Delhi District Court
Fir No. 477/07 Id No.02404R0245112008 ... vs . Suresh Kumar Gupta on 9 November, 2011
FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta
IN THE COURT OF MS. RACHNA T. LAKHANPAL METROPOLITAN
MAGISTRATE : MAHILA COURT: DELHI.
FIR No. 477/07
PS Prashant Vihar
U/s.354/509 IPC
ID No.02404R0245112008
State Vs. Suresh Kumar Gupta
1. Sl. No. of the Case :242/02 .
2. Date of Commission of Offence : 15.07.07
3. Name & Add. Of the Complainant : Mrs. Guddi
W/o Sh. Shiv Ram
R/o House of Samay Singh,
Shahbad Dairy,Delhi.
4. Name & Add. Of the Accused : Suresh Kumar Gupta
S/o Late Sh.Chhotu Ram Gupta
R/o R/o A35, Sai Baba Appt., Sector
Sec.13,Ext., Rohini,Delhi.
5. Offence complained of : U/s 354/509 IPC.
6. Plea of the Accused : Pleaded Not Guilty.
7. Final Order : Convicted U/s. 509 IPC
8. Date for reserve of Order : 05.10.2011
9. Date of announcing of order :09.11.2011.
BRIEF FACTS & REASONS FOR SUCH DECISION
1. Prosecution case commenced upon receipt of DD No. 10 dated 15.07.2007 whereupon HC Naresh Kumar along with Ct.Bijender reached the spot and enquired into the matter. Statement of complainant Mrs. Guddi was FIR No. 477/07 State Vs. Suresh Kumar Gupta 1 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta got recorded. Endorsement was made thereon, rukka was prepared. FIR was got registered. Gist of the complaint so far as relateable to the offence is that on 15.07.07 at about 9:00 AM the complainant Mrs. Guddi along with her husband came to her shop /'Thiye' for ironing the clothes. Thereafter, her husband went to take coal for the purpose of iron. When she was sweeping outside her shop accused Suresh came and asked why she had not delivered the clothes. At this she told the accused that her son had already gone the day before yesterday to his house to deliver the ironed clothes but his house was closed and as yesterday was holiday on account of Amavsya so they did not deliver the same. She also said to accused that as soon as her husband come he will return their clothes. At this accused Suresh became angry and gave filthy abuses to the complainant and pushed her. He threatened to burn her jhuggi. When her husband came she told him about the incident. Thereafter, the matter was informed to the police.
2. Investigations as mentioned above commenced and concluded by presenting the charge sheet disclosing offence U/s 354/509 IPC against the accused Suresh Kumar Gupta. Compliance of Section 207 Cr.P.C. was made. Submissions were heard and charge U/s 354/509 IPC was framed. Accused had opted to contest the same.
3. In order to bring home the guilt against the accused prosecution has examined as many as seven witnesses.
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FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta
1. PW1 ASI Manisha Sharma who was the duty officer and upon receiving rukka registered the FIR.
2. PW-2 is Sh. V.M. Sahni who is the General Secretary of RWA, Sai Apartment and eye witness. He admitted that accused was arrested in his presence. He also admitted that he had joined the investigation of the case on 15.07.2007.
3. PW-3 is the the complainant herself who has narrated the whole incident in her statement.
4. PW-4 is Sh. Shiv Ram is the husband of the complainant.
5. PW-5 HC Naresh Kumar who along with Ct. Bijender who prepared the site plan Ex.PW-5/A at the instance of the complainant and recorded the statement of the complainant.
6. PW-6 Ct. Bijender Singh, who along with HC Naresh Kumar conducted the investigations of the case.
7. PW-7 Madan Mohan is the record clerk from BSA Hospital who was summoned by the court to produce the MLC of complainant Guddi as doctor Mukesh Yadav had left the services of the hospital.
8. Statement of accused Suresh Kumar Gupta has been recorded u/s.313 Cr.P.C. wherein he has denied all the allegations made against him. He has stated that he is innocent and has been falsely implicated in the present. He did not opt to lead defence evidence.
4. Final arguments have been heard on behalf of accused as well as on FIR No. 477/07 State Vs. Suresh Kumar Gupta 3 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta behalf of the State and record has been meticulously perused. Before proceeding further to prove and analyse various testimonies, let us enumerate the essentials of offence which the prosecution is under a mandate to prove.
The accused is charged u/s.354 & 509 IPC.
5. Section 354 of the Penal Code is in these words: "Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years with fine, or with both".
For conviction under Section 354 of the Indian Penal Code, what the prosecution is required to prove is that :
a) an assault has been committed or criminal force used,
b) the object of the assault or criminal force is a woman, and
c) that it was with the intention of outraging the modesty of a woman or knowledge that it was likely that her modesty would be thereby outraged.
