Delhi District Court
State vs . Beer Singh Etc. on 26 April, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. Beer Singh etc.
FIR No. 35/01
P.S. : Mehrauli
U/S 451/354/506/34 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 27.11.2001
2. SERIAL NUMBER OF THE CASE : 260/2
3. DATE OF COMMISSION OF OFFENCE : 13.01.2001
4. NAME OF THE COMPLAINANT :Ms. Varisa @ Varsha w/o Sh. Sahid
5. NAME OF THE ACCUSED & ADDRESS : 1. Beer Singh s/o
Gyasi Ram
R/o House no. 177,
Fatehpur Beri, Mehrauli
New Delhi.
2. Surender @ Sunder
s/o Pitam R/o Vill.
Bahrana, P.S.
Sikandrabad, Distt.
Bulandsahar, U.P.
6. OFFENCE COMPLAINED OF :U/S 451/354/506/34 IPC
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli
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7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
8. DATE OF RESERVE OF JUDGMENT : 17.03.2012
9. THE FINAL JUDGMENT : Convicted
10. THE DATE OF FINAL JUDGMENT :26.04.2012
BRIEF REASONS FOR DECISION OF CASE:
1. The case of the prosecution is that the on 13.01.2001 at about 04.30 p.m. at main road Village Fatehpur Beri, Chandan Haula, Mehrauli, New Delhi, both accused namely Beer Singh and Surender @ Sundar in furtherance of their common intention wrongfully restrained complainant Varisha @ Varsha w/o Sh. Shahid by voluntarily obstructing her way so as to prevent her for proceeding in a direction. Further both the accused also assaulted and used criminal force upon the complainant with an intention to outrage her modesty and also extended threat to her life. The FIR was registered on the complaint of the complainant against the accused persons Beer Singh and Surender @ Sunder and investigation was carried out.
2. Charge sheet under Section 341/354/506/34 IPC was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 19.04.2002 charge/notice for offence under Section 451/354/506/34 IPC was served upon accused, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined seven witnesses and the St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 3 prosecution evidence was closed vide order dated 27.05.2011.
4. PW1 complainant Varisa @ Varsha w/o Sh. Sahid deposed that she is illiterate and she does not know the date of incident. About 1 and ½ year back she was coming back from her parents house along with her husband along with her two younger daughters were coming on two wheeler in the evening at about 04.00 p.m. She was going to her matrimonial home from her parents house. They stopped the scooter on the way for purchasing vegetables. She was standing near her scooter along with her two daughters. The Tata sumo was parked on the road. Her husband parked the scooter behind the Tata sumo. The two accused persons were sitting in the Tata sumo. Both the accused persons started making gestures towards her. She turned her back to the Tata sumo. The accused persons were blinking their eyes towards her. Her daughter went to purchase popcorn. She went to bring back her daughter and went passed through Tata sumo. Both the accused persons, present in the court caught hold of her hand when she reached near their Tata sumo. She was dragged inside the Tata Sumo by both the accused person. Both the accused person made her lay on their foot and started pressing her breast. When she tried to raise the alarm, both the accused persons showed her a knife like sharp object and threatened to kill her if she raised alarm. On hearing her alarm, her husband and the public persons reached at the spot. Public persons criticized the accused persons. The accused persons said that they thought that she is a prostitute, and they are involved in several such acts. They challenged her that she can make complaint to any authority but nothing will happen to them. In the incident, she lost her one gold ear ring and one gold chain. The same were taken by the accused persons during the scuffle. Both the accused persons very badly hugged her. When her husband inquired from the accused St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 4 persons for their act, both the accused persons slapped her husband. On seeing this, she raised alarm. Both the accused persons pushed her as a result of which she fell near front wheel of Tata Sumo. She told accused persons that she will lodge complaint against them. Both the accused persons threatened to kill her if she will depose against them in the court. On the date of hearing, they called the police. Both the accused persons escaped from the spot. She lodged her complaint which is Ex. PW1/A and bears her signature at point A. She never identified the accused persons in the police station. She only lodged the complaint in the police station on the day of incident. Thereafter, Ld. APP sought permission to cross examine the witness regarding her statement dated 16.01.2001. In her crossexamination by Ld. APP she deposed that she had only shown the accused persons to the police at the spot. She never identified them in the police station. She correctly identified both the accused persons in the court. Her statement dated 16.01.2001 is Mark A is denied by her. The police came to their house but her husband never accompanied them to police station. The police apprehended the accused persons on the date of incident in her presence away from the spot. In her crossexamination conducted by Ld. defence counsel, she deposed that she had studied upto 4th class. She can only identify the numbers of the vehicle written in Hindi and not in English. She remained at the spot of occurrence from 04.00 p.m. to 06.30 p.m. Thereafter she went to the police station where her statement was recorded. She admitted as correct that the incident took place in the market and people were present over there. The police had inquired from the shopkeepers, tempo drivers and the taxi stand drivers about the incident. But their statement was not recorded by the police. She does not know the number of scooter upon which she along with her husband came at the spot. Her statement has not been recorded by the police regarding this case even on