Delhi District Court
State vs . Sanjeev Kumar on 25 September, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. SANJEEV KUMAR
FIR No. 282/07
P.S. :Defence Colony
U/S 354/451 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 16.10.2007
2. SERIAL NUMBER OF THE CASE : 195/2
3. DATE OF COMMISSION OF OFFENCE : 29.05.2007
4. NAME OF THE COMPLAINANT : Smt. Parkash Sharma
5. NAME OF THE ACCUSED & ADDRESS : Sanjeev Kumar Ditta S/o Sh.
Anand Kumar Ditta, R/o O27,
Lajpat NagarII, New Delhi.
6. OFFENCE COMPLAINED OF :U/S 354/451 IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
8. DATE OF RESERVE OF JUDGMENT : 20.09.2012
9. THE FINAL JUDGMENT : Accused is convicted for
offence u/s 354/451 IPC
St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 2
10.THE DATE OF FINAL JUDGMENT : 25.09.2012 BRIEF REASONS FOR DECISION OF CASE:
1. The case of the prosecution is that on 29.05.2007 at about 11.00 a.m. At 40/20, Manohar Ganj, Gautam Nagar, New Delhi within the jurisdiction of PS Defence Colony accused Sanjeev Kumar committed house tresspass by entering into the above said house; and caught hold of the complainant Smt. Parkash Sharma and outraged her modesty; and thereby committed an offence u/s 354/451 IPC. The FIR was registered on the complaint of the complainant against the accused and investigation was carried out.
2. Charge sheet under Section 354/451 IPC was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 29.01.2009 charge for offence under Section 354/451 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined three witnesses and the prosecution evidence was closed vide order dated 04.09.2010.
St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 3
4. PW1 is the DO. He deposed that on 29.05.2007 he was posted as DO at PS Defence Colony. On that day, at about 12.15 pm, on receipt of rukka through HC Sukhvinder sent by SI Atul Sood, he registered the case FIR No. 282/07, u/s 354 IPC vide Ex. PW1/A and made endorsement on the rukka vide Ex. PW1/B. After registration of FOR, he handed over the copy of FIR and original rukka to HC Sukhvinder as further investigation was marked to him.
5. During his cross examination, he stated that his duty hours on29.05.2007 was from 8.00 am to 4.00 pm. He cannot tell what was the day on 29.05.2007. He was posted in the PS for the last about 4 years and his duty was from 8.00 am to 4.00 pm. He denied the suggestion that he was not on duty on the alleged day or at any point of time as stated by him.
6. PW2 Smt. Parkash Sharma deposed that on 29.05.2007 at about 11.00 am, she was present at her house i.e. H. No. 40/20, Gautam Nagar, New Delhi49. The accused Sanjeev who was previously known to her came, he appeared to be not in sense and came from the hospital and told her that "mai tumse pyar karta hoo or hum aaj ek ho jayenge". She correctly identified the accused in the court. The accused had knowledge that she is a married woman. She had not invited accused but he used to come to her house since he used to teach her bible. Earlier she had filed a case against him which has since ended. The accused had caught hold of St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 4 her. Thereafter, she had gone to house of accused where his parents abused her. She reported the matter to the police vide her complaint Ex. PW2/A wherein she narrated the whole incident in detail.
7. During her cross examination she admitted that proceedings u/s 107/150 Cr.P.C. was initiated against the accused person at her instance. She cannot say as to whether she had filed the copy of the said complaint in the present case nor she remembers that a copy of present FIR was submitted by her in that proceedings u/s 107/150 Cr.P.C.. She had appeared in the said proceeding and her statement was reduced in writing. She was cross examined by present Ld. Defence Counsel. She denied the suggestion that she is deposing falsely that she does not remember that she had filed the copy of present FIR in the said proceedings. She does not remember as to how long that proceeding u/s 107/150 Cr.P.C. continued. She had withdrawn the said proceeding without any pressure from any corner. After the withdrawal of the said case, accused forcibly caught hold of her and entered into her house against her wishes on 29.05.2007. She does not remember date of compromise in said case. She denied the suggestion that case was decided on 22.10.2007. She denied the suggestion that no such incident had occurred on 29.05.2007. She denied the suggestion that she has falsely implicated the accused in the present case. She denied the suggestion that she had not stated in her complaint Ex. PW2/A to the police that "mai tumse pyar karta hoo or hum aaj ek ho St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 5 jayenge". The witness was confronted with her statement Ex. PW2/A at point A to A wherein it is not so recorded. She voluntarily stated that accused had kissed her and held her, and this is what she meant when she said that he told her " "mai tumse pyar karta hoo or hum aaj ek ho jayenge". She denied the suggestion that this is a false case and for the reason she is not deposing consistently.