6. Assault has been defined in section 351 of IPC. Assault committed on women may be of various types and of varying degrees. Some of the other offences against women are rape punishable under Section 376 of the Indian Penal Code, and attempt to commit rape, which can be punished under Section 376/511 of the Indian Penal Code. There may be cases, and frequently there are, where the assault on a woman neither amounts to rape nor an attempt to commit it. It may still be such an assault as interferes with modesty of a woman or is considered indecent according to morality and in the eye of law. The provision contained in Section 354 of the Indian Penal Code is one of the few provisions, contained in the India Penal Code to FIR No. 477/07 State Vs. Suresh Kumar Gupta 4 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta protect against indecent behaviour or lust of men. It is also intended in the interest of decency and morals and the values that the legislature attaches to the protection of woman against such assaults is obvious from the fact that it has prescribed a punishment of imprisonment of either description for two years and fine without limit as maximum penalty for such an offence. In construing Section 354 of the Indian Penal Code this object of the legislature has not to be lost sight of. The object of this provision seems to have been to protect woman again indecent behaviour of others which is offensive to morality.
7. Now in instant case, the question arises for consideration is that whether accused used criminal force or assault to the complainant, if yes, then whether such conduct amounted to outraging the modesty of the complainant.
8. In the instant case, complainant has appeared in the witness box as PW-3, She has categorically corroborated her statement made before the police. She has categorically deposed in her examination in chief that on 15.07.07, when her husband went to take coal for the purpose of iron, accused had asked about not ironing his clothes. She tried to explain that the house of accused was closed. However, the accused started abusing her and used filthy language. (Literal abuses have been mentioned in the complaint as well as in examination in chief but I deem it appropriate not to mention here for the sake of propriety.) Accused pushed her and then left the spot. When her husband returned, her children narrated the incident. Her husband asked the accused about the said incident. But the accused and his children started beating her husband. Thereafter, police was called.
9. In her cross examination also, counsel for the defence could not shake the testimony of PW-3. Nothing exculpating could come out in the cross examination. In the cross examination she admitted that behaviour of accused FIR No. 477/07 State Vs. Suresh Kumar Gupta 5 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta with her was good before the incident. However, I am afraid that defence can not take benefit of this past good behavior of the accused as there are no such allegations that accused used to misbehave. The alleged incident is instantaneous, not a preplanned one. PW-4, who is husband of the complainant is not the eye witness of the incident. However, he deposed that when he came back he learned about this incident. He went to the accused but the accused and his children started beating him.
10. PW-2 is another eye witness and had been in RWA Sai Appt, where the alleged incident occured. He turned hostile. Therefore, his testimony can not be relied upon to prove the offence. However, PW-2 in his cross examination by the Ld. APP, has admitted that he is a graduate and can read and write english, hindi as well as Urdu. He admitted that accused was arrested in his presence and he admitted his signatures on arrest memo ie., Ex.PW-2/A . He also admitted that he joined the investigation of the case on 15.07.07. However upon confrontation of his statement recorded u/s.161 Cr.P.C., he deposed that it is wrong to suggest that IO of the case had recorded his statement. In such circumstances, when the PW-2 admitted that he joined the investigation and admitted that he signed arrest memo, it appears that he is deposing falsely. Anyhow, in the instant case even if I discard the testimony of independent witness ie., PW-2, the testimony of PW-3 has been credible and throughout remained unshaken. She has substantiated her complaint as well as statement before the police.
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FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta
11. It is well settled that offence can be proved even on the basis of testimony a sole eye witness. It is also well settled that if the testimony of the witness is otherwise reliable can not be discarded being the testimony of interested witnesses.
12. In view of the discussion above, the prosecution has succeeded in proving the fact that accused pushed the complainant and gave filthy abuses to her.
13. Now, the question arises, whether such an act of pushing the complainant, would amount to outraging her modesty.
14. In the instant case, from the circumstances discussed above, it is apparent that accused was angry with the complainant for not getting ironed clothes on time and in a fit of rage, he pushed the complainant. From this very conduct of accused, it is not probable and can not be concluded that this force was used with an intention to outrage her modesty or with the knowledge that the modesty would be outraged.
15. Of course, to bring, the offence under Section 354 of the Indian Penal Code the intention or knowledge specified in this section has to be made out and if such intention or knowledge is lacking, even if it is proved that the assault had been committed or force used and the victim was a woman, the offence would not be punishable under Section 354 of the FIR No. 477/07 State Vs. Suresh Kumar Gupta 7 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta Indian Penal Code.
