Delhi District Court
State vs . Harish Kumar on 6 June, 2013
IN THE COURT OF MS. JYOTI KLER: METROPOLITAN MAGISTRATE
(MAHILA COURT) SOUTH DISTRICT, SAKET COURTS:NEW DELHI
State Vs. Harish Kumar
FIR No. : 185/12
U/S : 354/341/356/379/411 IPC
PS : Fatehpur Beri
Case ID : 02406R038412012
JUDGMENT
a) Sl. No. of the case : 142/2A/12
b) Date of commission of offence : 09.07.2012
c) Date of institution of the case : 01.09.2012
d) Name of the complainant : Smt. Jyotsna Swain
e) Name & address of the : Harish Kumar
accused S/o Late Sh. Ashok Kumar
R/o H.No. 19, Masjid Moth,
New Delhi.
f) Offence complained of : 354/341/356/379/411 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 28.05.2013
i) Date of Judgment : 06.06.2013
j) Final Order : Conviction
1. Victim Km. Sanya Swain is a young girl aged 14 years, whose sense of decency and integrity was attacked. Complainant Smt. Jyotsna Swain, is the mother of the victrim and accused Harish Kumar is a 27 years old Indian male belonging to Delhi and he is unemployed.
Important Dates and Events
2. Alleged incident occurred on 09.07.2012 at about 7.20PM near house No. 28, First Floor, Masjid Moth, New Delhi. FIR was registered on the same day at about 10.00PM vide DD No. 45A for the offence punishable u/s FIR No. 185/12 PS:Hauz Khas Page 1 of 12 354/341/356/379 IPC. Investigation was conducted by SI Amit Kumar of PS Hauz Khas who had received information about the incident via DD No. 38A dated 09.07.2012 registered at PS Hauz Khas at around 7:42PM. During investigation he prepared the site plan on the same day. Accused was taken for medical examination which was conducted on 10.07.2012. After registration of FIR accused was arrested on 10.07.2012 at about 8.00 PM.
3. After completion of investigation, chargesheet was filed in the Court on 01.09.2012 for the offences punishable u/s 354/341/356/379/411 IPC . Court took cognizance of the offences on the same day. Copy of chargesheet was supplied to the accused on 05.09.2012. Since the accused was in Judicial custody, Legal Aid counsel was provided to him. Charge for the offences punishable u/s 354/341/356/379/411 IPC was framed against the accused on 23.11.2012 to which the accused pleaded not guilty and claimed trial.
4. During trial, prosecution examined 6 witnesses. PE was concluded on 30.03.2013. Statement of the accused u/s 313 Cr.P.C was recorded on 09.04.2013. Accused examined one witness in his defence and DE was concluded on 07.05.2013. Final arguments were heard on 27.05.2013 and 28.05.2013 and the matter was fixed for judgment today.
5. It is pertinent to note here that the accused was arrested on 10.07.2012. It appear from the record that no application seeking bail was ever moved by him. Hence, he is running in custody since the date of his arrest.
Facts of the Case
6. Story put forth by the prosecution is that on 09.07.2012 at about 7.20PM victim Sanya Swain aged 14 years was coming to her house situated at FIR No. 185/12 PS:Hauz Khas Page 2 of 12 Second Floor, bearing No. 28, Masjid Moth, New Delhi. Accused Harish blocked her way on the first floor of house No. 28 and asked her to kiss him. On refusal, he pressed the breast of the victim and embraced her. On her objection, he made her smell a fluid. Victim raised an alarm and her mother reached on the spot. Seeing the mother of the victim, accused snatched the mobile phone of the victim make Nokia N 70, IMEI 351863017400066 and fled away from the spot. A PCR call was made.
7. Story put forth by the defence, as is recorded in the statement of the accused u/s 313 Cr.P.C., is that the accused was falsely implicated due to a quarrel with one boy who was accompanying the victim. Accused slapped the said boy during the quarrel after which he was falsely implicated in the present case.
Evidence on Record
8. Prosecution has examined total six witnesses in this case. Out of these six witnesses two witnesses are public witnesses, one is medical witnesses and remaining three are official witnesses.
9. The two public witnesses i.e. PW1, and PW3 are the victim Km. Sanya Swain and complainant Jyotsna Swain (mother of the victim) respectively. They are also the most material witnesses of the prosecution.
10. PW1 has reiterated the contents of the complaint on oath. She deposed that on 09.07.2012 at about 7.30PM, she was returning to her home after dropping the child who comes to her house for taking tuitions from her mother. She was reading message on her mobile phone. It was semi dark in the staircase. Accused her from her back and said that he wanted to talk to her. FIR No. 185/12 PS:Hauz Khas Page 3 of 12 She showed her disinterest after which the accused made her sit in his lap and said that he liked her. She was scared and the accused made her smell a whitener like substance put on the handkerchief. He tried to kiss her and press her chest. She put stiff resistance and tried to run away but accused pushed her on the bed lying on the ground floor for the use of the Guard. She started shouting after which her mother reached on the spot. Seeing her mother, accused ran away after snatching the mobile phone Ex.P1. She further deposed that she had seen the accused even prior to the incident and her friends had told her that he was not of good character. During cross examination she denied the suggestion that she was deposing falsely or that she had any enmity with the accused.