8. PW3 HC Sukhvinder is the IO. He deposed that on 29.05.2007 he was posted as HC at PS Defence Colony and on that day on receipt of complaint against one Sanjeev Kumar, he got registered the case FIR No. 282/07 and investigation of this case was assigned to him. Thereafter, on 30.05.2007, he arrested accused Sanjeev Kumar Ditta vide arrest memo Ex. PW3/A and his personal search was conducted vide Ex. PW3/B. He was released on bail vide personal bond & surety bond Ex. PW3/C. He recorded the statements of PWs and completed the challan, and filed the same in the court.
9. During his cross examination, he stated that he had visited the house of the complainant during the course of investigation. He made enquiries from the neighborers regarding the quarrel between the complainant and accused but none came forward. He cannot tell the name of those neighborers, their house numbers etc. He denied the suggestion that he had not visited the house of the complainant. He stated that he has no knowledge that accused was suffering from any St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 6 psychiatric problem. He denied the suggestion that he has complete knowledge of psychiatric condition of accused. He denied the suggestion that he was officer in proceeding u/s 107/150 Cr.P.C. against accused and the accused was arrested by him in said proceedings, and prior to arrest of accused, he was aware of illness of accused. He denied the suggestion that the copy of present FIR No:282/07 & complaint dt.2952007 have been filed in said Kalandara u/s 107/151, by him. He does not remember as to whether he deposed in said proceedings before the court or not. He also does not remember as to whether he appeared in the said court at any point of time. He denied the suggestion that the incident involved in present complaint dt.2952007 has already considered in Kalandara filed u/s 107/150 Cr.PC. against the accused. He denied the suggestion that present case FIR has arisen from complaint dt.29507 which has already been adjudicated by competent court of law u/s 107/150 Cr.PC. He does not know as to when said proceedings u/s 107/150 Cr.P.C. concluded. He does not know as to whether said proceeding were compromised or withdrawn by the complainant. He denied the suggestion that he had not properly investigated the present case. He denied the suggestion that complainant has not made any complaint or that he had falsely implicated the accused in order to extort money from the accused. He denied the suggestion that matter was compromised by the complainant on 22102007 in Kalandra proceedings u/s 107/150 Cr.PC before the competent court vide compromise Ex. PW3/DA(Collectively 6 pages). He denied the suggestion that there was no need to St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 7 charge sheet the accused in the present, case after the compromise dated 22102007. He voluntarily stated that said compromise was not within his knowledge before today and the copy of said order Ex. PW3/DA is shown to him only today. He denied the suggestion that the complainant has not supported prosecution case as the same is based on false allegations against the accused persons. He denied the suggestion that he is deposing falsely.
10.The statement of accused was recorded u/s 313 Cr.P.C. and all the incriminating evidence was put to the accused. The accused denied all the allegations leveled against him and stated that he has been falsely implicated by the complainant in the present case, because the complainant wanted to extort money from his parents in collusion with the police and wants to lead evidence in his defence.
11.The accused produced two witnesses in his defence. Firstly, he examined himself u/s 315 Cr.P.C. He deposed that one case u/s 107/150 Cr.P.C. was filed against him prior to this case. The said case was withdrawal by the complainant. After showing the complaint Ex. PW2/A and copy of FIR Ex. PW1/A, the witness stated that the same were filed by the complainant at the time of her examination in chief before the Court of Ld. Special Executive Magistrate in proceeding u/s 107/150 Cr.P.C. Thereafter, the said case u/s 107/150 Cr.P.C. was withdrawn by the complainant on 22.10.2007. The certified copy of the statement of complainant Smt. Parkash St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 8 Sharma made before the Ld. Special Executive Magistrate is marked as D1. He stated that he has been suffering from Bipolar Affective Disorder since the age of 13 years. The said disease is incurable and he is still under treatment. The certificate in this regard issued by Dr. Sanjay Pattnayak, Consultant, Psychiatrist, VIMHANS is marked as D2. The incident dated 02.04.2007 & 29.05.2007 are based on false allegations. He never committed such acts as alleged by the complainant. He has been falsely implicated by the complainant because she wanted to take benefit of his disease and wanted to extort money from his parents by implicating him in a false case.
