Delhi District Court
State vs Swalin on 19 November, 2014
IN THE COURT OF MS. MONA TARDI KERKETTA METROPOLITAN
MAGISTRATE : MAHILA COURT ( CENTRAL DISTRICT): TIS HAZARI COURTS:
DELHI
STATE VERSUS SWALIN
FIR No. 55/12
P.S. Sarai Rohilla
U/s. 323/354/452/455/457 IPC
1. Sl. No. of the case : 02401R0253102012
2. Name of the complainant : Smt. Mithlesh
W/o Sh. Ram Gopal
3. Name of accused and address : Swalin
S/o Sh. Md. Taqir Hussain
R/o N95/84, Jhuggi Shahzada Bagh,
Inderlok, Delhi.
4. Offence complained of : U/s 323/354/452/455/457 IPC ( Charge
framed U/s 323/354/452/457 IPC)
5. Plea of accused : Pleaded not guilty
6. Final order : Convicted
7. Date of such order : 19.11.2014
Counsels for the parties
For the State : Sh. Anuj Prakash
For the Accused persons : Sh. Anil Dutt Sharma
BRIEF REASONS FOR THE DECISION :
1. The facts of the case as have been disclosed in the statement made by the complainant Smt. Mithlesh W/o Sh. Ram Gopal R/o H. No. J327, Rakhi Market, Zakhira, Delhi, wherein it is stated that complainant has been residing at abovesaid address with her family and doing a private job. It is further stated that whenever she used to go out be for her job to office or for any other work, accused Swalin would trouble her by using filthy and abusive words. He used to threaten her of dire consequences in case, she disclosed about his acts to anyone. The complainant tried to persuade the accused but he did not pay any heed to her request. It is further stated that on 07.02.2012 at about 9.30 pm, while the FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 1/14 complainant was present in her house and preparing dinner, accused entered her one room house, held her breast and started touching her hips. The complainant pushed him back and raised the alarm. On this, the accused hit her head with some object, due to which she sustained injuries and became unconscious. The PCR police officials got the complainant admitted in the hospital. After she regained the consciousness, police recorded her statement and inquired into the matter. It is stated that the accused had entered the complainant's house and outraged her modesty and, therefore, he is liable to be punished as per law.
2. On the basis of complainant's statement, a case under section 323/354/452 was registered. After completion of investigation, chargesheet was filed u/s 323/354/452/457 IPC against the accused. Cognizance of the aforesaid offence was taken by my Ld. Predecessor and accused was summoned to face the trial for the offence allegedly committed by him. The documents were supplied to him on compliance of the provision u/s 207 Cr.P.C.. He was heard on the point of charge and vide order dated 22.06.2012, charge was framed against the accused under the provisions of 323/354/452/457 IPC by my Ld. Predecessor.
3. Subsequent thereto matter was fixed for prosecution evidence. In order to prove its case, the Prosecution produced following thirteen witnesses :
(i) Complainant Smt. Mithlesh appeared as PW1 and proved her complaint Ex. PW1/A,
(ii) HC Megh Shyam, appeared as PW2,
(iii) Smt. Kamlesh, sister of the complainant, appeared as PW 3,
(iv) Ct. Shiv Raj appeared as PW4,
(v) Sh. Ram Gopal, husband of the complainant, appeared as PW5,
(vi) Ct. Jitender appeared as PW 6, and proved arrest memo Ex. PW6/A,
(vii) Ct. Mahipal, D.D. Writer, appeared as PW7 and proved DD No. Ex. PW7/A(OSR),
(viii) HC Raj Kumar appeared as PW8,
(ix) HC Subhash Chand appeared as PW9 and proved MLC Ex. PW9/A, Rukka Ex.
FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 2/14
PW9/B and site place Ex. PW9/C,
(x) SI Ramphal appeared as PW10 and proved disclosure statement Ex. PW 10/A and personal search memo Ex. PW 10/B,
(xi) WHC Rajesh Sharma Duty Officer, appeared as PW11 and proved FIR Ex. PW 11/A,
(xii) Dr. Dharmendra Kumar appeared as PW12 and proved MLC of complainant vide already Ex PW9/A,
(xiii) Sh. Joginder Singh, Record clerk, appeared as PW13 and identified the handwritings and signatures of Dr. Tarun Kumar Sania on MLC Ex PW9/A,
4. Subsequent thereto, matter was fixed for recording of statement of accused under section 313 CrPC, wherein entire incriminating circumstances appearing on record were put to him , to which he denied as false and incorrect and stated that he has been falsely implicated but did not prefer to lead evidence in his defence.
5. Subsequent thereto, matter was fixed for final arguments. The following arguments were submitted on behalf of the prosecution :
(a) that testimonies of prosecution witnesses are consistent, reliable and trustworthy. They have supported each other on material particulars,
(b) that the plea of false implication has not been proved by leading defence evidence,
6. The arguments made on behalf of the accused are mentioned below :
(i) that major contradictions and improvement in the testimonies of material witnesses cast a serious doubt over the truthfulness of the prosecution story,
(ii) No offence under section 452 and 457 IPC is made out as entry of accused inside complainant's house is not proved. During cross examination, PW1/complainant has admitted that the door was closed from inside and this fact is not mentioned in her complaint Ex PW1/A. These facts go on to suggest that the complainant had either herself opened the door or the accused never visited the house,
(iii) complainant has mentioned the name and parentage of the accused, which FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 3/14 goes on to suggest that she knew the accused before the incident and therefore, filed a false case against him,
(iv) complainant has stated in examination in chief that she got injuries by some object but in the statement given to police, she stated that accused had hit her head with a danda, which appears to be afterthought,
(v) non seizure of blood soaked clothes of complainant proves that she never received injuries,
(vi) spot of occurrence is thickly populated area but no one came for her rescue after alarm was raised, hence, false implication of accused is not ruled out,
(vii) testimony of PW3 can not be relied upon as she is an interested witness and many contradictions can be seen in her testimony. She has stated that police had recorded her statement only once but one more statement is on record. During cross examination, she has stated that she had not signed any statement recorded by the police then again said that she did not remember if she had signed, which suggest false implication of accused,
(viii) in the testimony of PW3, she has stated it takes two minutes to reach the complainant's house and she reached there on hearing complainant's noise but in the given distance, complainant's noise could not have been heard,
(ix) no call record has been produced to prove the PCR call allegedly made after the incident,
7. The court has heard the submissions of both the sides and also gone through the entire record including the testimonies of witnesses. Before appreciation of evidence, let us first discuss relevant legal provisions given in the Indian Penal Code. Section 354 IPC makes penal the assault or use of criminal force on a women to outrage her modesty. The essential ingredients of offence under section 354 IPC are :
(a) That the assault must be on a woman;
(b) That the accused must have used criminal force on her;
(c) That the criminal force must have been used on the woman intending thereby FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 4/14 to outrage her modesty.
8. Section 323 IPC provides punishment for causing hurt voluntarily. Section 319 IPC provides the definition of 'Hurt'. It says that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
9. Section 452 IPC Provides :punishment for committing housetrespass after preparation for hurt, assault or wrongful restrain. Housetrespass is committed when someone commits criminal trespass by entering into or remaining in any building, tent or vessel used as human dwelling or any building used as a place for worship, or as a place for the custody of property. Criminal trespass requires : (a) entry into or upon property in the possession of another (b) if such entry is lawful, then unlawfully remaining upon such property(c) such entry or unlawful remaining must be with intent (i) to commit an offence, or (ii) to intimidate, insult, or annoy any person in possession of the property.
10. Section 457 IPC provides punishment for lurking housetrespass or house breaking by night in order to commit offence punishable with imprisonment. To constitute this offence, the offender must take active means to his presence, darkness helping him to conceal his presence would not suffice.
