Delhi District Court
Ravi S/O Sh. Shis Ram vs The State on 28 September, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS
JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI
CA No.237/18
Ravi s/o Sh. Shis Ram,
R/o Daddu Mohalla,
Gali no.1, Mandi Gaon,
Fatehpur Beri, New Delhi
..... Appellant
Vs.
The State
(Govt. of NCT, Delhi) ..... Respondent
Date of institution of appeal : 08.06.2018
Arguments heard on : 18.09.2018
Date of final judgment:28.09.2018
JUDGMENT
1. Present appeal has been preferred by the appellant for assailing the judgment of conviction dated 24.04.2018 and order on sentence dated 07.05.2018 passed by the court of Ld. MM-03, South District (Mahila Court), Saket Courts, New Delhi in FIR No.3346/15, u/s 354 IPC, PS Mehrauli. Vide impugned judgment, the appellant/convict was convicted by the Trial Court for the offences punishable under Sections 354 of IPC and vide impugned order on sentence, he was sentenced to undergo one year SI alongwith fine of Rs.3000/- for said offence and in default of payment of fine, he was further directed to undergo SI for one month. For the sake of convenience, hereinafter, appellant shall be referred as accused.
2. Brief facts of the prosecution case as emanating from the trial court record and present appeal are that on 22.12.2015, FIR CA No.237/18 Ravi vs. State page no.1/16 bearing no.3346/15 u/s 354 IPC was registered at PS Mehrauli on the complaint of complainant Ms. 'A'. As per the complaint, on 22.12.2015, complainant 'A' was coming back from Lalita Devi College after appearing in an exam and she boarded a van bearing no. DL- 9CB4259. In said van, other persons were also sitting. On the driver seat, one person was sitting alongwith driver and was collecting money from passengers. The said person misbehaved with her and molested her by touching her in inappropriate manner. Complainant further stated that the name of that person was revealed as Titu and name of driver was Sachin.
3. On the aforementioned complaint of the complainant present FIR was registered. During investigation, IO got the statement of complainant/victim recorded u/sec 164 Cr.PC, prepared site plan at the instance of complainant, recorded statement of other witnesses and also arrested the accused. After completing the investigation, IO submitted the chargesheet before trial court on 18.02.2016, whereupon Ld. Magistrate took cognizance. Vide order dated 27.06.2016, charge for the offence punishable u/s 354 (I) (i) IPC was framed against accused to which he pleaded not guilty and claimed trial.
4. During trial, prosecution examined only three witnesses namely Ms. 'A', the complainant/victim as PW1 and ASI Subhash, the IO of the case as PW-2 and Sachin, the driver of vehicle as PW3. The FIR No.3346/15 and statement u/s 164 Cr.P.C of complainant were admitted by the accused u/s 294 Cr.PC and were exhibited on record as Ex.P-1 and P-2 respectively.
CA No.237/18 Ravi vs. State page no.2/165. After completion of prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded. The accused did not wish to lead any evidence in defence. Ld. trial court after hearing the arguments from both the sides passed the impugned judgment dated 24.04.2018 thereby convicting the accused for the offences u/s 354 IPC and sentenced him in above terms vide impugned order on sentence dated 07.05.2018.
6. The present appeal has been preferred by appellant/convict on the ground that both impugned judgment and order are against the settled principle of law and deserve to be struck down; that Ld. Trial did not consider or deal with the submissions made by accused's counsel; that Ld. Trial court has failed to appreciate that the alleged incident took place in public transport and despite that, no independent eye witness or public witness has been examined by the prosecution nor any such person was joined by the IO in the investigation; that the order of conviction has been passed by the trial court without appreciating the fact that there were material improvements in the deposition of complainant and her statement made u/s 164 Cr.PC; that Ld. Trial court failed to appreciate that no independent witness was examined by the prosecution while complainant's own testimony was full of contradictions and discrepancies.
7. Ld. Defence Counsel has argued on the same lines of grounds of appeal by submitting that the testimony of the complainant victim was full of material contradictions and discrepancies and Ld. trial court has fallen into grave error by relying upon her sole testimony without seeking any corroboration from any CA No.237/18 Ravi vs. State page no.3/16 other material.
