Delhi District Court
State vs . Ashok Jana on 16 February, 2016
1
IN THE COURT OF MS. CHARU GUPTA, METROPOLITAN MAGISTRATE
MAHILA COURT (SOUTH EAST), SAKET COURTS, NEW DELHI
FIR NO: 220/15
PS: Greater Kailash
U/s 354/354A(i)/454 IPC
State Vs. Ashok Jana
JUDGMENT
Date of institution : 06.07.2015
Name of the complainant : Ms. Komal
Name & address of the accused : Ashok Jana
S/o Sh. Sapan Jana,
R/o 13/07, Gali No.11,
Jamrudpur, New Delhi
Offence Complained of : U/s 354/354A(i)/454 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquittal
Date of arguments : 16.02.2016
Date of announcing of order : 16.02.2016
BRIEF FACTS:-
1. Briefly, the case of prosecution is that on 16.05.2015 at about 1.30am, at 11D, room no.33 Jamrudpur, New Delhi, accused used criminal force FIR No. 220/15 State Vs. Ashok Jana 1/8 2 against the complainant with intent to outrage the modesty and also made physical contact and advancing unwelcome and explicit sexual overtures by way of kissing the complainant. It is also the case of prosecution that on the said date time and place, accused committed lurking house trespass with intent to outrage the modesty of complainant.
2. As per statement of the complainant to the police, on 16.05.2015 at about 1.30 am, while complainant was a sleep in her room with her son and her brother was sleeping on the terrace, accused Ashok came to her room and hit her breast and kissed her and ejaculated on her face, she immediately woke up and turn on the light and she tried to hit the accused but he fled away from the spot. She chased the accused but could not find him and therefore returned to her room. She washed her face and again went to sleep. When she woke up in the morning, she found Rs.5000/- and spice mobile phone missing. She informed her brother at about 6.30am when he came down stair and called 100 number.
3. Upon her statement, an FIR of the incident was lodged on 16.05.2015 and the matter was investigated. Accused Ashok Jana was chargesheeted. Chargesheet was filed before the court on 06.07.2015. The court took cognizance and summoned the accused. Accused appeared and was supplied with copy of chargesheet. On 03.11.2015, Charge U/s 354/354A(i) and 454 IPC was framed against the accused. Accused pleaded not guilty and claimed trial and accordingly case was proceeded with prosecution evidence.
FIR No. 220/15 State Vs. Ashok Jana 2/8 3
4. In support of its case, prosecution examined 2 public witnesses and 1 official witnesses.
Complainant Ms. Komal was examined as PW-1. She deposed that on 16th May (year of which she did not remember), at about 12.00-12.30 at night, she was laid on the floor and asleep when accused discharged his semen from his penis over her face and neck. At that time, she woke up and tried to catch hold of the accused, however accused managed to escape. She had come to her sisters house on the date of incident. Her brother and sister were also present in the house but were asleep. She knew the accused as he was a friend of her brother. She chased the accused but he fled away. As it was late night, she called the police at 100 number in the morning at 7.30 am. Police came and recorded her complainant as Ex. PW1/A. Her statement U/s 164 CrPC was recorded before Ld. MM as Ex. PW1/B, site plan was prepared at her instance as Ex. PW1/C. She correctly identified the accused. She was duly cross examined by defence counsel.
Sh. Sanjay was examined as PW-2. He deposed that on 16th March of Last year, at around 01.00am he was sleeping at the terrace after having liquor. When he woke up in the morning his sister Komal informed him that the accused Ashok Jana had come to his house at around 1.00am midnight and had molested (Cher Chaad) and stole Rs.5000/-. He further deposed that he was informed by the complainant that she tried to stop the accused fled away from the spot. He thereafter went for his job and his FIR No. 220/15 State Vs. Ashok Jana 3/8 4 sister made a complaint against the accused in his absence. He correctly identified the accused. He was duly cross examined by defence Counsel.
SI Sahi Ram was examined as PW-3. He deposed that on 16.05.2015, he was posted at PS GK-I, on that day at around 8.00am, vide DD No.8A, he received information regarding the offence. He along with Ct. Arjun went to the spot at Jamrudpur Goan. On the spot, he met the complainant who complained of molestation by the accused. He called WSI Manisha. WSI Manisha arrived and recorded statement of complainant already Ex. PW1/A. He prepared Ruka Ex. PW3/A and handed over the same to Ct. Arjun. Thereafter, at the instance of complainant, site plan Ex. PW1/C was prepared. He recorded supplementary statement of complainant and search the accused. Statement of complainant U/s 164 CrPC was got recorded by him on 18.05.2015 and obtained information about the age of the accused vide Ex. PW3/B. On 02.06.2015, he along with Ct. Sunil apprehended the accused from his house and recorded his disclosure statement vide Ex. PW3/C and arrested him vide arrest memo Ex. PW3/D, conducted personal search vide personal search memo Ex. PW3/E. Supplementary statement of complainant was recorded Ex. PW1/D. He correctly identified the accused. He was duly cross examined by defence counsel.
