Delhi District Court
State vs . Ashu on 12 December, 2013
IN THE COURT OF SHRI YOGESH KHANNA,
ADDITIONAL SESSIONS JUDGE - SPECIAL FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique ID No. 02406R0270822011
SC No. : 100/2013
FIR No. : 183/2011
U/s. : 376/323/341/511/341 IPC
PS : Jaitpur, New Delhi.
State
(Govt. of NCT of Delhi)
........................ Complainant.
Versus
Ashu
S/o Shri Jalaluddin
R/o House No. B-965,
Kachhi Colony, Madanpur Khadar,
New Delhi.
.........................Accused person.
Date of Institution : 18-01-2012
Judgment reserved for orders on : 10-12-2013.
Date of pronouncement : 12-12-2013
JUDGMENT
1. The present case was registered on the statement of the prosecutrix stating, inter alia, that :
"I am a housewife, residing in a rented accommodation. On 13-7-2011 at about 4:54 am while I was urinating in an open space State vs. Ashu SC No. : 100/2013 Page No. 1 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
opposite Nagar Nigam School, when four boys, one of which was a tall boy, wearing track suit, aged 24-25 years ; a second boy, medium built wearing white kurta and jeans pant, they all caught hold of me and the third boy put his hand on my mouth. The two other boys caught hold of my hand and gave me beatings and even torn my clothes and tried to commit sexual intercourse with me. I identify the taller boy, namely Ashu, a resident of B-965, Kacchi Colony, Madanpur Khadar, New Delhi. I can identify the other three boys if they come before me. They all had tried to rape me. Hence, action be taken against them."
2. On the basis of the above complaint, FIR no. 183/2011 was registered under section 323/341/ 376/511/34 IPC at P.S Jaitpur, New Delhi. Only accused Ashu was arrested during the course of investigation. Remaining boys could not be traced. On completion of investigation the charge sheet was filed.
3. Since it was a Session's triable case, it was State vs. Ashu SC No. : 100/2013 Page No. 2 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
committed to this court. On 15-3-2012, a charge under 323/341/34 IPC and under section 376/511 IPC was framed against the accused. He pleaded not guilty and claimed trial.
4. The prosecution examined as many as 10 witnesses. Before proceeding further, let me state in brief the depositions made by the prosecution witnesses.
PW1 is the prosecutrix herself.
PW2 Shri Hem Raj is the husband of the prosecutrix.
PW3 HC Sukhpal Singh , the Duty Officer, had registered the FIR Ex.PW3/A and had made an endorsement Ex.PW3/B on the Rukka.
PW4 Lady Constable Yogitra had taken the prosecutrix on 15-7-2011 for her medical examination. The sample seal and vaginal swab in sealed condition with the seal of AIIMS along with the MLC, as given by the doctor, were handed over by her to ASI Manju Bala ; seized vide memo Ex.PW4/A. PW5 Ct. Balbir Singh, on 15-7-2011 had joined the investigation with SI Sher Pal and went near Jalebi State vs. Ashu SC No. : 100/2013 Page No. 3 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
Chowk where the prosecutrix identified accused Ashu and he was apprehended. Accused was got medically examined and a blood pullanda-sealed with the seal of AIIMS, blood in gauze and a sample seal were given to him by the doctor which he handed it over to the Investigating Officer ; seized vide memo Ex.PW5/A. Accused was arrested in his presence vide memo Ex.PW1/D ; his personal search was conducted vide memo Ex.PW5/A and his disclosure Ex.PW1/F was recorded.
PW6 Dr. Vaishali, on 15-7-2011, had examined the prosecutrix vide MLC Ex.PW6/A. PW7 Dr. Hansraj Singh on 15-7-2011 had medically examined the accused and was of the opinion that there was nothing to suggest that accused was incapable of performing sexual intercourse in normal circumstances. He seized the exhibits and handed it over to the police with sample seal. He prepared the MLC Ex.PW7/A. PW8 SI Sherpal, on 15-7-2011, had recorded the statement Ex.PW1/A of the prosecutrix ; got her medically examined ; made endorsement Ex.PW8/A on the State vs. Ashu SC No. : 100/2013 Page No. 4 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
statement of the prosecutrix and got the FIR registered. Thereafter, the investigation was entrusted to ASI Manju Bala. He joined her and reached Jalebi Chowk where he arrested the accused and his arrest documents were prepared.