single occasion. She did not read St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 5 her statement before signing it and the police had only obtained her signatures. She does not know whether any taxi stand is situated near the spot of occurrence. She denied the suggestion that there is any taxi stand at the spot and other taxis were also standing there including some white sumos. The number of the white sumo was noted down only by the police officials and the public person present there. The police was called by her. She had not told on telephone the alleged incident to the police official. She did not tell the police any time about the incident. She admitted as correct that whenever she came in the court premises, she had seen the accused present in the court outside the court room and she did not come to the court only on one day of hearing. The word white means Safed. She admitted as correct that she told the police in her statement that when the accused persons made gestures towards her then she turned her back towards them which she has she has deposed in her chief. Thereafter witness was confronted with statement Ex. PW1/A, where this fact is not recorded. She admitted as correct that she had stated to the police in her complaint that when she tried to raise alarm both accused persons showed her a knife like sharp object and threatened to kill her if she raise alarm which she deposed. Thereafter witness was confronted with statement Ex. PW1/A where this fact is not so recorded. However, extended threat while going is recorded. She did not tell the police in her statement that the public persons criticized the accused for their act which she has deposed. She admitted as correct that she did not tell the police about the fact that on being criticized by the public persons the accused said that they thought that she is a prostitute and they are involved in several such acts which she has deposed. She admitted as correct that she had stated to the police that when she asked the accused persons to make a complaint against them they challenged her that she may do whatever she can and nothing will happen to them.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 6 Thereafter witness was confronted with statement Ex. PW1/A where this fact is not so recorded. She admitted as correct that she did not tell the police the fact that she lost her one gold ear ring and one gold chain during the scuffle which she has deposed in the court. She does not know whether she ahd told the police that both the accused persons hurt her very badly which she has deposed in her examination in chief. She admitted as correct that she had stated to the police in her statement the fact that when her husband inquired from the accused persons of their act, both the accused persons slapped her husband. Thereafter witness was confronted with statement Ex. PW1/A where this this is not so recorded. She admitted as correct that she had stated to the police the fact that when she raised alarm and shouted both the accused pushed her near the front wheel of Tata Sumo which she had deposed in her examination in chief. Thereafter witness was confronted with statement Ex. PW1/A where this fact is not recorded. She did not lodge any complainant regarding the fact that the accused persons are stating extended threat to them while on the way to attend the court on the date of hearing prior from today. The police of Police Station Mehrauli reached at the spot within half an hour of the occurrence. She cannot tell the name of police personnel who reached at the spot. She admitted as correct that she did not know the accused persons prior to the incident nor the names and address of the accused persons before the incident. Nor the names and addresses were known to her husband. She admitted as correct that persons from her vill. Chandan Hulla were later on called by her husband at the spot of occurrence but she does not know their names. Some persons from the family of the accused persons slapped the accused persons and asked them to apologize before her and thereafter they sent the accused persons from the spot. She admitted that one village panchayat was organized at the residence of the accused persons, accused persons came in St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 7 the panchayat but did not apologize before her husband. The police visited her house only once to serve the summons except this the police did come to her house. She denied the suggestion that accused persons present in the court did not make gestures towards her or did not pressed her breast or did not misbehave with her. She denied the suggestion that some other taxi drivers misbehaved with her, made gestures towards her and pressed her breast and ran away. Later on when the police arrived the accused persons were falsely implicated in this case. She voluntarily stated that it is only the accused persons who misbehaved with her and did the above mentioned act and were present at the spot. She denied the suggestion that no such incident had taken place and only a quarrel took place between her husband and taxi driver that is why she had only informed the police on telephone about the occurring of a quarrel. She voluntarily stated that she can tell on oath of her children that the accused persons who are present in the court misbehaved with her and did the above mentioned act. She did not tell the police the number of scooter upon which she and her husband reached the spot. She voluntarily stated that police might have taken the number of the scooter themselves. She denied the suggestion that after the occurrence of the quarrel between her husband and some taxi drivers the people from her village and the people from village Fatehpur Beri started quarelling with each other and during that the people of her village told the people of Fatehpur Beri that they will take a revenge from them. She denied the suggestion that only because of that revenge the accused persons have been falsely implicated in this case.
