Delhi District Court
Hardeep Singh @ Goldy vs The State on 10 July, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS
JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI
CA No.251/17
Hardeep Singh @ Goldy
S/o Late Sh. Surjeet Singh
R/o H. No. E-101/2, Krishna Nagar
Safdarjung Enclave, New Delhi
..... Appellant
Vs.
The State
(Govt. of NCT, Delhi) ..... Respondent
Date of institution of appeal : 13.10.2017
Arguments heard on : 18.05.2018
Date of final judgment: 10.07.2018
JUDGMENT
1. Present appeal has been preferred by the appellant for assailing the judgment of conviction dated 06.09.2017 and order on sentence dated 15.09.2017 passed by the court of Ld. MM-03, South District (Mahila Court), Saket Courts, New Delhi in FIR No.580/13, PS Safdarjung Enclave. Vide impugned judgment, the appellant/convict was convicted by the Trial Court for the offences punishable under Sections 354/509 of IPC and vide impugned order on sentence, he was sentenced to undergo one year SI for the offence punishable under section 354 IPC alongwith fine of Rs.3000/- and SI for three months for the offence of section 509 IPC. In default of payment of fine, appellant was further directed to undergo SI for 30 days in respect of offence of section 354 IPC. For the sake of convenience, hereinafter, appellant shall be referred as accused.
CA No.251/17Hardeep Singh @ Goldy vs. State page no.1/13
2. Brief facts of the prosecution case as emanating from the trial court record and the present appeal are that on 02.11.2013 pursuant to DD no.45B, ASI Bijender with Const. Sushil visited the spot at House No.95A, Gali No.5, Krishna Nagar, Safdarjung Enclave where complainant Ms. 'S' gave a written complaint narrating the facts to the effect that on the aforementioned address she was living with her family. She was pursuing studies of BBA. One boy namely Goldi son of Tony, was living at the end of gali no.5, Krishna Nagar. On 01.11.2013, when she was going to distribute boxes of sweets on the occasion of Deepawali, said boy Goldi met her on the turn of Gali no.4 and he pulled the complainant towards him and started misbehaving with her by holding her collar and by uttering obscene words. He threatened the complainant by saying that 'meri baat maan ja, tu mujhe jaanti nahi, tera bura haal kar dunga'. Previously also against said boy, complainant had complained to his family members but he continued to harass her. On 02.11.2013, at 7.30 when complainant was coming towards her house accused Goldi touched her by patting on her back and also uttered obscene words and ran away.
3. On the aforementioned complaint of the complainant present FIR was registered u/sec 354/506/509 IPC at PS Safdarjung Enclave. During investigation, IO got the statement of complainant/victim recorded u/sec 164 Cr.PC, recorded statement of other witnesses and also arrested accused from his house. After completing the investigation, IO submitted the chargesheet before trial court on 16.12.2013, whereupon Ld. Magistrate took cognizance. Vide order dated 14.08.2014, charge for the offences punishable u/s 354/354D/506/509 IPC was framed against accused to which he pleaded not guilty and claimed trial.
CA No.251/17Hardeep Singh @ Goldy vs. State page no.2/13
4. During trial, prosecution examined only two witnesses namely Ms. 'S' i.e. the complainant as PW1 and ASI Bijender Singh, the IO of the case as PW-2. The FIR No.580/13 and DD No.45B both dated 02.11.2013 were admitted u/s 294 Cr.PC and were exhibited on record as Ex.PWPW1 and Ex.PW2 respectively.
5. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. The accused did not wish to lead any evidence in defence. Ld. trial court after hearing the arguments from both the sides passed the impugned judgment dated 06.09.2017 thereby convicting the accused only for the offences u/s 354/509 IPC and sentenced him for SI of one year for the offence of Section 354 IPC and SI for three months for offence of Section 509 IPC. For the offence u/s 354 IPC, fine of Rs.3000/- was also awarded and in default thereof the accused was sentenced to further undergo for imprisonment for period of 30 days. Convict/appellant was however, acquitted for other offences of Section 354D/506 IPC.