11. PW3 also deposed in sync with the testimony of PW1. She identified her complaint Ex.PW3/A and the mobile phone Ex.P1. She also denied the suggestion that the accused was falsely implicated or that she had any enmity with the accused.
12. The medical witness is PW2 Dr. Ranjan. He proved the MLC of accused Harish which is Ex.PW2/A, which states that no injury was found on the person of the accused.
13. The three official witnesses are PW4 SI Amit Kumar, PW5 Ct. Ramesh and PW6 HC Devender Singh. Out of these three witnesses, one witness i.e.PW6 is formal witness. Remaining two witnesses are involved in the investigation of the case.
14. PW6 has proved the FIR Ex.PW6/A and endorsement Ex.PW4/A on the rukka.
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15. Remaining two official witnesses i.e. PW4 and PW5 have deposed about the steps of investigation undertaken by the IO. PW4 is the IO of the case. The identified the rukka Ex.PW4/A, site plan Ex.PW4/B, arrest memo of the accused Ex.PW4/C, personal search memo Ex.PW4/D, seizure memo of the mobile phone Ex.PW4/F and the mobile phone Ex.P1. During cross examination both these witnesses denied the suggestion that the accused was falsely implicated and deposed that as per the version of the complainant the incident occurred on the first floor and that that no Guard was present on duty on the date of the incident.
16. Entire incriminating evidence was put to the accused which was denied by him. Stand taken by the accused during his examination is already discussed in paragraph No.7 of the judgment. The accused examined one witness in support of his case i.e. DW1 Raj Bala, his mother. She deposed that on 09.07.2012 it was the Tehrwi Kriya of her husband who expired on 01.07.2012 and the accused was busy meeting his relatives and friends and he stayed in the house for the whole day. However, at 9:00PM police officials visited the house but did not take away her son as he was busy in Tehrwi. However, on 10.07.2012, the police officials took away the accused from the Dhaba of his uncle at around mid noon and when she went to the PS for enquring about him, she was told that the accused shall be released after some enquiry. However, later on he was falsely implicated in this case. During cross examination, she deposed that her son i.e. the accused had a quarrel with the complainant on 09.07.2012 after which he was falsely implicated and she had lodged a complaint in this regard in the police station. However, no complaint FIR No. 185/12 PS:Hauz Khas Page 5 of 12 was proved by her.
Arguments
17. Ld. APP for the State argued that the accused be convicted as both the material witnesses PW1 and PW3 have corroborated each other in all material particulars and no infirmity could be pointed out in their cross examination conducted by the Ld. Defence counsel.
18. Ld. Defence counsel, on the other hand, argued that there are material contradictions in the testimony of 2 public witnesses as there are certain additions in the testimony before the Court over the statement given before the police officials.
Legal Framework
19. In the present case, accused has been charge for the commission of offences punishable u/s 354/356/379/341/411 IPC.
20. In order to bring home the charge under Section 354 IPC, the prosecution has to prove the following ingredients:
i) That the victim concerned belonged to fair sex - whatever her age may be;
ii) That the accused subjected her to assault as defined in Section 351 of Indian Penal Code or to criminal force as defined in Section 350 IPC; and
iii) That the accused while committing assault or using criminal force intended to outrage the modesty of the victim or knew that he was likely to outrage her modesty.
21. As per Section 349 IPC, a person is said to use force to another FIR No. 185/12 PS:Hauz Khas Page 6 of 12 when he causes motion, change of motion, or cessation of motion to that other, if he causes to any substance such motion, change of motion or cessation of motion as brings it in the contact with any part of that other's body, or with anything, which that other is wearing or carrying, or with anything so situated that such contact which affects the 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 the motion. As per Section 350 IPC, the use of 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 annoyance. Assault as defined in Section 351 is short of criminal force. It is the act of making any gesture or preparation with intention or knowledge that such gesture or preparation shall make a person apprehend that criminal force is likely to be used against him.
22. The term of "modesty" or "outraging of modesty" has not been defined in IPC. However, in the Oxford English Dictionary (1933 Edition), the meaning of word modesty is given as "Womanly propriety of behaviour, scrupulous chastity of though, speech and conduct (in men or women) 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.