11. The testimony of PW1/ complainant Smt. Kamlesh is reproduced verbatim as below :
12. She has deposed that "on 07.02.2012, at about 9.30 pm, suddenly accused Swalin entered into her house consisting of one room forcibly without my permission and at that time i was preparing dinner. My back was towards the accused and after entering into the house, he touched my back and when i turned back accused also touched my breast. When i tried to save myself and there was a scuffle between us and accused had hit me with some object on my forehead due to which i fainted. Thereafter, i do not know what had happened. I do not know who had taken me to hospital. She has further deposed " I gained consciousness on the next day in the hospital and my statement was recorded by the IO which is Ex PW1/A bearing my signatures a point A. Prior to the incident, accused used to FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 5/14 follow me while I was going to the office and used to play vulgur songs. Accused also used to misbehave with the neighbors and once accused had misbehaved with the daughter of my sister namely Kamlesh. IO had prepared the site plan at my instance. I was medically examined at the hospital. I am having apprehension from the accused today also. Accused is present in the court today and correctly identified".
13. During cross examination, she has deposed that " I am working lady and working in a NACO, NGO at Subahadra Colony, Shashtri Nagar, Delhi. I used to go to my job at about 9:30 am and returned back at about 5:30 pm. My husband is running his own business which is 50 feet away from my house and takes about 2/ 3 minutes on foot. Kamlesh, who is my elder sister resided 25 meter away from my house and it takes about 2 minutes from her house. The premises where I am living having only one room at ground floor. Volt. It is a Jhuggi. On 7.2.2012 when i was making when Swalin entered in my house door was closed. It was closed from inside. It is correct that i had not told this fact to the police that door was closed from inside in my first statement. Volt. When police recoded my statement i was not in position to tell all the facts. Perhaps, i had told the name of father of accused as well as address to the police persons in the statement Ex. PW 1/A and the same was read over to me and there were about 50 neighbours were present at the time of recording my statement. Volt all the neighbours were standing out side but my husband, my elder sister along with police person namely Subhash were present inside the room.
14. She has further deposed that " It is correct that I had seen accused Swalin firstly when he had already entered in the room. Volt. When he touched my back ( hip) . It is correct that I had not seen accused whether he had opened the door ( KUNDI) or not. Firstly i pushed accused and thereafter raised alarm. It was about 9:30 pm. I do know about the object which was used by the accused. My statement was recorded by the police twice. It is correct i had told to the police that i was hit by the accused with a ''Danda'' in my second statement on 8.2.2012 FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 6/14 at my house at that time only my husband was present and one police person namely Subhash was also present and site plan was prepared by the the police official namely Subhash at my instance. I do not remember whether I as well my husband had signed the site plan".
15. She has further deposed that " I do not know who had called up at 100 number. It is correct that after receiving injury my clothes were soaked with the blood. It is correct that police had not seized my blood stained clothes. I do not know the name of the person whose stained clothes was taken by the police. I do not know whether he was present in the hospital or not. For the first time i was conscious in the hospital. But I do not remember the exact time. My sister namely Kamlesh is residing 10 to 15 ft from my house. My husband is running on business of rubber part and his office is situated 20 to 25 ft. from my house. It takes about 2 minutes to reach my home from my sister's house and also same time takes to reach my house from my husband office. I do not remember who reach at my house firstly on the date of incident. I became conscious in the hospital for the first time and I saw my sister there. Police recorded my statement only once. Again said one more statement was recorded when police came to my house. Police recorded my first statement in the hospital. No body was present at that time except one more police person.