8. Per contra, Ld. Addl. PP rebutted the arguments by submitting that undue weight to minor and immaterial discrepancies cannot be given because such discrepancies are bound to occur especially in cases of truthful witnesses as a person cannot be expected to give a parrot like version of the incident. It is further argued that small deviation from the earlier statement which does not go into the root of the matter cannot be made a ground to over throw the case of the prosecution. It is further argued that version of the victim always deserves to be given a special weightage because it is unlikely that the victim would falsely implicate a wrong person especially when there is no history of previous enmity between them. It is further stated that in the instant case, although the accused has come up with the plea that driver Sachin has falsely implicated him as there was rivalry between van drivers and bus personnels, but he did not lead any iota of evidence to prove said plea. Therefore, in absence of any plausible defence, there was absolutely no reason for the victim to falsely implicate the accused.
9. I have given my thoughtful consideration to the rival contentions raised from both the sides and also perused the entire record.
10. PW1, is the most material witness of the prosecution case as she is the victim of offence and the whole case rests upon her testimony. As per her examination in chief, on 23/24.12.2015, at about 1:30-1:40 pm, she was coming back from his college after appearing in exam and was waiting for private metro feeder van at CA No.237/18 Ravi vs. State page no.4/16 the bus stand opposite Lingayas College. She boarded the van alongwith other students. When she felt something on her back, she got startled and looked at the back but there were many people therefore, she could not make out that who was touching her. However, when she again felt someone touching her on her back, she caught hold of the hand of said person i.e. accused present in the court who was touching her. She further deposed that accused then told her that as there was heavy rush in the van therefore, there was no place for keeping his hand. Further as per version of PW1, she and accused were sitting back to back i.e. facing opposite side but, their backs were adjacent. Therefore, accused could have kept his hand in front without touching her on her back. She further deposed that when she caught hold of the hand of accused, the accused instead of feeling apologetic, started abusing her. Further as per PW1, her friends also asked him that he could have kept his hand on the front side. Further that, they were about to deboard the van and PW1 and her friends tried to catch the accused but he fled away from the spot in other bus which was going towards Gurgaon. PW1 further deposed that thereafter, she lodged a complaint Ex. PW1/A in the PS.
11. As PW1 was not disclosing complete facts, she was cross examined by Ld. Addl. PP after taking permission from the court. During cross-examination, PW1 admitted that date of incident was 22.12.2015 and not 23.12.2015. She voluntarily deposed that due to lapse of time, she forgot the corrrect date. PW1 also stated that arrest memo Mark A bore her signature at point A. She further admitted that she had got her statement recorded before Ld. Magistrate. She further admitted that site plan was made by the IO at her instance and her supplementary statement was also recorded by the police.
CA No.237/18 Ravi vs. State page no.5/1612. SI Subhash is the IO of the case. As per his version, on 22.12.2015, while he was posted as SI at PS Mehrauli, DO handed over him computerized copy of the FIR alongwith Tehrir and present case was marked to him. PW2 interrogated the complainant and she told him that accused Titu had misbehaved with her and she also disclosed the registration number of the van where the incident had taken place. Thereafter, he sent beat staff to search the alleged vehicle and the accused at CDR Chowk, Chattarpur. The alleged vehicle bearing no. DL-9CB-4259 was traced at Mandi road. Thereafter, PW2 alongwith complainant went there and interrogated the driver of vehicle namely Sachin who told him that accused Ravi @ Titu (correctly identified by PW1 in the court) who hailed from his village Mandi Gaon was also traveling in his vehicle and misbehaved with the complainant. Further as per PW2, thereafter, he alongwith complainant and Sachin went to Mandi Gaon where on identification of complainant, accused was arrested vide arrest memo Ex. PW2/B and his personal search was conducted vide memo Ex. PW2/C. At the instance of complainant, PW2 prepared the site plan Ex. PW2/A. Further that, PW2 recorded the statement of complainant, Sachin and Ct. Mukesh u/s 161 Cr.P.C. PW2 further testified that on 06.01.2016, he got recorded the statement u/s 164 Cr.P.C. of complainant before Ld. Magistrate and after completion of investigation, he prepared the charge sheet and filed the same before concerned court.