5. PW2 Shahid deposed that she along with his wife and children were coming on two wheeler scooter and were returning from her in laws house. She does not know the date of St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 8 incident as he is illiterate. He stopped his two wheeler scooter in Fatehpur market for purchasing vegetables. His wife was standing near two wheeler scooter. One of her daughter who was accompanying him was crying and he was helping her to eat coloured sweet snow hall. He saw that the accused persons who are present in the court pushed his wife inside the Tata Sumo. When he inquired from the accused persons as to why they did so, they replied that they are Dada of the area. On hearing the alarm of his wife, he went to the spot to help her to rescue his wife. The accused persons slapped her have fist and leg blow and threatened him before running from the spot. On person name Bharam Singh Tawar MLA told him the address of the accused persons and he went to the house of the accused persons. The elders of the accused persons family asked him to compromise for Rs. 20000/. the elder brother and father of accused Beer Singh asked him to compromise for Rs. 20000/. He refused for compromise. Both the accused persons were arrested by the police later on. Both the accused persons did "chedkani' with his wife and they also gave him beatings and his wife also slapped by the accused persons. The Tata Sumo was of white colour. In his crossexamination, he deposed that he cannot tell the number of Tata Sumo in which the accused persons fled away. No Tata Sumo was recovered or seized by the police in his presence. The police made investigation from him and his statement was recorded at his house. He does not remember the date of recording of his statement by the police. No other proceedings were conducted by the police, on the day when his statement was recorded. Whatever he has deposed earlier before the court, the same he has deposed before the police. He admitted as correct that he has stated before the police that he saw the accused persons pushed his wife inside the Tata Sumo. Thereafter witness was confronted with statement Mark Ex. PW2/DA where this fact is not do recorded. He has also stated before the St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 9 police that when he enquired from the accused persons why they did so, they replied that they are Dada of the area. Thereafter witness was again confronted with statement Mark Ex. PW2/DA where this fact is not so recorded. He had not stated before the police that he was given beatings by the accused persons by fist and leg blows. He had not stated before the police that Sh. Braham Singh, MLA told him the address of both the accused persons. He had never visited the house of accused persons but father and other family members of accused Beer Singh came to his house for compromise. He had not stated before the police that elders of the accused persons asked him to compromise for Rs. 20,000/. He had also not stated before the police that elder brother and father of accused Beer Singh asked him to compromise for Rs. 20,000/. There are only two shops near the spot. Police did not reach on the day of incident at the spot in his presence. They stayed for 20 minutes at the spot after the alleged incident. About 10 members of his family arrived on the spot. On that day no other incident of quarrel took place in village Fatehpur Beri. No quarrel took place among him and the present accused persons and their family members after the said incident. No quarrel ever took place among her family members and the accused persons. He admitted as correct that the accused persons were not known to him prior to the incident.
6. PW3 HC AfrozulIslam was the Duty Officer. He deposed that on the day of incident he received a rukka through Const. Ram Rattan sent by SI Rajneesh Kumar. He further deposed that on the basis of rukka he registered the present FIR. He produced the original copy of FIR in the court which has been exhibited as PW3/A and his endorsement on rukka is Ex. PW3/B. No crossexamination was conducted by accused as he was a formal witness.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 10
7. PW3A HC Harpal Singh deposed that on 16.01.2001, he was posted at P.S. Mehrauli as Constable. One case vide FIR no. 35/01, U/s 341/354/506/34 IPC, P.S. Mehrauli was pending. He along with Const. Ram Rattan had joined the investigation of FIR no. 35/01 with SI Rajnish Kumar. The husband of the complainant namely Shahid was along with them. They reached at house no. 177, Village Fatehpur Beri, P.S. Mehrauli in search of the accused. Shahid pointed out towards two boys who were standing outside house no. 177 as they had tried to outrage the modesty of Smt. Varisha. Both the accused persons whose names were disclosed as Beer Singh s/o Gyasi Ram and Surender @ Sunder s/o Pitam were arrested vide arrest memo Ex. PW4/A and PW4/B respectively which bears his signature at point B. He correctly identified both the accused persons in the court. Their personal search memos are Ex. PW4/D and PW4/C respectively, also bears his signatures at point B. Both the accused persons were brought at the police station Mehrauli where the complainant Smt. Varisha was already present who had identified both the accused persons correctly. In his crossexamination he deposed that both the accused persons were arrested on 16.01.2001, in the present case. Both the accused persons were not arrested in any other case in his presence on that day. He denied the suggestion that Shahid, husband of Smt. Varisha was not present at the time of arrest of both the accused persons. He admitted as correct that Ex. PW4/A and PW4/B does not bear the signatures of Shahid. He voluntarily stated that his name and address is mentioned at point C. Same may be his signatures. He admitted as correct that Ex. PW4/D and PW4/C does not bear the signatures of Shahid. He voluntarily stated that his name and address is mentioned at point C, same may be his signatures. He does not remember whether the accused persons had told the registration number of white St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 11 colored Sumo car to SI Rajnish. No white colored Sumo car was got recovered from the possession of the accused persons in his presence on 16.01.2001. He denied the suggestion that both the accused persons had surrendered at their own at the police station in a kalandara u/s 107/151 Cr.P.C. He denied the suggestion that thereafter the accused persons were falsely implicated in the present case.