16. She has further deposed that i told the fact firstly to the police. i do not remember how much time police took at the time of recording of statement. I had not signed any statement which was recorded in the hospital. Again said i do not remember. At the time of recording statement on 08.02.2012, police official, it took half an hour. I do not remember whether police had recorded statement of my sister or not at the hospital. I do not remember that police has recorded the statement of my husband and sister on 08.02.2012. I do not remember that police had called the neighbors on 08.02.2012 or not. After 08.02.2012 police had not called me in the PS. Vol. i went to the police station herself. Neither i had given any statement nor police has recorded the same. Thereafter i never went to the police FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 7/14 station. After arresting of the accused police did not called me at PS. I do not know the address of the accused. It is wrong to suggest that accused Swalin did not come to my house on the date of incident. It is also wrong to suggest that my sister namely kamlesh had stated the facts to the police person before me. It is wrong to suggest that I am deposing falsely"
17. Let us now appreciate evidence available on record in the light of aforesaid legal provisions and judicial pronouncements. Charge framed under section 354 IPC shall be dealt with first. In the Oxford English Dictionary (1933 Edition), the meaning of the word ' modesty' is given as " womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct ( in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." In the case of RAJU PANDURANG MAHALE VS. STATE OF MAHARASTRA AND ANOTHER AIR 2004 Supreme Court 1677, it was held that what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman.
18. In the present case the actions of accused and consequential reaction of complainant are such as could be perceived as one which are capable of shocking the sense of decency of the complainant. PW1/ complainant has categorically stated that at the time of incident she was preparing dinner. Her back was towards FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 8/14 the accused, who after entering the house, touched her back. When she turned back accused touched her breast. She tried to save herself from the clutches of accused then he engaged in scuffling with her. Thereafter, accused hit her forehead with some object, due to which she fainted. All these facts clearly establish that the acts of accused was intentional and amounted to outraging the modesty of complainant. It is seen that during cross examination nothing substantial could be elicited. There is no crossexamination on this aspect to rebut the complainant's claim. Rather, on the asking of Ld. Defence counsel, she has deposed that she saw the accused when she turned back on touching of her back by the accused. She has further deposed that at the time of incident, she pushed the accused and then raised the alarm. It be observed that the accused has take the plea that he has been falsely implicated but no this defence has not been put to the witness during crossexamination. Neither any question has been put nor has suggestion been given to the complainant with regard to false implication. No explanation has come as to why he would falsely be implicated without any rhym and reason. The version of complainant is further corroborated by PW3 Smt. Mithlesh and PW5 Sh. Ram Gopal, who unequivocally stated that after gaining consciousness, complainant told them that accused after entering the house, touched the back and then breast of the complainant. When she raised the alarm, accused pushed and hit her, due to which she received injuries. Again, no crossexamination has been done on this aspect from these witnesses too to rebut the claims of the complainant. The accused is therefore held guilty for the offence punishable under section 354 IPC.
19. Now dealing with charge framed under section 323 IPC, it has been argued that contradictions can be seen in the testimony of PW1/complainant. The complainant has stated in examination in chief that she got injuries on being hit by the accused by some object but in the statement given to police, she is stated to have been hit by the accused on her head with a danda. It has also been argued that non seizure of blood soaked clothes proves that complainant had never FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 9/14 received injuries. The definition of hurt appears to contemplate the causing of pain etc. by one person to another and therefore, slapping someone is also an offence under this section. In her complaint Ex PW1/A as well as examination in chief , the complainant has stated that there was scuffling while saving herself from the clutches of accused. The accused hit her due to which she became unconscious. She did not know as to what happened afterwards. She did not know as to who got her admitted in the hospital. She gained her consciousness only on the next day. It be noticed that the fact of being hit by some object or with a danda is in dispute but the fact of hitting has not been controverted during cross examination. She has deposed therein on the asking of Ld. Defence counsel that she became conscious in the hospital itself. Similarly, PW3 Smt. Kamlesh has also deposed when she reached the spot hearing screams of the complainant, she saw accused going out of the house. Complainant was lying unconscious in injured condition. She reported the matter to police through PCR call. Police officials reached at the spot on receiving information and took the complainant to Hindu Rao Hospital along with PW3 . Again, during crossexamination, nothing substantial could be elicited. On the asking of Ld. Defence counsel, PW2 has stated that when she entered the house, complainant was found unconscious in injured condition and blood was oozing out of her head. She put her shawl to stop the bleeding. She has also deposed that while sitting in PCR Van, complainant's head was lying on her lap. She has stated that some blood stains were also there on her wearing suit. The act of hitting by the accused on complainant's objections clearly proves that he did so intentionally with the motive to disprove the complainant's objection, which clearly falls within the category of simple hurt.