13. PW3, Sachin is the driver of vehicle, in which alleged incident had occurred. As per his examination in chief, on 22.12.2015, he was driving his car Maruti Van bearing no. DL-9CB-4259 from Chattarpur to Mandi Gaon. On that day, when he was driving his car, CA No.237/18 Ravi vs. State page no.6/16 accused Ravi @ Titu, who was sitting on the front seat, misbehaved with the complainant who was also traveling in the same and when, she objected, he (accused) fled away. Thereafter, when police came, PW3 told him about the address of accused and he alongwith police and complainant went in search of accused at Mandi Gaon where he was arrested by the police vide arrest memo Ex. PW2/B.
14. As noted above, the FIR No.3346/15 and statement of complainant recorded u/s 164 Cr.P.C were admitted by the accused u/s 294 Cr.PC and were exhibited on record as Ex.P-1 and P-2 respectively.
15. Statement of accused was recorded u/s 313 Cr.PC wherein, he denied all the incriminating evidence put to him as incorrect and pleaded his innocence by stating that the allegations leveled by the complainant were false. The van driver was known to him and he was drunk and asked him to sit alongwith him (driver). He further stated that he did not misbehave with complainant in any manner and had been falsely implicated by Sachin, the driver because he (accused) used to help in preparing tickets in private buses there was rivalry between van drivers and bus personnels. In defence, accused did not prefer to lead any evidence.
16. After considering the evidence on record and the arguments raised from both the side, Ld. Trial court discarded the defence plea by observing that same is baseless for the reason that if at first place, there was rivalry between the driver and the accused then it is questionable as to why accused obliged driver Sachin and agreed to collect money in his van and secondly, why complainant CA No.237/18 Ravi vs. State page no.7/16 would do so at the instance of a driver. Ld. Trial court further noted that no connection has been shown by accused between complainant and the van driver. Accused also failed to show any kind of motive on the part of complainant to falsely implicate him and did not lead any evidence in his defence. While on the other hand, Ld. Trial court found the testimony of complainant as clinching, consistent and cogent by observing that complainant successfully stood the test of cross examination and did not fumble in any manner.
17. I have carefully perused the testimony of the complainant recorded before the trial court, her statement recorded before Ld. Magistrate u/s 164 Cr.P.C. as well as her complaint Ex. PW1/A on the basis of which, the FIR was lodged. After carefully analyzing all the versions of complainant, I find the above defence argument bereft of merits in as much as complainant's testimony with regard to the incident of 22.12.2015 is clinching with regard to the alleged conduct of the accused in touching her on her back and misbehaving with her. Even as per defence plea, the presence of accused in the same vehicle with the complainant and driver Sachin, on the relevant date and time is not disputed.
18. The testimony of complainant has remained un- impeached despite extensive grilling in cross-examination. Except putting the suggestion to the complainant that accused had inadvertently touched her due to crowd in the van and not deliberately or that she was deposing falsely at the instance of police officials, the defence counsel was not able to extract anything from her cross-examination to discredit her version with regard to alleged incident of 01.11.2013. Offcourse, the suggestions were categorically CA No.237/18 Ravi vs. State page no.8/16 denied by the complainant. As regard the touch being inadvertent and non deliberate, the trial court has rightly noted that when accused and complainant were sitting back to back, there was no occasion for the accused's hand touching the complainant's back, as he could have easily placed his hands on the front side. Furthermore, the trial court was absolutely right in its observation that a woman is blessed with special senses to identify the nature of touch i.e. whether it was appropriate or accident or it was inappropriate and intentional.
19. The core issue before the court was whether the accused tried to outrage and insult the modesty of the complainant. In the instant case, the alleged conduct of accused in touching the lower back of complainant with his hand while sitting opposite to her and then uttering the filthy/abusive language towards her when she raised objection to it, evidently shows the accused's intention was to outrage and insult her modesty with his aforementioned conduct.