PW9 Ms. Chetna Singh, the Ld. Metropolitan Magistrate, on 16-7-2011, had recorded the statement under section 164 Cr.P.C of the prosecutrix and same is Ex.PW1/C (collectively).
PW10 W/SI Manju Bala, on 15-7-2011, was entrusted with the investigation of this case. She took into possession the exhibits pertaining to accused and even arrested the accused on the same day at the instance of the prosecutrix ; got him medically examined ; seized his exhibits vide memo Ex.PW9/A ; the clothes of the prosecutrix including chunni, she was wearing at the time of incident, were also seized vide memo Ex.PW1/B. She recorded the disclosure statements Ex.PW1/F, Ex.PW10/A and Ex.PW10/B of the accused and prepared pointing out memo Ex.PW1/E. On 16-7-2011 she got recorded the statement of State vs. Ashu SC No. : 100/2013 Page No. 5 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
the prosecutrix under section 164 Cr.P.C (Ex.PW1/C) on an application Ex.PW9/A. She also moved another application Ex.PW9/B for supply of the copy of such statement. She also proved the FSL report Ex.PW10/C by tendering it in the evidence. She identified the case property viz., clothes of the prosecutrix as Ex.P1, Ex.P2 and Ex.P3.
5. After examination of the prosecution witnesses, PE was closed ; the statement of accused was also recorded under section 313 Cr.P.C .
6. On the basis of the above evidence, the ld prosecutor argued that accused be convicted for the offences under section 376/511 IPC as well as under
section 323/341/34 IPC. However, the ld counsel for accused argued that accused be acquitted as there are material contradictions in the deposition of the prosecutrix and her husband and hence their statements be not relied upon.
I have also perused the entire material available on record.
Before giving any findings, it would be
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FIR No. : 183/2011
PS : Jaitpur, New Delhi.
appropriate to analyse the deposition made by the prosecutrix and her husband since the entire case hinges upon the depositions made by them.
The prosecutrix was examined as PW1 and she had deposed that she has been living at Madanpur Khadar, New Delhi for the last about 5 years and that her husband is working at Nehru Place, New Delhi. On 13th of a month in 2011, summer days, at about 5:30 AM she had gone to a common toilet at a MCD school situated in front of her house but found the said toilet closed. She then proceeded to an open area near the MCD school and sat there for easing herself. Four boys came there and one of them caught hold of her. She raised an alarm but he gagged her mouth and gave her beatings and forced her to move to the jungle area. On her refusal he again gave her beatings. He also threatened her to cause injury by knife and hence she scummed to his threat. He also asked her to give money. She tied the string of her salwar and ran towards the nala shouting Bachao-Bachao. An old man came there and on seeing him, all the four boys ran away from the spot. The present accused had caught hold of her State vs. Ashu SC No. : 100/2013 Page No. 7 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
leg but had not caused any beatings to her. Beatings were caused by other boys. She returned to her house and narrated the incident to her husband who contacted police. Her statement Ex.PW1/A was then recorded by the police ; her clothes i.e., Kameez, salwar and chunni were seized vide memo Ex.PW1/B ; her statement u/s 164 Cr.P.C was also recorded. The accused was arrested at her pointing out vide arrest documents Ex.PW1/D and pointing out memo Ex.PW1/E was prepared. She had identified her chunni Ex.P1, Salwar Ex.P2 and ladies shirt Ex.P3.
During her cross examination she deposed that the school was closed in the morning at 6 am and it was still dark. There was no toilet near the gate of the school. She narrated the incident to an old man and a lady. She admitted that no one had committed rape upon her, however, the boys, including the accused tried to take her to jungle which was around 50-100 meter away from the school.
PW2, Shri Hem Raj, the husband of the prosecutrix, deposed that on 13-7-2011 at around 5 am his wife, the prosecutrix, had gone to use the public toilet of State vs. Ashu SC No. : 100/2013 Page No. 8 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
MCD in front of his house. He had not gone with her. She came back at about 5:30 am in a state of shock and was feeling nervous. Two people of his locality were helping her. She informed that she was caught by four boys who wanted to forcibly take her to jungle area for raping her. He called the police on 100 number. Police visited his house at 6:30 am and had taken them to the police station. The prosecutrix was got medically examined and she identified one of the boys, namely, Ashu and he was apprehended by the police.