23. In the case of State of Punjab Vs. Major Singh: AIR 1967 SC 63, Justice Bachawat observed that the essence of a woman modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, FIR No. 185/12 PS:Hauz Khas Page 7 of 12 intelligent or imbecile, awake or sleeping, the woman possess a modesty capable of being outraged. It is thus clear that 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 amount to outraging the modesty of a woman.
24. Section 341 of the IPC punishes wrongful restraint i.e. blocking of that passage of the victim in which he has a right to proceed. Section 356/379 punishes the theft committed after using criminal force.
25. Apart from proving the necessary ingredients of Section 354/356/379/341/411 IPC in this case, prosecution was also under a challenge to show that the testimony of child witnesses was worthy of reliance. Law relating to the appreciation of the testimony of a child witness has been spelled out by the Hon'ble Superior Courts many a times.
26. In Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra:
2008 (12) SCC 565, it was held as follows:
"8 The age of the witness during examination was taken to be about 12 years. The Indian Evidence Act, 1872 (in short "The Evidence Act") does not prescribe any particular age as a determining factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, diseasewhether of mind or any other cause of the same kind. A child of tender years must be allowed to testify if he has intellectual capacity to FIR No. 185/12 PS:Hauz Khas Page 8 of 12 understand questions and give rational answers thereto. The position was concisely stated by Brewer J in Wheeeler United States (159US523). The evidence of a child witness is not required to be rejected perse but court as a rule of evidence considers such evidence and close scrutiny and on being convinced about the quality thereof and reliability can record conviction, based thereon. "[See "Surya Narayana Vs. State of Karnataka:2001(9) SCC 123]".
27. In Dattu Ramrao Sakhare Vs. State of Maharashtra: (1997) 5 SCC 341 where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
28. In Pancchi Vs. State of UP: AIR 1998 SC 2726 it was held that:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to FIR No. 185/12 PS:Hauz Khas Page 9 of 12 tutoring".
29. Thus it is settled that a child is as competent as any other witness to testify and conviction can be solely based on her testimony which only needs careful consideration ruling out the possibility of her being tutored or coached. There is no rigid rule that corroboration is essential or indispensable to place reliance upon the testimony of a child.
Assessment of Evidence
30. The material witnesses of the prosecution in the present case are PW1 and PW3. PW3 is not an eye witness but the complainant. PW1 is the victim and the child witness.
31. Both PW1 and PW3 were examined by the Ld. Predecessor Court. Before examining the PW1, Ld. Predecessor had put certain questions to her in order to ascertain her voluntariness. After being satisfied that PW1 was not tutored and that she was capable of understanding the questions put to her Ld. Predecessor recorded her statement.
32. Both PW1 and PW3 have reiterated the contents of the complaint on oath. During cross examination, their credibility could not be shaken by the defence. Defence attempted to prove that the witnesses were having previous enmity with the accused but failed to substantiate this fact by giving the details of such enmity.
33. Accused stated during his examination that he had a quarrel with a boy who accompanied PW1 on the date of the incident and he had slapped that boy after which he was falsely implicated. However, no such suggestion was given to PW1 or PW3. This stand of the accused is also in contradiction to the FIR No. 185/12 PS:Hauz Khas Page 10 of 12 testimony of DW1 who deposed that her son was present in the house for the entire day. DW1 also deposed that her son had a fight with the mother of the victim which is not the fact stated by the accused.
34. Ld. Defence counsel stated that there were certain additions in the testimony of PW1 and PW3 over the complaint. However, neither of these two witnesses were confronted over the said aspect during cross examination. Further, it is the settled principle that the FIR is not the encyclopedia of the entire event. The additions in the testimony of PW1 and PW3 are only towards complete narration of facts and there is no addition or deletion of a fact. Such improvements are not material and cannot be used to disbelieve a credit worthy witness.
Decision
35. From the above said discussion, it is clear that the prosecution has proved the following facts beyond reasonable doubt:
a) That the accused Harish blocked the passage of victim Sanya at the first floor of house No.28, when she was going to the second floor of the said house where she was residing with her family.
b) That the accused Harish embraced the victim Sanya and pressed her breast and tried to kiss her.
c) That the accused used criminal force against the victim and took away her mobile phone Ex.P1 without her consent and with dishonest intention.
36. These proved facts show the use of criminal force by the accused against the victim on such part of her body which would outrage the sense of FIR No. 185/12 PS:Hauz Khas Page 11 of 12 decency of an ordinary woman of the society, and in that process accused also wrongfully restrained the victim and snatched her mobile phone. These facts constitute the necessary ingredients of the offences punishable u/s 354/341/356/379 IPC.
37. The accused is accordingly convicted of the aforesaid offences. No separate conviction for the offence u/s 411 IPC is warranted as the offence u/s 379 IPC has been proved against the accused from the testimony of PW1 and PW3.
Pronounced in open court
on 06.06.2013 (Jyoti Kler)
M.M Mahila Court (South),
Saket, New Delhi
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