20. The fact of sustaining simple injuries in the hands of accused is further proved through testimony of PW5 Sh. Ram Gopal, who has deposed on the line of PW2. PW2 HC Megh Shyam, who reached the spot on receiving information from the control room, has also testified that when he reached the spot, he found the complainant in injured and unconscious condition. He took the complainant and FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 10/14 her sister PW3/ Smt. Kamlesh at Hindu Rao Hospital and got her admitted and intimated duty officer. It be observed that testimony of PW2 has remained unrebutted and unchallenged for want of crossexamination. PW8 HC Raj Kumar corroborates the version of PW2. He has testified that injured/complainant was admitted in the hospital . He had requested the concerned doctor to prepare the MLC of injured. The factum of simple Injuries being caused is further proved through testimonies of PWs12 Dr. Dharmendra Kumar, CMO, HRH, who had prepared MLC of complainant vide Ex PW9/A and opined the nature of injuries as simple and PW13 Sh. Joginder Kumar, Record Clerk, HRH, Delhi, has identified the handwritings and signatures of Dr. Tarun Kumar in MLC ExPW9/A. Perusal of MLC Ex PW9/A discloses alleged history of assault, diffuse swelling and bleeding wound over forehead, lacerated wound of size 3*1cm and patient being unconscious. The MLC also discloses the endorsement made as unfit for statement. All these facts collectively make clear that the complainant had received simple injuries on account of having been hit by the accused. The failure of IO to seize blood stained clothes does not go to the root of the case when plethora of other evidences are available on record. The accused is held guilty also for the offence punishable under section323 IPC
21. Now coming to offence under section 452 IPC, it be observed that PW1/complainant in complaint Ex PW1/A as well as examination in chief has unequivocally stated that on 07.02.2012, at about 9.30 pm, accused Swalin had forcibly entered into her house consisting of one room without her permission. At that time, she was preparing dinner. She has further deposed that her back was towards the accused. She realized the presence of accused when he touched her back as well as breast. No infirmity or inconsistency has been found on the materials particulars in both the statement. So far as argument on the aspect of presence of accused inside the room is concerned, It be observed that during crossexamination , PW1/complainant has stated that she saw the accused firstly when he was already present in the house and she had not seen whether the FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 11/14 accused had opened the door or not. In this regard, the court is of the view that unawareness of complainant as to how accused entered the house is of no avail. She has clearly stated that at that time she was preparing dinner and her back was towards the accused. In such circumstances, it may not have been possible to learn about the accused's entry inside the house. Though she has stated that she did not see the accused opening the door but she has also not stated that the door was bolted from inside and anyone's entry inside the house was not possible without the door being opened from inside. It may have been that the door was just closed without being bolted and therefore, could have been opened by anyone even from outside.
22. The presence of accused is proved even through the testimony of PW3/ Smt. Kamlesh, who has stated that when she reached the spot, she saw accused going out of the house. This fact has not been controverted during crossexamination. PW9 HC Subhash had prepared site plan Ex PW9/C at the instance of PW1/complainant. In site plan Ex PW9/C the place of occurrence has been shown inside the house but neither relevant question has been put nor has suggestion been given to disprove the same to either PW1 or PW9 and therefore, deemed to have been proved. In the given facts and circumstances, the court is of the view that no material has been placed on record to prove that the accused had entered the house after preparation for hurt , assault or wrongful restraint. This fact of entering the house after preparation is negated from the testimony of PW1 itself. She has nowhere stated in her examination in chief that the accused had come with some weapon to assault her rather, she has stated that the accused had hit her with some object. It is not clear from her testimony that the accused had brought that object along with him. On the contrary, the specification or identification of said object has also not been made by the complainant. It is also noticeable that in her supplementary statement recorded under 161 CrPC, she has made improvement and mentioned the object as Danda. In view the given facts and circumstances, the factum of causing hurt or assault after preparation is FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 12/14 negated. However, the accused is liable for the offence publishable under section 451 IPC in view of facts and circumstances , which prescribes punishment for committing housetrespass in order to the committing of offence of hurt and outraging the modesty of complainant.
