRB in the railway. On the day of incident she was on duty at Loco office Railway Colony and came at 8 AM on her duty. Accused called her in his office for marking her attendance in the register. When she reached to the office, accused started talking to her and told her that her mobile is out of order. He caught her and tried to touch various parts of her body and further tried to touch his body with her body. When she objected and told him that she is not such kind of woman and he should not touch her body, accused told her that if she allows him to do so, then she can come at any time in the office and can have fun with him. Thereafter, she pushed him and accused fell on the ground and she ran away from the spot. She went to FIR No. 175/07 4/8 21.09.2012 her duty cabin. Accused also reached there and tried to offer Rs. 5,000/ to her and further threatened her that, if she told about the aforesaid incident to any one, then he would kill her. She became frightened but some how came out of the Loco office and called the police. She gave her statement Ex.PW1/A. 7 She in her crossexamination admitted that her duty was from 8 AM to 4 PM and she never used to put her attendance mark anywhere for attending her duty. She volunteered that accused Kaidar Nath himself put her attendance in the register. On the day of incident, her duty was fixed by the accused in his office, otherwise she had duty at RRB in the running room of the railway station Sarai Rohilla. The office of accused was in Loco Shed at railway station Sarai Rohilla and the walking distance between the running room and Loco Shed is about half an hour. She further admitted that 56 other employees of Railway including two ladies used to work in the office of accused at that time. She used to go daily to the office of accused for marking her attendance first and thereafter she used to resume her duty wherever she was told to do the same. There was one peon in the office of accused but he was not present at the time of incident. Further, at the time of incident, no other employee or any other public person was present in the office of accused. She further admitted that she reached the office at about 7:55 am as about two days before the incident, the accused called her to come at 7:45 AM in his office on 16.04.2007. She admitted that she had told to the police that accused caught her and tried to touch various parts of her body and further tried to touch his body with her body.
FIR No. 175/07 5/8 21.09.2012 8 The fact that the attendance of class IV employees was
marked by accused and complainant had gone to Loco Shed office on the said date is established from Ex.PW2/B and from the testimony of PW 3 Spencer, PW5 Naraian, PW 7 Mathwar Singh. PW 3 Spencer, PW5 Naraian and PW 7 Mathwar Singh have categorically deposed that the attendance of class IV employees was marked by the accused. It is further established that 16.04.2007 was the pay day and the employees have gone to Loco Road, Sarai Rohilla for taking their pay. PW3 has categorically deposed that when he reached to the office on 16.04.2007 for taking his pay, he saw that hot words were going on between the accused and complainant and after few minutes police came to the spot. He heard that complainant and accused were abusing each other. PW 7 also deposed that when complainant came at Loco Shed, accused misbehaved with her by abusing her in filthy language. Even during crossexamination he admitted that filthy abuses were given by the accused to the complainant in his presence but he denied of any physical misbehaviour by the accused with her.
9 Defence of the accused is that he has been falsely implicated by the complainant as she wanted to get herself transferred at Loco Shed and when he denied her many times for the same, she falsely implicated him in the present matter. He has examined DW1 in order to support his contentions. DW1 in his examination in chief has deposed that on 16.04.2009 Sumitra Devi came in the office of Loco Shed at around 9:30 am . He was present in the office at that time. Accused was also present in FIR No. 175/07 6/8 21.09.2012 the office and about 1015 other employees were also present there. Sumitra Devi came to take her pay as the pay was distributed in Loco Shed for the railway employees. Sumitra Devi told Kaidar Nath to post her in Locoshed from Running Room Bera. Kaidar Nath refused to oblige her . Thereafter tutu maimai took place between them . After some time police came there. Thereafter he left for his duty to call Loco driver from the colony and later on came to know that police had taken Kaidar Nath from the office and case has been registered against him. DW 1 in his testimony has merely deposed one incident when the complainant requested the accused to post her in Loco Shed. No preceeding incident has been stated by DW 1 to convince that complainant has falsely implicated the accused. It is unconvincing that mere refusal to oblige her demand for transfer and that too once, complainant falsely implicated the accused. Further DW 1 admitted that duty was assigned at 8:00 am and the same used to be assigned by Kaidar Nath. Case of prosecution is that the incident took place at around 8:30 am in the morning. It is not the defence that complainant did not report in the morning on the date of incident and had only come at around 9:30 am. Admittedly, complainant used to go daily to the office of accused for marking her attendance first and thereafter she used to resume her duty wherever she was told to do the same. Hence, the deposition of DW1 to the extent that she had come only to take pay at around 9.30 am also does not repose much confidence. The incident as per case of the prosecution and complainant happened at around 8.20 am . The duty of the complainant was from 8 am to 4 pm. Moreover, in the entire cross examination by the complainant, there is no suggestion regarding the request of the complainant for any sort of FIR No. 175/07 7/8 21.09.2012 transfer to the accused and his consequent refusal to comply with the said request. The said defence has been taken by accused for the first time in his statement u/s 313 Cr.PC. Hence, I am of the view that defence put forth by the accused does not repose any confidence.
11 The ultimate test to ascertain whether modesty has been outraged, is whether, the action of offender is such as can be perceived , as one which is capable of shocking sense of decency of a woman. When the said test is applied in the present case, PW 1 Sumitra has categorically deposed that accused Kaidar Nath tried to touch various parts of her body and tried to touch his body with her body. He further told her, if she allowed him to do so, she can come at any time in the office and can have fun with him. He not only stopped there but as when the complainant pushed him, he went to her duty cabin and tried to offer Rs. 5,000/ to her. The contradictions pointed out by Ld. Defence counsel about non use of exact words as stated in initial complaint does not goes to the root of the case of prosecution. No person can be expected to depose in verbatim or even express specific words . The woman's reaction is most relevant in deciding the question of guilt. The complainant immediately reported to the police without any delay as is evident from DD No. 14A and 18 and FIR Ex. PW 4/A . Accused has failed to prove the motive of his false implication. PW1 has deposed the contents of her initial complaint in substratum and has stood the test of cross examination. On the basis of evidence on record, I am of the considered opinion that prosecution has established its case against the accused for the offence U/s. 354 IPC beyond the pales of reasonable FIR No. 175/07 8/8 21.09.2012 doubt. Accused is thus convicted for the offence U/s. 354 IPC.
12 As regards the offence U/s. 506 IPC is concerned, complainant has failed to show how the accused criminally intimidated her to cause threat in her mind in order to attract the offence U/s. 506 IPC. PW 1 has merely stated that accused threatened her that he would kill her if she complained regarding the same to anyone else. In my view, said act does not tantamount to criminal intimidation which is punishable U/s. 506 IPC. In the absence of any cogent evidence against the accused, accused is acquitted for the offence u/s. 506 IPC.
Announced in the open court (Kiran Gupta)
on 21.09.12. MM/Mahila court/Central,
Delhi
FIR No. 175/07 9/8 21.09.2012