5. During trial, accused admitted registration of DD no.8A dated 16.05.2015, proceedings recorded U/s 164 CrPC Ex. PW1/B and his date of birth record of SDMC, co-educational school Jamrudpur as also arrest memos, U/s 294 CrPC. Prosecution evidence was closed.
FIR No. 220/15 State Vs. Ashok Jana 4/8 5
6. Thereafter, statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to the accused. Accused denied the allegations of prosecution as false and pleaded false implication. He stated that he had been falsely implicated for the reason that he was known to the complainant for the last two to four years and that he had refused to provide any money to the complainant despite her demands. Accused did not choose to lead any evidence any as such defence evidence was closed and matter was posted for final arguments. I have carefully perused the record and considered the evidence.
7. Upon careful perusal of the record, evidence and rival contentions of the state and the defence, in light of the established law, this court has come to a conclusion that the case of the prosecution suffers from blatant infirmities and material contradictions such as follows.
(a) As per Ex PW1/A , it has been alleged by the complainant that the incident took place at 1.30am when her son was sleeping with the complainant in the same room while her brother Sanjay was asleep at the terrace. This is contradictory to her testimony as PW1, wherein she deposed that her brother and sister were also present in the house at the time of incident but were asleep. She has nowhere categorically stated or clarified in her testimony that her brother or sister were not present in the same room in which the alleged incident took place. Even during her cross examination, conceded that her brother as well as her son were sleeping in the same room in which she was sleeping on the date of incident. To FIR No. 220/15 State Vs. Ashok Jana 5/8 6 the contrary, PW2 Sanjay (brother of complainant / PW1) testified that he was sleeping at the terrace on the date of incident.
(b) It is an unusual conduct on the part of the complainant to have not raise alarm despite the fact that the incident took place while she was asleep and woke up immediately on realizing the presence of accused in her room at the dead of the night. Failure to raise alarm becomes even more enigmatic if presence of brother and her sister is assumed in the same room.
(c) There is also discrepancy in the fact as deposed by complainant about the time when she informed her brother of the incident. As per Ex.
PW1/A, she informed her brother in the morning at 6.30am, while as per her cross examination as PW1, she informed her brother at about 2.00am, after returning home when she failed to apprehend the accused. PW2 gave an altogether different version to this fact by stating that he was informed by his sister about the incident in the morning when he woke up (at 8.00am).
(d) complainant seeks to justify delay of about 7 hours in reporting of the matter to the police on the ground that she preferred not to inform the police immediately as it was late night. Such a reasoning appears to be improbable in the light of the fact deposed by her that despite the occurrence of incident at around 1.00-1.30am, she ran after the accused to chase him till his house on the streets at the dead of the night, all alone, admittedly without informing her brother but did not call the police as it was late night.
(e) It has come on record during cross examination of PW-1 that she met one Rajat and one Chaudhary on the street while she was searching the FIR No. 220/15 State Vs. Ashok Jana 6/8 7 accused and that these persons also helped her in search of the accused but could not find him. Despite this fact, such independent public persons have not been examined as witnesses and thus there is nothing concrete on record to establish the allegations of prosecution.
(f) Complainant has failed to account as to from where Rs.5000/- went missing from her house, where she had kept the amount and who exactly took it away. Vague allegations that the complainant found her money missing in the morning can not raise any inference that the same was taken away by the accused as there is not even any recovery of the said amount from the accused.
(g) It is pertinent to note that during her cross examination, PW1 initially could not tell as to whose phone was used by her to call the police at 7.30am in the morning but subsequently stated that she had called the police from the phone of the father of the accused. It is hard to visualize the presence of the father of accused in the house of the complainant early morning at 7.30 or that such father would help the complainant in calling the police to lodge complaint against his own son. Such evasive and apparently concocted reply raises doubts as to the veracity of the testimony of complainant.
(h) There is not even a whisper of any averment of accused having touched the breast of the complainant or of having kissed her, in the testimony of PW1 unlike what has been stated in Ex. PW1/A. A genuine victim to such an offence of molestation is unlikely to forget the manner of molestation and skip to depose the specific acts of molestation and its chronology, in a casual manner. Such above noted discrepancies compel the court to reject the testimony of complainant as unworthy of credit.
FIR No. 220/15 State Vs. Ashok Jana 7/8 8
8. As such in absence of any cogent independent evidence to corroborate the case of the prosecution and in wake of material contradictions in the testimony of complainant and her brother, prosecution can not be said to have proved its case beyond reasonable doubt. Accused accordingly stands acquitted of offence U/s 354/354A(i)/454 IPC. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (CHARU GUPTA)
ON 16th FABRUARY 2016 METROPOLITAN MAGISTRARTE
MAHILACOURT-02/SAKET
NEW DELHI
FIR No. 220/15 State Vs. Ashok Jana 8/8