23. Now coming to offence under section 457 IPC, in the present case there is nothing to show that the accused took any precautions to conceal his acts of trespass. To constitute the offence of lurking housetrespass by night, the offender must take active means to conceal his presence, darkness helping him to conceal his presence would not suffice. In the present case, the entry of the accused at the complainant's house during night in order to outrage the modesty of complainant and there being nothing to show that he took precautions to conceal his acts of housetrespass, he should not be held guilty under this section but only under section 451 IPC( Reference may be had to Jasdeep Singh, (1952)2 Raj 745, Ganakanka Das Vs. State of Assam,1990 CrLJ 219) . Accordingly , accused is acquitted from the charge framed under section 457 IPC
24. Non joinder of public witnesses in the present case has been cited as another infirmity. In this regard, the court is of the view that it is a matter of common understanding that people generally do not come forward to join the investigation of the police case as they do not want to get themselves entangled in police cases. The testimony of PW3/ Smt. Kamlesh and PW5/ Sh. Ram Gopal can not be rejected completely merely because they are close relative of the complainant. It is well settled that the sole testimony of the complainant and interested witnesses can also be relied upon to secure the conviction of the accused provided that same is found credible. In the present case also, despite certain discrepancies, the testimonies of PW3 & 5 have remained consistent on many material particulars.
25. It be observed that the plea of false implication has not been proved either during crossexamination or by leading evidence. It be further observed that during cross examination, no question has been put to PW1 to discredit her credence. The accused has failed to lead evidence to prove her plea of false FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 13/14 implication and being innocent. In fact, accused has not explained as to why he would be implicated falsely by the complainant. The matter was reported to police immediately after the incident through a PCR call. PW2 HC Megh Shaym on receiving said information reached the spot and inquired into the matter. He took the complainant in injured and unconscious condition to Hindu Rao Hospital, got her admitted and informed Duty Ct. HC Raj Kumar, who testified as PW8 . PW7/ Ct. Mahipal, DD Writer had received the PCR call regarding the incident at Jhuggi No. 320, behind Gupta Complex. The information was recorded by him vide DD No. 31 exhibited as Ex PW7/A. PW9 HC Subhash Chand had conducted investigation into the case. He kept the DD Entry pending as complainant was unfit for statement. On the next day after discharge of the complainant, he went and inquired into the matter. Thereafter, on the basis of statement of complainant, prepared rukka Ex PW9/C and got the case registered through Ct. Shiv Raj/PW4. So, it is apparent from the record that the matter was reported to the police and case was registered at the earliest without there being unwarranted delay and therefore, the possibility of false implication of accused is ruled out.
26. It be observed that certain contradictions have appeared in the testimonies of material prosecution witnesses but the same in the opinion of the court is not sufficient to discard entire case of the prosecution and are bound to occur with the passage of time.
27. In view of the aforesaid background, the defence's failure to prove the innocence of accuse is explicit and hence he is convicted in FIR No.55/12 PS: S. Rohilla under section 323/354/451 IPC but acquitted under section 457 IPC.
28. Put for quantum of sentence.
Announced in the open court on
19.11.2014. (Mona Tardi Kerketta)
MM02/Mahila Court
Tis Hazari Courts, Delhi
FIR No. 55/12 PS. Sarai Rohilla State Vs. Swalin 14/14