6. The present appeal has been preferred by appellant/convict on the ground that the order of conviction has been passed by the trial court without appreciating the fact that there were material improvements in the deposition of the complainant and her statement made u/s 164 Cr.PC; that ld. Trial court failed to appreciate that complainant was in love relationship with the accused while her elder sister also used to like him, and for said reason complainant was threatening the accused to implicate him in a false case. Further that, in support of said defence plea, accused had also relied upon the letter Ex.PW1/D1 allegedly written by the complainant to the accused CA No.251/17 Hardeep Singh @ Goldy vs. State page no.3/13 and another letter Ex.PW1/D2 allegedly written by complainant's elder sister to the accused, but Ld. trial court failed to take note of the fact that said letters were not verified by the IO despite directions of Ld. ASJ; Ld. Trial court erred in relying upon the sole testimony of the complainant which suffered from grave contradictions especially with regard to presence of her servant and neighbour because in her statement u/s 164 Cr.P.C., complainant had referred to the presence of her servant Sandeep as well as her uncle from neighbourhood but she did not disclose anything about their presence in her complaint Ex.PW1/A; that ld. Trial court did not appreciate the self contradictory statement of the complainant where she stated that she was touched by the accused on her back which was not possible especially when as per her own version, accused was coming on his bike from the opposite side; Ld. Trial court failed appreciate that no independent witness was examined by the prosecution while the complainant's own testimony was full of contradictions and discrepancies.
7. Ld. Defence Counsel has argued on the same lines of grounds of appeal by submitting that the testimony of the complainant victim was full of material contradictions and discrepancies and Ld. trial court has fallen into grave error by relying upon her testimony without seeking any corroboration from any other material.
8. Per contra, Ld. Addl. PP rebutted the arguments by submitting that undue weight to minor and immaterial discrepancies cannot be given because such discrepancies are bound to occur especially in cases of truthful witnesses as a person cannot be expected to give a parrot like version of the incident. It is further CA No.251/17 Hardeep Singh @ Goldy vs. State page no.4/13 argued that small deviation from the earlier statement which does not go into the root of the matter cannot be made a ground to over throw the case of the prosecution. It is further argued that version of the victim always deserves to be given a special weightage because it is unlikely that the victim would falsely implicate a wrong person. It is further stated that in the instant case, although the accused has come up with the plea of previous animosity with the complainant on account of their love relationship, but he did not lead any iota of evidence to prove said plea. Therefore, in absence of any plausible defence, there was absolutely no reason for the victim to falsely implicate the accused.
9. I have given my thoughtful consideration to the rival contentions raised from both the sides and also perused the entire record.
10. PW1, is the most material witness of the prosecution case as she is the victim of offence. As per her examination in chief, on 01.11.2013, in the evening when she went to the house of her relatives to distribute sweets and reached near parking in front of gali no.5, accused Goldi followed her, restrained her way, pulled collar of her suit and misbehaved with her by catching hold of her hand forcibly. Thereafter, accused abused her with the words 'Behenchod, Maa Ki lodi, Randi". She further deposed that accused also threatened her that if she would deny his proposal, he would kill her and her family members. Complainant narrated said incident to her father. Thererafter, on 02.11.2013 at about 7.30pm, when she was coming from the house of her friends, accused came with his friend on his bike and when he crossed the complainant, he slapped on her breast CA No.251/17 Hardeep Singh @ Goldy vs. State page no.5/13 and hurled abuses on her. Accused and his friend also started hooting and commenting that, 'dar gayi kya'. After the complainant came back to her house and told her father about said incident, police was called at 100 number. After 20-25 minutes, police arrived at the spot and PW1 handed over her written complaint Ex.PW1/A to the police. After that, IO also prepared the site plan at her instance and at 10.30pm accused was arrested vide arrest memo Ex.PW1/B from the place in front of his house by the police at her instance and his personal search vide memo Ex.PW1/C was also conducted by the IO. Complainant further deposed that after sometime the family member of the accused came to her house and pressurized her family for settlement. However, on 07.11.2013, she alongwith her father visited before Ld. MM where she gave her statement u/s 164 Cr.PC.
11. ASI Bijender Singh is the IO of the case, who alongwith Ct. Sushil had reached the spot after receipt of DD No.45B and upon reaching the spot, complainant and her father met him and handed over him the handwritten complaint Ex.PW2/A upon which he prepared the rukka and got the FIR registered through Ct. Sushil. IO proved on record the site plan prepared by him at the instance of complainant as Ex.PW2/B. As per his deposition he arrested the accused from the gate of his house on the identification of the complainant. During investigation, IO recorded statement of witnesses u/sec 161 Cr.PC and on 07.11.2013, he also got the complainant's statement recorded before Ld. Magistrate u/sec 164 Cr.PC.
12. Trial court record further reveals that the FIR No.580/13 and DD No.45B both dated 02.11.2013 were admitted u/s 294 Cr.PC CA No.251/17 Hardeep Singh @ Goldy vs. State page no.6/13 and were exhibited on record as Ex.PWPW1 and Ex.PW2 respectively.