8. PW4 Const. Ram Rattan deposed that on 13.01.2001 he was posted at Police Station Mehrauli. On that day he was on emergency duty along with SI Rajneesh Kumar from 08.00 a.m. to 08.00 p.m. On receipt of DD no. 27A regarding quarrel was received and on receipt of same he along with SI Rajnish Kumar reached i.e. Main Road near Fatehpur Beri at about 05.15 p.m. Where complainant Varisa along with her husband met them. IO recorded her statement and prepared rukka and got the present case FIR registered through him. Then they went out for the search of the accused persons but they could not found them. On 16.01.2001 he along with Const. Harpal and SI Rajneesh Kumar went to Kadak Village at the house of Shahid, husband of the complainant, who also joined investigation with them. Then they went to Fatehpur Beri, House no. 177, for the search of the accused persons where two boys namely Beer Singh and Sureinder were present whose name were revealed on interrogation and Shahid also pointed out towards them while stating that they are the persons who committed the offence on 13.01.2001. They were interrogated by the IO. Both were arrested vide arrest memo Ex. PW4/A and PW4/B. Both memos bears his signatures at point A and their personal search was conducted vide memo Ex. PW4/C and PW4/D. He also correctly identified both the accused persons in the court. The information was given about their arrest to their family members. His statement was recorded on both occasions by IO.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 12 No crossexamination by conducted by accused persons.
9. PW5 HC Narender Kumar deposed that DD no. 7B dated 13.01.2001 has been destroyed by the order of ACP, South Distt and he duly proved the copy of order as Ex. PW5/A. In his crossexamination, he deposed that he was on duty in Police station Mehrauli on 13.01.2001 but he cannot say whether he was doing the duty at the Roznamcha or not. He can only tell this after seeing the Roznamcha. He cannot tell anything about the DD no. 7B dated 13.01.2001. He cannot say anything without seeing the Roznamcha whether DD no. 7B dated 13.01.2001 is having any concern with this case or not. He cannot tell say anything whether any DD no. 27B regarding a quarrel at Fatehpur Beri Main Road was received in the police station or not on 13.01.2001. He cannot tell to whom the said DD no. 7B was marked for investigation.
10. PW6 SI Rajnish Kumar deposed that on 13.01.2001 on receipt of DD no. 27B he along with Const. Ram Rattan reached at Fatehpur Beri. There complainant Varisha and her husband met them. She got recorded her statement. He made endorsement on her statement and sent Const. Ram Rattan to police station for registration of FIR. He prepared site plan Ex. PW6/A at the pointing out of the complainant, signed by him at point X. He made enquiry from her husband also. Meanwhile Const. Ram Rattan came back at site along with copy of FIR and rukka and handed over to him. He recorded the statement of husband of complainant and made further investigation in the nearby places. He recorded the statement of Const. Ram Rattan. Thereafter they came back at police station after relieving the complainant and her husband. On 16.01.2001 he along with Const. Harpal and Ram Rattan St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 13 and husband of complainant, he apprehended both the accused in front of the house no. 177, Fatehpur Beri on the pointing out of the husband of the complainant. The accused Beer Singh was arrested vide memo Ex. PW6/B signed by him at point X, his personal search was conducted vide memo Ex. PW6/C signed by him at point X. The accused Surender was arrested vide memo Ex. PW6/D signed by him at point X, his personal search was conducted vide memo Ex. PW6/E, signed by him at point X. Thereafter he recorded the statement of witnesses. Thereafter they reached to police station. There the complainant was already present and she had identified both the accused. He identified both the accused persons in the court. Accused persons were produced before the court on same day and they were granted bail by the court. In his crossexamination he deposed that DD no. 27B was received at about 4.45 p.m. in the police station. He along with Const. Ram Rattan at the spot at about 05.00 p.m. He remained at the spot for about 2 hours. Const. Ram Rattan was sent to police station for registration of FIR along with rukka at 05.45 p.m. He came back at the spot in about one hour. The complainant did not tell in her statement whether she knows the accused persons prior to the incident or not. Her husband also did not tell in his statement whether he knows the accused persons prior to the incident or not. The complainant has stated in her statement that her husband was also present on the spot at the time of incident. He denied the suggestion that accused persons have not committed any offence on that day. The statement of the complainant and her husband was recorded on the spot itself. Statement of Const. Ram Rattan was also recorded on the same day in the police station. He denied the suggestion that the husband of the complainant had not joined the investigation and was not accompanying them at the time of arrest of accused persons. Thereafter arrest memos Ex. PW6/B, PW6/D and personal search memo Ex. PW6/C and PW6/E of both the St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 14 accused persons were shown to the witness and questioned that since the husband of the complainant was not joined in the investigation at the time of arrest of accused persons that