16. Hence, the accused is acquitted u/s.354 IPC as the intention or knowledge to outrage the modesty of complainant is not proved by mere pushing the complainant.
17. Now, let us examine the essentials of Sec.. 509, before proceeding further as the accused's is charged u/s.509 as well. Section 509 of the Indian Penal Code, which runs as follows:-
" Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy ' of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with both"
18. From the language of this section, it is evident that the mere uttering of any word, making of any sound or gesture or exhibition of any object to a female with the intention that such word or sound shall be heard or such gesture or object seen by such woman, is punishable irrespective of the fact whether the woman concerned has or has not heard the words, noticed the gestures or seen the object exhibited.
19. From the testimony of PW-3, as discussed above, it has been proved that accused uttered filthy abuses (not being mentioned here for the sake of properiety) to the complainant. Using of such filthy language against the complainant i.e, a woman, is absolutely indecent behaviour and offensive to FIR No. 477/07 State Vs. Suresh Kumar Gupta 8 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta morality. The object of this provision seems to have been to protect woman against indecent behaviour of others which is offensive to morality. The accused's conduct was indecent and offensive against the complainant. The offences created by Section 354 and Section 509 of the Indian Penal Code are as much in the interest of the woman concerned as in the interest of public morality and decent behaviour. These offences are not only offences against the individual but against public morals and society as well, and that object can be achieved only if the word, "modesty" is considered to be an attribute of a human female irrespective of the age, social and economic background. If that is considered, the accused has intentionally insulted the modesty of the complainant by uttering filthy abuses. Hence in view of the above discussion the case u/s. 509 stands proved against accused Suresh Kumar Gupta. Accordingly, accused stands convicted for the charge U/s 509/34 IPC. Accused shall be heard on the point of sentence separately. Announced in the open court today on 09.11.2011.
(RACHNA T. LAKHANPAL) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
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FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta
FIR No. 477/07
PS Prashant Vihar
U/s.354/509 IPC
09.11.2011
Present: Ld. APP for the State.
Accused present along with counsel.
Vide separate judgment dictated and announced in the open court today, the case of prosecution for the offence U/s 509 IPC stands duly proved. Hence, the accused Suresh Kumar Gupta stands convicted for the offence U/s 509 IPC.
Now to come up on 14.11.2011 for arguments as well as order on the point of sentence.
(RACHNA T. LAKHANPAL) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
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FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta
FIR No. 477/07
PS Prashant Vihar
St. Vs. Suresh Kr. Gupta
U/s. 354/509 IPC
14.11.2011
ORDER ON THE POINT OF SENTENCE:
Present: Ld. APP for State.
Convict in person.
Submissions of Ld. Counsel for the convict heard. Looking into the nature of allegations and the offence, it has been vehemently argued for the convict that he has no past criminal antecedents and therefore, leniency has been prayed. It has been further submitted that the convict is sole bread earner in his family and he has the responsibility of his spouse and two children. The study of the children will be affected if he will be sent to jail. He has also submitted that he is 55 years old and suffering from heart disease and regularly he goes to hospital for medical checkup. His wife is also suffering from various diseases. Medical treatment papers of the convict are also annexed with the application.
The court has carefully gone through the material facts for consideration of the quantum of sentence of the convict.
The court has also given due regard to the fact that the convict has no other criminal conviction or antecedents reported. The convict is the only bread earner his family. I am of the view that the convict here in must have learnt from his past mistake and want to join the society to display good behaviour and be a better asset for the society as a whole. Giving the due regard to the facts and circumstances observed by this court, the court considers it appropriate to invoke the provisions U/s 360 (1) Cr.P.C in the present case. In the interest of justice and expediency, the convict/offender be released on probation of good behavior FIR No. 477/07 State Vs. Suresh Kumar Gupta 11 of 9 FIR No. 477/07 ID No.02404R0245112008 State Vs. Suresh Kumar Gupta : 2 : and conduct for a period of one year whereby he shall be required to keep peace and be of good behavior. Convict is released on their entering into a personal bond/probation bond in the sum of Rs. 20,000/. The convict shall be liable to appear and receive the sentence when called upon during such period for a failure to observe the conditions of the probation. During the probation period, in case the convict wishes to leave the jurisdiction of this court, he shall give a prior intimation to this court regarding the dates and period, when the convict wishes to visit any place outside the jurisdiction of this court. Ordered accordingly.
Probation bond of the convict furnished and accepted. Copy of judgment and order be given free of cost to accused.
Announced in the open court (RACHNA T. LAKHANPAL) today on 14.11.2011. METROPOLITAN MAGISTRATE: DELHI.
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