20. The argument raised from the appellant side that there is no mention of presence of her college friends in the complaint Ex. PW1/A, is also not convincing because the FIR is not supposed to be an encyclopedia of all details of events. Rather, the friends of complainant, if examined by the prosecution as witnesses, would have been targeted as interested witnesses by the defence whereas, PW3 Sachin, who in my view is the most independent witness, has duly corroborated the complainant's version regarding alleged incident. In my view, absence of certain facts, which are not relevant to the broad and core issue is not at all fatal to otherwise consistent testimony of a witness especially when the witness is victim of offence of a sexual nature.
CA No.237/18 Ravi vs. State page no.9/1621. One more contention has been raised by the counsel for appellant that prosecution has failed to join any public witness despite the fact that complainant's friend was also present in the van at the time of alleged incident and hence, uncorroborated testimony of complainant was not sufficient to record conviction against the accused. We are also not oblivious of the fact that generally public at large do not feel inclined to be made as a witness in criminal cases especially considering the hassles which sometime the witnesses have to face on account of lengthy trial and repeated adjournments. Therefore, non examination of any public witness cannot by itself be a ground to discard the otherwise credible testimony of the witness especially when the witness herself is the victim of crime and the defence has failed to cite any good reason for her to falsely implicate the accused, who was a complete stranger to her. The defence plea that driver Sachin had got the accused implicated on account of some rivalry is also far fetched in absence of any relation between the complainant and said driver Sachin, as they both were also not known to each other.
22. In my considered view, the version of the victim was cogent, consistent and truthful and mere fact that it did not get corroboration through some independent witness is not sufficient to discard her version because in any case, it is the quality and not the quantity of evidence, which actually matters for proving the case.
23. Now coming to section 354 IPC which prescribes punishment for use of criminal force or assault on any woman with an intention to outrage her modesty,there are two necessary ingredients CA No.237/18 Ravi vs. State page no.10/16 of Section 354 IPC 'assault' or 'use of criminal force' to any woman and with the intention to outrage or knowing it to be likely that he will thereby outrage her modesty. Section 350 and 351 IPC define 'criminal force' and 'assault' as under:
350 IPC . Criminal force.- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
351. Assault.- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
The 'force' has been defined in Section 349 IPC and same reads as under:
349 IPC Force.- A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling; Provided that the person causing the motion, or change of motion, or cessation of motion, cause that CA No.237/18 Ravi vs. State page no.11/16 motion, change of motion or cessation of motion in one of the three ways hereinafter described.
First. - By his own bodily power.
Secondly.- By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly.- By inducing any animal to move, to change its motion, or to cease to move.
24. Though the word 'modesty' has not been defined anywhere in Indian Penal Code but, in State of Kerala Vs. Hamsa; LAW (KER)-1986-(6-13). It was held by the Hon'ble Kerala High Court that modesty is the attribute of female sex and it is a virtue which attaches to a female on account of sex. The question of infringing the modesty of a woman depend upon the customs and habit of people and the acts which are outrageous to morality would be outrageous to modesty of women.
25. Thus when the modesty of a woman is outraged or it is likely to be outraged coupled with an assault or criminal force, Section 354 IPC would be attracted. Though assault can be by mere gesture or preparation intending or knowing that it is likely that such gesture or preparation will cause any person present to apprehend use of criminal force. This is an act more than mere physical contact with advances involving unwelcome and explicit sexual overtures. Ingredients of Section 354 IPC would show that same mandate an actus reas of assault or criminal force with an intention to outrage or likely to outrage the modesty whereas a mere physical contact with advances as noted above would attract Section 354 A IPC. Though in CA No.237/18 Ravi vs. State page no.12/16 certain fact situations there may be cases where there may be an overlap of both Sections 354 and 354A IPC however, there may be cases which may exclusively fall either in Section 354 or Section 354 IPC. Once an offence falls under Section 354 IPC even if ingredients of Section 354A IPC are satisfied, the accused will be punished for Section 354 IPC the same being more serious in nature as it prescribes the minimum sentence of one year and term for imprisonment which may extend to five years." Reliance placed on the judgment of Hon'ble Delhi High Court in Amit @ Lalu vs. State, Crl. Apeal no. 858/2016, decided on 25.05.2017 of Delhi High Court.