is why arrest memos and personal search memos of accused persons did not contain his signatures. He denied the suggestion that all the documentary work was conducted by him at the police station on both the day i.e. 13.01.2001 and 16.01.2001. He further denied the suggestion that the accused persons along with some respectable persons of the society were called in the police station for compromise talks where the accused persons were falsely arrested and implicated in this case. No vehicle was seized in this case. No application for TIP of the accused persons were moved by him in the Hon'ble Court. Neither the Sumo Car or a scooter was seized by him in this case. He admitted as correct that place of incident is a busy market where number of customers, shopkeepers and passerby were present. He did not record the statement of any independent witness in this case as none was ready to give any statement. He did not initiate any action u/s 187 Cr.P.C. or any other legal action against those independent persons who refused to give their statements. The details and numbers of the Sumo car was not given by the complainant or her husband, therefore, he did not make any inquiry from the Transport Authority about the ownership of the said Sumo Car. He denied the suggestion that the persons who have committed the alleged offence ran away in that Sumo Car and the accused persons were not among them. He further denied the suggestion that accused persons were arrested and falsely implicated in Kalandra u/s 107/151 Cr.P.C. The said kalandara was prepared on the complaint of the police officials against the accused persons and there was no complaint from any public person. The accused persons were arrested in a same DD entry in both the cases i.e. the present case FIR no. 35/01 as well as Kalandara u/s 107/151 Cr.P.c. He cannot tell the DD number of the Kalandara. He St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 15 was the IO in the present case FIR no. 35/01 as well as Kalandara U/s 107/151 Cr.P.C. He cannot tell the fate of the Kalandara u/s 107/151 Cr.P.C. initiated against the accused persons. He denied the suggestion that first of all the accused persons were falsely arrested and implicated in the Kalandra u/s 107/151 Cr.P.C. on 16.01.2001 and later on to work out the present FIR, the accused persons were falsely implicated and arrested in this case. The number of scooter was mentioned/stated by the complainant in her statement but he did not make any effort to enquire about the ownership of the said scooter as it was not essential. He cannot tell the number of said scooter. He did not enquire as to whom the house no. 177, Fatehpur Beri belongs nor he recorded any statement of the occupants of the said house. Statement of one public witness was recorded at the time of arrest of accused persons whose name is mentioned in it but he does not remember his name. He does not remember whether the said public witness has been cited as a witness in this case or not. The statement was read over to the complainant prior to obtaining her signatures. The supplementary statement of complainant was recorded regarding the identification of the accused persons in the police station on 16.01.2001. In his statement given by the husband of the complainant he has stated that he can identify the accused persons if produced before him. He denied the suggestion that he is deposing falsely.
11. The statement of accused persons was recorded u/s 281 Cr.P.C., in which they denied all the allegations leveled against them and stated that they have been falsely implicated in the present case. The accused persons has produced two witnesses in their defence.
12. DW1 Shyambir deposed that he know the accused Beer Singh and Surender. They live St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 16 in the same village Fatehpur Beri. The incident happened on 13.01.2001 around 04.30 p.m. in the evening. He was at the tempo stand at the time of incident with Beer Singh, Surender with one more person. He heard the noise and thereafter, they reached at the spot. They came to know that some quarrel was taken place at the spot regarding misbehavior with the lady. On 15.01.2001 police official reached at the tempo stand and instructed them to reach at police station on 16.01.2001. They reached at police station on 16.01.2001. There SHO P.S. Mehrauli said that they had not make some enqiury as the matter belong to religions. One lady was also present in the police station stating that the same boys had come in Sumo. Thereafter he was allowed to leave the police station but the accused persons remained at the police station. In his crossexamination, he deposed that today he has come to the court alone. The accused Beer Singh told him to appear in the court. He had to go with tempo as and when required. The accused Beer Singh was driver of the tempo and accused Surender was learning to drive. He has not seen the incident. When he reached at the spot the offenders were already ran away. He has told to the police that the accused persons were with him at the time of incident. After about two days it came to know that the accused persons have implicated in the present case. He had not made any complaint before any authority that the accused persons were falsely implicated. He denied the suggestion that he is deposing falsely to save the accused persons as they are living in his village. He further denied the suggestion that he cannot say as to whether the accused persons had committed the offence in the present case or not as he has not seen the incident.