12.During his cross examination, he stated that the complainant never demanded money from him. He cannot say whether she has demanded money from his parents. He denied the suggestion that he is deposing falsely to save himself, being an accused in the present case.
13.DW2 Doctor Sanjay Pattanayak deposed that Mr. Sanjeev Kumar Ditta(Accused) S/o Anand Kumar Ditta resident of 427, Lajpat Nagar2, New Delhi is under his treatment since 10/09/2004. Mr. Sanjeev Kumar Ditta is under his treatment since the year 2007 and Mr. Sanjeev Kumar Ditta is still under his treatment. He identified certificate issued by him which is on judicial file as Mark D1 and identified his signatures at point A and the same is now Ex. DW2/A. In the year 2007, accused St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 9 Sanjeev Kumar Ditta was suffering from bipolar affective disorder and he was under
his treatment.
14.During his cross examination, he admitted that date is not mentioned on the certificate Ex. DW2/A. He admitted that the patient suffering from bipolar affective disorder may behave normally in between episodes of illness. He admitted that he can not say whether on 29/05/2007, at about 11:00 A.M, the accused (correctly identified) was normal or was in spell of his illness. He voluntarily stated that however he was admitted on 27/04/2007 in VIMHANS for a manic episodes of one month duration, and he was discharged on request of his family members on 02/05/2007, while he was still symptomatic. He gave a medical certificate recommending medical leave from 27.04.2007 to 27/05/2007 i.e. mark DX1 and which has been duly signed by him. He admitted that date of issue of the said certificate is 15/05/2007. He admitted that he had recommended the patient for the medical leave from back date 27/04/2007 to 26/05/2007 on date of issue of the certificate on 15/05/2007. He voluntarily stated that as the accused was admitted on 27/04/2007, so the certificate was given from that date. He admitted that he had certified that the patient was fit to attend work on 27/05/2007 after evaluation. He denied the suggestion that he was deposing falsely.
15.During his cross examination by Ld. Defence Counsel, he admtted that accused St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 10 Sanjeev Kumar Ditta is his patient and he is still under his treatment.
16.The Ld. APP has submitted that the prosecution has fully succeeded in bringing home the guilt of the accused beyond reasonable doubt. On the other hand, the counsel for accused has stated that the complainant has implicated the accused in a false case. The evidence produced by the prosecution is not sufficient to give finding as to the guilt of accused for an offence u/s 354/451 IPC.
17. I have bestowed my careful consideration to the arguments advanced at bar and perused the entire evidence carefully.
Brief reasons for the decision of the case :
18.The complainant has supported the prosecution in all material particulars. Her testimony remained coherent and consistent, and the defence failed to corrode her credibility during her cross examination. She stood the test of cross examination.
19.The counsel for the accused has argued that the complainant entered into settlement with the accused in Kalandra u/s 107/151 Cr.P.C. slapped against the accused on 02.04.2007, on the complaint of present complainant. The complainant also made the statement before Special Executive Magistrate, South District, New St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 11 Delhi on 22.10.2007 wherein she stated that she does not want any further proceedings against the accused herein, and asked for the closure of the said Kalandra proceedings. However, in the present case, she deposed on 09.11.2009 against the accused. It is argued by Ld. Counsel for the accused that as there was already an amicable settlement between the parties on 22.10.2007, the deposition of the complainant in the court on 09.11.2009 against the accused cannot be read against the accused. I do not find any force in the submission of Ld. Counsel for accused. The statement of complainant on 22.10.2007 before Special Executive Magistrate, South District, New Delhi only reflects that in that particular case, the complainant expressed her desire not to further continue the proceedings and prayed for closure of the said Kalandra proceedings. Moreover, the complainant did not state even in the said statement on 22.10.2007 that she has reached any amicable settlement with the accused. Moreover, she never made any statement for compounding of this case before this court. Merely because she opted for closure of Kalandra proceedings, it cannot be deemed that she wanted to compound even the present matter. Therefore, there is no bar is reading her testimony in the present case for the purpose of decision of the present case.