13. Statement of accused was recorded u/s 313 Cr.PC wherein, he denied all the incriminating evidence put to him as incorrect and pleaded his innocence by stating that he was falsely implicated by the complainant with whom he was having relationship for last 5-6 years because complainant's elder sister Reema also used to like him and sent letters to him and when accused showed said letter to the complainant, complainant did not trust him and she threatened him to implicate him in a false case. In defence, accused did not prefer to lead any evidence despite various opportunities given to him.
14. After hearing arguments from both the side, Ld. Trial court discarded the defence plea by observing that the letters allegedly written by the complainant and her elder sister which were confronted to the complainant were categorically denied by her and the accused despite opportunity failed to lead any evidence to prove said letters while on the other hand, prosecution has been able to sufficiently prove the alleged incident of 01.11.2013 when the accused used criminal force against the complainant by pulling her collar and catching hold of her hand and by using obscene words. Ld. Trial court found the testimony of complainant with regard to above incident as clinching, consistent and cogent by observing that complainant successfully stood the test of cross examination and did not fumble in any manner. Since the version of complainant with regard to the subsequent incident of 02.11.2013 was found to be discrepant, therefore, Ld. trial court acquitted the accused for the offence of Section 354D IPC by holding that prosecution failed to establish on CA No.251/17 Hardeep Singh @ Goldy vs. State page no.7/13 record that there was continuous follow up on the part of accused.
15. It is vehemently argued on behalf of the accused that since the version of complainant with regard to incident of 22.11.2013 was not found believable or trustworthy then in such eventuality, the trial court has fallen into error in convicting the accused for other offences by relying upon her uncorroborated testimony with regard to the incident of 01.11.2013. It is argued that since the victim's testimony was not found trustworthy, it was liable to be discarded in its entirety and could not have been relied upon in piecemeal.
16. I have carefully perused the testimony of the complainant recorded before the trial court, her statement recorded before Ld. Magistrate u/s 164 Cr.P.C. as well as her complaint Ex. PW1/A on the basis of which, the FIR was lodged. After carefully analyzing all the versions of complainant, I find the above defence argument bereft of merits in as much as complainant's testimony with regard to the incident of 01.11.2013 is clinching with regard to the alleged conduct of the accused in forcibly holding her hand and misbehaving with her by pulling her with the collar of her suit. As regard the presence of servant of complainant Sandeep, complainant in her cross- examination has clarified that Sandeep had come there when she called him after accused started misbehaving with her. Though, the complaint Ex. PW1/A is silent about the presence of any other person on the spot but, the complainant has clearly mentioned about the presence of her servant and her neighbour in her statement recorded u/s 164 Cr.P.C. Qua the incident of the next day, the trial court found some discrepancy in the version of the complainant because in her complaint Ex. PW1/A, she stated that accused touched her back while CA No.251/17 Hardeep Singh @ Goldy vs. State page no.8/13 in her version recorded before the court, she alleged that accused had slapped her on her breast and considering the fact that as per her cross-examination, accused was coming on his bike from the opposite side, it was opined by the court that it was not possible for the accused to slap on the back while coming from the opposite side. It is in view of said discrepancy in the version of the complainant, the said incident was held to have not been proved beyond doubt.
17. But, in my considered view, mere fact that part of the complainant's testimony was found to be discrepant will not make her entire version untrustworthy or unreliable. As regard the first incident of 01.11.2013, the complainant has come up with the clinching evidence that while she was about to go in her car lying parked in front of her house for distributing sweets to her relatives, the accused came there and forcibly caught her hand and pulled her by holding collar of her suit. She has also specifically disclosed the abusive words used by the accused towards her. The testimony of complainant has remained un-impeached despite extensive grilling in cross- examination. The defence counsel except putting accused's defence in the form of suggestions, was not able to extract anything from the cross-examination of the complainant to discredit her version with regard to the incident of 01.11.2013. The suggestions were categorically denied by the complainant.
18. Despite opportunity, the accused failed to lead evidence to prove his defence. In my view, Ld. Trial court has correctly observed that the onus to prove the letters Ex. PW1/D1 & D2 allegedly written by the complainant and her elder sister to the accused, was upon the accused especially when the complainant CA No.251/17 Hardeep Singh @ Goldy vs. State page no.9/13 during her cross-examination denied having written any such letter to the accused and also the handwriting of his elder sister on Ex. PW1/D2. The accused never moved any application before the trial court for comparison of handwriting of complainant with her alleged handwriting on said letter Ex. PW1/D1. The bald suggestions put to the witness to the effect that she was having a love affair with the accused or that her parents raised objection against their said relationship or that she implicated the accused in the false case at the instance of his father, are not sufficient to prove the defence especially when, the witness categorically denied all said suggestions and successfully withstood the test of cross-examination. As already noted above, the accused failed to bring anything on record even in the cross-examination to discredit complainant's version with regard to first incident of 01.11.2013.