13. DW2 Prem Singh, deposed that the incident happened in the year 2001 around 04.30 to 05.00 p.m. He was in the market when this incident took place. He was alone at that time.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 17 When he reached at the spot the quarrel had already taken place. He does not know what quarrel had taken place. He heard only the voices that the person with whom the quarrel took place ran away from the spot. On the next day it came to know that FIR has been registered against the accused persons. In his crossexamination, he deposed that accused Beer Singh had told him about the present case. He has come to the court alone. The accused Beer Singh told him about the date of hearing of the case. He has not seen the incident. He cannot tell between whom the quarrel had taken place. He admitted as correct that he is not an eye witness of the incident.
14. I have heard the Ld. APP for State and Ld. counsel for accused and carefully perused the material on record. It is argued by Ld. APP for State that sufficient material is on record to convict the accused. On the other hand it is argued by counsel for accused persons that prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Therefore, it is contended by the counsel for the accused persons that the accused persons are entitled to be acquitted.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
15. It is argued by Ld. APP that the testimony of the complainant corroborated by the evidence of her husband bring home the guilt of the accused beyond reasonable doubt. On the other hand, the Ld. Counsel for the accused has argued vehemently for acquittal of the accused on account of the failure of the police to conduct TIP despite the accused being not previously known to the complainant and her husband. It is stated that the identification of the St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 18 accused persons by the prosecutrix and her husband first time in the court cannot be relied upon. It is argued that the accused persons had been falsely implicated in the present case after calling them in the police station. Secondly, it is argued by the counsel for the accused that the inconsistencies between the evidence of the prosecutrix and her husband cast clouds on the prosecution case and the accused are entitled to be acquitted also on this score. Thirdly, the complainant has made substantial improvements in her sworn testimony and therefore, she is not reliable.
16. I have bestowed my careful consideration to the rival submissions and the evidence placed on record. I do not agree with the arguments canvassed by the defence before me. There is no iron cast formula that identification of the accused for the first time in the court cannot be relied upon if no test identification parade was conducted during investigation, in case the accused are not known to the prosecution witnesses. It depends on facts and circumstances on each case. It is well settled that failure to hold test identification, which should be held within reasonable despatch, does not make the evidence of identification in court in admissible rather the same is very much admissible in law. Ordinarily, identification of the accused for the first time in the court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. Apart from the ordinary rule stated herein above, certain exceptions to the same have been carved out where identification of an accused for the first time in the court without their being any corroboration whatsoever can form the sole basis for his conviction. In Budh Sen & Anr. v. State of UP (1912) 4 SCC 733: "There may, however, be exceptions to this general rule, when for St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 19 example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration.
In State of Maharashtra v Sukhdev Singh & Anr. it was laid down that if a witness had any particular reason to remember about the identity of an accused, in that event, the case can be brought under the exception and upon solitary evidence of identification of an accused in the court for the first time, conviction can be based.
17. It be noted that the identification of an accused by a witness in court is a substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and same can be used only to corroborate identification of accused by a witness in the court. Looking at the evidence of prosecutrix PW1 & PW2 her husband in light of the above said position of law, it be seen that the present case is not where the prosecutrix and her husband only had fleeting glimpse of accused persons. The incident in question happened in broad day light at 4.00 pm. The prosecutrix, PW1 in her cross examination also stated that after the incident some family members of accused persons came to the spot along with the accused persons and slapped the accused persons and asked them to apologize before her and thereafter, they sent the accused persons away from the spot. This clearly establishes that the complainant had sufficient time to see the accused persons. She not only correctly identified the accused persons in the court but also made affirmative statement that it were only the accused persons who misbehaved with her and they were present at the spot and she can say that after taking oath of her children. The husband of the prosecutrix had also correctly identified the accused in the court. In view of the same, I have no reasons to doubt the identification of the accused persons by the St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 20 prosecutrix and her husband in the court and this identification cannot be rejected only because of failure of the police to conduct TIP.