20.The counsel for the accused has also argued that in view of medical condition of the accused at the time of incident, he was by reason of unsoundness of mind, incapable of knowing the nature of his act and also not aware that what he was St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 12 doing was either wrong or contrary to law. The same is substantiated by Dr. Sanjay Pathnayak VIMHANS., DW2.
21.It is borne out from the evidence of DW2 that the accused was suffering from Bipolar affective disorder. He also deposed that in this illness there are recurrent periods of extreme excitement(mania) and extreme depression. During periods of mania there is increase in energy level, confidence, speech, sexual drive, spending and aggressive and disinhibited behavior and there is loss of judgment. During the period of depression, there is decrease in confidence, energy level, sadness of mood, helplessness, hopelessness and suicidal ideas can occur. In between the periods of illness, the patient stays normal.
22.In his cross examination, he admitted that he cannot say whether on 29.05.2007 at about 11.00 am (time of incident), the accused was normal or was in the spell of his illness. He also admitted that he had given certificate that the accused was fit to attend work from 27.05.2007 after evaluation. Thus, the evidence of DW2 nowhere proves that at the time of incident on 29.05.2007 , the accused was suffering from any disorder. Under Section 84 of IPC, the mental condition of the accused at the time of incident is material to exclude mens rea of the accused. The defence has failed to prove that the accused was suffering from any insanity at the time of incident.
St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 13
23.It is a settled law that the solitary testimony of the prosecutrix without any corroboration, is sufficient to return the finding of guilt against accused for sexual offences provided the court finds the testimony of prosecutrix truthful, reliable and trustworthy. The testimony of the complainant in the present case, is found credible and inspires confidence. There is nothing on record to disbelieve the testimony of the complainant. The investigation of the case is also duly proved. So, the prosecution has fully succeeded in establishing the guilt of the accused beyond reasonable doubt. I am of the considered opinion that the sole testimony of the complainant is sufficient to give finding as to the guilt of the accused in the present case.
Whether 354 IPC is established against the accused?
24.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. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 14
25.The complainant has specifically stated in her evidence that accused came to her house and told her that "Mai Tumse Payar Karta Hoo or Hum Aaj Ek Ho Jayenge"
and caught hold of her. In her cross examination, she further explained that accused kissed her and held her. Holding a woman and kissing her without her consent is undoubtedly an affront to her modesty and dignity. The law expects men to be extra cautious when dealing with women and the act of the accused necessary implies knowledge on his part that by his act, he is likely to outrage the modesty of the prosecutrix. All the essential ingredients of section 354 IPC stand duly proved by the prosecution. Therefore, the accused is convicted for offence punishable u/s 354 IPC.
Whether 451 IPC is established against the accused?
26.Section 451 IPC provides punishment for House tresspass in order to commit offence punishable with imprisonment. It reads as under:
"Whoever commits House tresspass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two year, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years".
The terms house tresspass is further defined in Section 442 IPC which reads as St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 15 under:
"Whoever commits criminal tresspass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house tresspass"
The terms criminal tresspass is defined in Section 441 IPC which reads as under:
"Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal tresspass".
27. The complainant specifically deposed in her evidence that on 29.05.2007 at about 11.00 am the accused came to her house and misbehaved with her. The act of the accused is clearly covered within the ambit of Section 451 IPC. Thus, the prosecution has also proved the guilt of the accused beyond reasonable doubt u/s 451 IPC. Therefore, accused is also convicted for offence u/s 451 IPC.
St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony 16
28.Put up for arguments on sentence on 17.10.2012.
Announced in the open court on this th day of 25 September 2012.
(PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi.
St. Vs. Sanjeev Kumar Ditta, FIR no.282/07 P.S. Defence Colony