26. In the light of above observation, the consistent testimony of the victim to the effect that the accused touched her back inappropriately while they were sitting back to back facing opposite direction and the conduct of accused in abusing her when she raised objection, evidently establishes the fact that the accused used criminal force against complainant with an intention to outrage her modesty. Accused's conduct in touching complainant's back with his hand, while considering their sitting position, there was no occasion for the accused to take his hand towards backside where complainant was sitting and thus, the very nature of his act was outrageous and insulting to the modesty of any woman and thus, was sufficient to make him liable to be punished for the offence u/s 354 IPC.
27. The proved circumstances of the present case are clearly indicative of the fact that the criminal force was used upon the complainant by the accused with an intention to outrage her modesty because by touching the lower back of the complainant with his CA No.237/18 Ravi vs. State page no.13/16 hands, accused had used the force by his own bodily power to affect the complainant's sense of feeling as is also evidently clear from illustration (f) to Section 350 IPC which reads as under:-
(f) A intentionally pulls up a woman's veil. Here a intentionally uses force to her, and if does so without her consent intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he has used criminal force to her.
28. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved act. Considering the repeated incidents of stalking, sexual assaults, acid attack etc, these road side romeos, have to be strictly dealt with by the courts. In Ajahar Ali Vs. State of West Bengal, SLP (Crl) No.2817/13 decided on 04.10.2013, Hon'ble Apex Court had taken a stern view against such offenders, who make the life of innocent girls miserable. While declining the benefit of probation to accused it was held that such crimes are heinous crime and with social condition prevailing in society, the modesty of a woman has to be strongly guarded, In said case accused was convicted for the offence of Section 354 IPC and the allegation against him were that, he forcibly caught hold of complainant's hair, while she was going to attend her tuitions and planted a kiss, resultantly she suffered a cut over her lower lip and started bleeding.
29. In the instant case, the accused instead of being apologetic for his conduct, rather started abusing the complainant thus, adding more insult to her and when she tried to catch him after deboarding the bus, the accused fled away by boarding another bus. We cannot lose sight of the fact that in India we still live in a very CA No.237/18 Ravi vs. State page no.14/16 conservative society where raising voice against such conduct of menfolk is not taken in good taste and many a times, such incidents go unreported. The attitude of society to ask their girls to treat such incidents as normal wear and tear of life and ignore them as insignificant, actually emboldens such errant, unscrupulous and sexually pervert people and at times it leads to more serious incidents like acid attack, sexual assault and rape.
30. By touching the body of the complainant without her consent, the accused has infringed the right of privacy of complainant. It is unfortunate that despite fast progress in technological advancement, our menfolk still does not realize the fact that by such pervert behavior, they not only deprive women from a safe and secure environment which is necessary for their holistic growth and development but, said gender based violence also acts as a deterrent to women to join work force and contribute in socio- economic growth of our country. Such sexually pervert behavior does not deserve any leniency as the purpose of sentencing is not only to punish the errant behavior but also, to bring a deterrent affect in the society. Hence, in my considered view, the accused does not deserve any benefit of probation. The trial court has already taken a lenient view as the punishment awarded to the accused is the minimum sentence prescribed under Section 354 IPC and there is no further scope of any reduction in the sentence.
31. In view of aforementioned discussion, I do not find any illegality or infirmity in the impugned judgment or the sentence order warranting any interference by this court. The appeal stands dismissed.
CA No.237/18 Ravi vs. State page no.15/1632. TCR alongwith copy of this judgment be sent back to trial court.
33. Appeal file be consigned to record room.
Announced in the open court on 28.09.2018 (SUNENA SHARMA) Addl. Sessions Judge-03(South) Saket Courts, New Delhi Digitally signed by SUNENA SHARMA SUNENA Date:
SHARMA 2018.09.28
15:38:49
+0530
CA No.237/18
Ravi vs. State page no.16/16