18. As far as the other arguments of the accused regarding the improvements made by the prosecutrix in her evidence, it is settled principle of law that the maxim "falsus in uno falsus in omni bus" (false in one thing, false in everything) has no application in India.
19. Here it shall be worthwhile to refer to observations made by Hon'ble Apex Court In Krishna Mochi vs. State of Bihar 2002 AIR (SC) 1965:
"The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh, 1972(3) SCC 751 and Ugar Ahir and Ors. v. The State of Bihar, AIR 1965 SC 277".
20. In the present case the prosecutrix is an illiterate witness. Her entire testimony cannot St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 21 be thrown out due to some embellishment made by her in her evidence and in order to decide her credibility, her entire sworn testimony has to be considered. It is also pertinent to note that when the complainant was confronted with her complaint made to the police in order to contradict her on improvements made in her evidence, she categorically stated that she had not read her statement before signing it and the police had only obtained her signatures. Thus, she had given plausible reasons for the omissions made by her in her original complainant. Further, as regard the discrepancy in the place of incident in her complaint and in her evidence, the complainant has clearly stated that she signed her original complaint made to the police without reading it and thereby explained the discrepancy. Her evidence also stands duly corroborated by the evidence of her husband who also stated that the accused persons misbehaved with the complainant after dragging her in the car. After going through entire evidence of complainant, I am of the considered opinion that being a rustic and illiterate witness the improvements made by her at the time of giving her testimony i.e. after three years of the incident is natural and does not corrode her credibility.
21. As far as inconsistencies between the evidence of prosecutrix and her husband, alleged by the defence, I do not find any material inconsistencies in the evidence of two. Both the prosecutrix (PW1) and PW2 her husband have consistently deposed regarding the incident and the role of the accused person. The unequivocal identification of the accused by the prosecutrix PW1 while being subjected to cross examination has further strengthened the case of the prosecution. It be noted that in the present case the witnesses are illiterate rustic witness and were subjected to lengthy cross examination by the skillful cross examiner. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalanced and, St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 22 therefore, minor discrepancies have to be ignored. The discrepancies pointed out by the counsel for accused persons are at best minor discrepancies which do not go to the root of the prosecution case.
22. It is also argued by the counsel for the accused that there is inconsistencies between the statement of PW1 & PW2 and the police witnesses regarding the date of arrest. This also cast doubt on the prosecution case a and involvement the accused person. The complainant PW1 in her evidence has clearly stated that she never made any statement dated 16.01.2001 witnessing the arrest of accused on 16.01.2001. She has clearly stated that the police apprehended the accused persons on the date of incident in her presence away from the spot. The PW2, her husband, has also not stated in his evidence that the police arrested the accused persons on 16.01.2001 after he identified them and only stated that the accused were arrested by the police later on. Thus, there is consistent statement coming from the complainant and her husband regarding the arrest of accused and any discrepancy in statement of public witness and formal witness regarding the time of arrest is not material contradiction.
23. As regards the plea of false implication, it be noted that accused has taken varied defences in the evidence which are irreconcilable in nature. In the cross examination of the complainant, firstly the suggestion was put to the complainant that some other taxi drivers misbehaved with her and later on when the police arrived, the accused persons were falsely implicated in the present case. In the same breath, another suggestion was made to the complainant that no incident of misbehavior had taken place with her and only quarrel took St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 23 place between her husband and taxi driver. Later, another suggestion was put to the complainant that there was quarrel between her husband and taxi driver pursuant to which the people from her village and the people from the village Fatehpur Beri started quarreling with each other and out of revenge the accused persons were implicated to settle scores with villagers of Fateh Pur Beri. Thus, the accused first accepted in their suggestion that some persons misbehaved with the complainant but in the very next suggestion they denied any occurrence of misbehavior with the complainant on the day of incident. The defence has miserably failed to prove any motive of false implication. Only the feeble defence has been taken that the accused persons were falsely implicated as they belong to village Fatehpurberi, and there was quarrel between the people belonging to village of complainant and people of village Fatehpur beri on the date on incident. However, the defence completely failed to pinpoint any reason for false implication of these very accused persons. The village Fatehpur Beri is inhabited by many villagers and it remains unexplained from defence side why the complainant only opted to falsely implicate accused person and no other inhabitant of village Fatehpur Beri.