19. The core issue before the court was whether the accused tried to outrage and insult the modesty of the complainant. In the instant case, the alleged conduct of accused in forcefully catching complainant's hand and pulling her by holding collar of her suit in public glare and uttering the filthy/abusive language towards her while she was standing on the road outside her house, evidently shows the accused's intention was to outrage and insult her modesty with his aforementioned conduct.
20. The argument raised from the appellant side that there is no mention of presence of either of servant or neighbour in the complaint Ex. PW1/A, is not at all convincing because the FIR is not supposed to be an encyclopedia of all details of events. In my view, absence of certain facts, which are not relevant to the broad and core CA No.251/17 Hardeep Singh @ Goldy vs. State page no.10/13 issue is not at all fatal to otherwise consistent testimony of a witness especially when the witness is victim of offence of a sexual nature.
21. In Kirender Sarkar and others Vs. State of Assam, AIR 2009 SC 2513, hon'ble Apex court has observed that, "the law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witness except that may be used for the purpose of contradicting maker of the report."
22. One more contention has been raised by the counsel for appellant that prosecution has failed to join any public witness and hence, uncorroborated testimony of complainant was not sufficient to record conviction against the accused. We are also not oblivious of the fact that generally public at large do not feel inclined to be made as a witness in criminal cases especially considering the hassles which sometime the witnesses have to face on account of lengthy trial and repeated adjournments. Therefore, non examination of any public witness cannot by itself be a ground to discard the otherwise credible testimony of the witness especially when the witness herself is the victim of crime.
23. In my considered view, the version of the victim was cogent, consistent and truthful and mere fact that it did not get corroboration through some independent witness is not sufficient to discard her version because in any case, it is the quality and not the quantity of evidence, which actually matters for proving the case.
CA No.251/17Hardeep Singh @ Goldy vs. State page no.11/13
24. Now coming to section 354 IPC which prescribes
punishment for use of criminal force or assault on any woman with an intention to outrage her modesty, though the word modesty has not been defined anywhere in Indian Penal Code but, in State of Kerala Vs. Hamsa; LAW (KER)-1986-(6-13). It was held by the Hon'ble Kerala High Court that modesty is the attribute of female sex and it is a virtue which attaches to a female on account of sex. The question of infringing the modesty of a woman depend upon the customs and habit of people and the acts which are outrageous to morality would be outrageous to modesty of women. In the light of above observation, the consistent testimony of the victim to the effect that the accused caught her hand forcibly and pulled her by holding collar of her suit and abused her in a public glare evidently establishes the fact that the accused used criminal force against complainant with an intention to outrage her modesty. Accused's conduct in holding complainant's hand forcibly and pulling her by her collar and hurling abuses on her, by its very nature was outrageous and insulting to the modesty of any woman and thus, was sufficient to make him liable to be punished for the offence u/s 354/509 IPC.
25. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved act. Considering the repeated incidents of stalking, sexual assaults, acid attack etc, these road side romeos, have to be strictly dealt with by the courts. In Ajahar Ali Vs. State of West Bengal, SLP (Crl) No.2817/13 decided on 04.10.2013, Hon'ble Apex Court had taken a stern view against such offenders, who make the life of innocent girls miserable. While declining the benefit of probation to CA No.251/17 Hardeep Singh @ Goldy vs. State page no.12/13 accused it was held that such crimes are heinous crime and with social condition prevailing in society, the modesty of a woman has to be strongly guarded, In said case accused was convicted for the offence of Section 354 IPC and the allegation against him were that, he forcibly caught hold of complainant's hair, while she was going to attend her tuitions and planted a kiss, resultantly she suffered a cut over her lower lip and started bleeding.
26. Having regard to aforementioned position of law, I am of the view that accused was rightly declined the benefit of probation by Ld. trial court. In view of aforementioned discussion, I do not find any illegality or infirmity in the impugned judgment warranting any interference by this court. On the point of sentence, the trial court has already taken a lenient view as for the offence of Section 354 IPC, minimum prescribed sentence of one year with fine of Rs.3000/- has been awarded whereas, for the offence of section 509 IPC, only the sentence of three months has been awarded. I do not find any further scope for reducing the sentence. In view of the aforementioned discussion, the appeal stands dismissed.
27. TCR alongwith copy of this judgment be sent back to trial court.
28. Appeal file be consigned to record room.
Announced in the open court on 10.07.2018 (SUNENA SHARMA) Addl. Sessions Judge-03(South) Saket Courts, New Delhi John Digitally signed by John Doe CA No.251/17 Doe Date: 2018.07.10 20:46:09 +0530 Hardeep Singh @ Goldy vs. State page no.13/13