During his cross examination, PW2 deposed that the public toilet is around 10-20 meter, in front of his house and at the time of incident he was sleeping and did not hear the cries of his wife, the prosecutrix. She was brought by two person after the incident and she told that she was assaulted by four boys. He did not inquire the name and addresses of those two persons. He admitted that people of his locality also use the public toilet. The incident took place in front of Nagar Nigam School on a khet (field). He denied that he has previous enmity with the accused.
7. A bare perusal of the depositions of the State vs. Ashu SC No. : 100/2013 Page No. 9 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
prosecutrix and her husband amply proves that on 13-7-201 at around 5:30 am, the prosecutrix had gone to ease herself in an open field near MCD school. While she was easing herself, four boys came there and one of them had caught hold of her, gagged her mouth and had beaten her, asked her money and they tried to take her towards a jungle near school. However, she tied the string (naada) of her salwar and after mustering some courage ran towards her house, shouting Bachao Bachao. By chance an old man came there and on seeing him all the boys ran away from the spot. She was brought by the said old man and a lady to her house and she narrated the incident to her husband. Thereafter, they reported the matter to the police.
On 15-11-2011 the prosecutrix along with her husband went to the police station and made the statement on the basis of which FIR No. 183/2011 under section 376/511/323/341/34 IPC was registered at P.S Jaitpur, New Delhi. On 16-7-2011 the accused was arrested and his medical examination was conducted. The exhibits were seized by the Investigating Officer and were sent to the FSL. As per report Ex.PW10/C the semen could not be State vs. Ashu SC No. : 100/2013 Page No. 10 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
detected on any of the exhibits. However, even otherwise, the allegations of rape were never made by the prosecutrix against the accused.
The deposition of the prosecutrix find due corroboration not only from her statement Ex.PW1/A she gave to police and from her statement Ex.PW1/C (u/s 164 Cr.P.C) but also from the deposition of her husband who had fully supported his wife. She returned to her house and narrated the incident verbatim to her husband. Her husband has also deposed about the medical examination of the prosecutrix and arrest of accused person etc. During cross examination of the prosecutrix as well as of her husband no serious challenge was made qua the incident as no material suggestion has been given to them qua such incident.
Hence, considering the deposition of the prosecutrix and of her husband I am of the considered view that the prosecution had proved beyond doubt that the prosecutrix on 13-7-2011 at about 5:30 AM had gone to ease herself in an open space and was caught by the State vs. Ashu SC No. : 100/2013 Page No. 11 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
accused and his associates and that they had beaten her, as depicted in her MLC Ex.PW6/A wherein a 4 X 3 cm bruise of bluish colour is found at the right lateral leg on her person. Thus, the fact that the prosecutrix was wrongfully restrained and assaulted stands proved.
The only issue now is if the accused is to be held guilty for the offence under section 376/511 IPC or under section 354 IPC. It is clear from the deposition of the prosecutrix that the accused along with his associates was trying to take her to a jungle but his act was not complete and that the prosecutrix flee from his clutches and ran towards her house shouting Bachao-Bachao. Further on seeing an old man the accused along with his other associates did not follow her or made any further effort to take the prosecutrix to jungle area and rather they all ran away from the spot.
Here I intend to refer to "Aman Kumar And Anr vs State Of Haryana, AIR 2004 SC 1497, wherein the Hon'ble Supreme Court has held as under :
"There is no material to show that the accused were determined to have sexual intercourse in all events.
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FIR No. : 183/2011
PS : Jaitpur, New Delhi.
In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman.
Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter.
The reaction of the woman is very
relevant, but its absence is not
always decisive. Modesty in this
Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, State vs. Ashu SC No. : 100/2013 Page No. 13 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lowe; Shame- fast; Scrupulously chast."
Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when State vs. Ashu SC No. : 100/2013 Page No. 14 of 15 FIR No. : 183/2011 PS : Jaitpur, New Delhi.
he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her."
Hence, to my mind the facts suggest an indecent assault upon the prosecutrix and hence the case would be rather squarely covered under sections 323/341/354/34 IPC and I find accused Ashu guilty for the commission of the said offence(s) of wrongful restraint, causing her hurt and for indecent assault.
To come up for arguments on sentence. Announced in the open court today i.e. 12-12-2013 ( Yogesh Khanna ) ASJ-Spl. FTC / Saket Courts New Delhi.
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FIR No. : 183/2011
PS : Jaitpur, New Delhi.