24. The inconsistent suggestions were also put to the formal witnesses by the defence. While cross examining PW3 it was put to him in suggestion during his cross examination that the accused surrendered at their own at PS Mehrauli in a Kalandra u/s 107/151 Cr.P.C. and thereafter they were falsely implicated in the present case. On the other hand, the suggestion was put to the IO that accused persons were arrested and falsely implicated in a Kalandra u/s 107/151 Cr.P.C. Thus, the accused again retracted from the earlier suggestion that the accused person voluntarily surrendered in the Kalandra proceedings. Thereafter, interestingly, St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 24 the new defence was portrayed at the time of examination of defence witnesses. During the evidence of defence witness, it was claimed that the accused were called for an inquiry one day in the police station regarding the incident even though they were not even present at the time of incident, and were later implicated in the present case. Thus, on one hand plea of voluntary surrender was taken and on the other hand it has been stated that the accused were implicated in false case after calling them in PS. The IO in the present case has specially stated that the accused were arrested in the present case as well as in a Kalandra proceedings in the same DD entry made by the complainant. Even the accused during the evidence of complainant in their own suggestion admitted quarrel having taken place on the day of incident and voluntary surrender of accused persons in Kalandra proceedings. So, the evidence placed on record by the prosecution reflects that in respect of the same incident on the DD entry of the complainant, the accused were slapped with Kalandra proceedings as a precautionary measure and separate FIR was registered against them for misbehaving with the complainant. In view of the aforesaid reasons I am of the considered opinion that the prosecution has proved the guilt of the accused persons beyond the reasonable doubt and they are not entitled to any benefit of doubt.
25. Whether 354 IPC is established against the accused?
Section 354 of IPC makes penal the assault or use of criminal force to a woman 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 or assaulted her.
(c) That the criminal force or assault must have been with the intention to outrage modesty of women or with the knowledge that it is likely to outrage her modesty.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 25
26. As regards offence under Section 354 IPC, it is composed of two essential ingredients: the use of criminal force or assault; and causing of the outrage of the modesty of the woman. That is to say that every use of criminal force or an assault would not necessarily attract S.354 IPC unless accompanied by some outrageous act directed towards the modesty of the woman. The component of such an outrage is legally comprised of either indenting to cause the outrage or the knowledge that such an outrage is likely to cause the outrage. The statute therefore takes away the defense of the accused that he did not have the knowledge that his actions would actually attract the provisions of S.354 IPC. It is also for the said reason that the Legislature deemed it proper not to define the term 'modesty' which is so subjective. Any definition could have induced 'technicalities' giving undue defense to an accused. The law expects extra caution on part of men dealing with women and the words 'likely to cause outrage' reflects that. The term 'modesty' is said to be attached to the women of all age and that would include the infants as well.
27. The complaint in this case has specifically stated that the accused persons dragged her inside the Tata Sumo Car and pressed her breast. The act of the accused is undoubtedly an assault on the modesty of the complainant and the very act establishes the intention on part of the accused to assault her modesty. Therefore, the essential ingredients of offence punishable u/s 354 IPC are proved by prosecution and the accused is convicted for offence punishable u/s 354 IPC.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 26
28. Whether offence under 506 is established?
Now coming to the allegations u/s 506 IPC, in order to attract the ingredients of S. 506, I. P. C. the intention of the accused must be to cause alarm to the victim. To constitute an offence under S. 506, I. P. C. it must be shown that the person charged actually threatened another with injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested, with the intention to cause alarm. Threatening is always coupled with a condition which the victim is compelled to meet. The 'fear' so induced by the culprit on the person of the victim operates as the 'threat'. The threat therefore is not a 'lone' entity but a sequence culminating into a compulsion thus leaving the victim with no choice but to comply. Whether or not the victim actually complies, the offense is completed the moment 'alarm' is set. But in order to have the 'threat' completed and the 'alarm' so set the essential link is between the 'fear' and the 'condition' to be met. If the said link is not established a 'threat' remains hollow as the culprit could always say that there was no reason for him to threat.
29. The statement of complainant does not indicate that the accused used any weapon to cause alarm in her mind. The necessary link between the threat and fear induced is not proved. Therefore, the accused persons are acuqitted u/s 506 IPC.
30. Whether offence u/s 341/34 IPC is proved against the accused persons.
The complainant has stated that the accused person obstructed the way of the complainant when she reached near their Tata Sumo and she was dragged inside their car. Thus, the accused voluntarily obstructed the way of the complainant and thereby prevented St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli 27 her from proceeding in a direction where she was entitled to proceed. Therefore, the essential ingredients of offence punishable u/s 341 IPC are also fully established and the accused persons are convicted for offence punishable u/s 341/34 IPC.
31. I order accordingly.
Announced in the open court on this day of 26th April, 2012 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi.
St. Vs. Beer Singh and anr. FIR no. 35/01, P.S. Mehrauli