Delhi District Court
State vs . Sarvesh Kumar on 29 May, 2017
IN THE COURT OF MS. CHETNA SINGH:MM/MAHILA COURT-01
(SOUTH-EAST DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. SARVESH KUMAR
FIR No: 679/2014
New Case No. 91237/2016
U/s : 341/354/354B IPC
P.S : SARITA VIHAR
Date of Institution : 13.01.2015
Date of judgment : 29.05.2017
JUDGMENT
1. FIR No. of the case : 679/2014
2. Date of the Commission : 09.10.2014
of the offence
3. Name of the accused : Sarvesh Kumar
S/o Sh. Pati Ram
R/o H. No. 124, Gali No. 5
Nambardaar Colony
Shakti Vihar, Meethapur,
New Delhi
4. Offence complained of : 354/354B/341 IPC.
5. Plea of accused : Pleaded not guilty
6. Final order : Acquitted.
FIR No. 679/14 State Vs Sarvesh kumar 1/9
BRIEF FACTS
1. The story of the prosecution is that on 09.10.2014 at about 09:00 PM under Sarita Vihar flyover, New Delhi within the jurisdiction of Police Station Sarita Vihar, the accused wrongfully restrained the way of the complainant, and also put his hands on her breast with intention to outrage her modesty and tore her clothes and hence, an FIR was registered U/s 354B IPC at PS Sarita Vihar. Matter was investigated and challan was filed in the Court on 13.01.2015. However at the time of framing of charge, after hearing of arguments, charge for offences U/s 354/354B/341 IPC was framed qua accused.
2. On the basis of the chargesheet, charge of offences U/s 354/354B/341 IPC was framed against accused Sarvesh Kumar and the charge was duly explained to accused in vernacular to which he pleaded not guilty and claimed trial on 15.10.2015. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In Order to prove the above said allegations against the accused person, the prosecution has cited 5 witnesses out of which 3 were examined and the formal witnesses for proving registration of FIR/ recording of statement U/s 164 CrPC/ registration of rukka/ Copy of FIR FIR No. 679/14 State Vs Sarvesh kumar 2/9 and Certificate U/s 65 B of Indian Evidence Act for FIR were admitted U/s 294 CrPC.
4. PW-1 HC Praveen was examined on 12.07.2016 wherein he deposed that On 09.10.2014 he was posted at PS Sarita Vihar as a HC. On the said day, he received a PCR Call vide DD No. 54A that under Flyover Sarita Vihar that lots of public persons were gathered at the spot and two ladies namely Ruby and Savitri were quarreling (gali galoch) with each other at the spot. He alongwith SI Dinesh Kumar tried to conciliate the matter between both the ladies but they said that they will complaint against each other at PS. After some interval both the lady came to the PS alongwith their relatives (family members). Both the lady has lodged complaint against each other and the clothes of both the ladies were torn when they came to the PS. Therefore IO/SI Dinesh Kumar recorded the statement of both the complainant. Thereafter IO/SI Dinesh Kumar arrested the accused vide arrest memo Ex.PW1/A bearing his signatures at point A and also prepared personal search vide memo Ex.PW1/B bearing his signatures at point A.
5. This witness was cross examined by Ld. Defence Counsel wherein he deposed that the accused had himself come to the Police Station and after that he was arrested.
6. PW-2 Ruby was examined on 12.07.2016 wherein she deposed that she was residing at address given and was doing household work for her livelihood. She deposed that on 09.10.2014 at about 09:00 p.m, when she was coming from her work and reached near Sarita Vihar flyover at that time some persons (5 persons) were present near a shop and then all of them namely Sarvesh Kumar, Sanjeev, Umesh, Sonu and Papu, caught hold of her and took her (gasithey hua) near the jungle. It was FIR No. 679/14 State Vs Sarvesh kumar 3/9 dark in the night and she was crying for help. Thereafter some person called at 100 number.
7. This witness was cross examined by Ld. APP for the State wherein admitted that accused Sarvesh had misbehaved with her and caught hold of her hand and tore her clothes and also pressed her breast and when she tried to run away, he pushed her and thrashed her and some passerby came to her rescue. She admitted that she made a call on number 100 and her statement was recorded which is Ex.PW2/A bearing her signatures at point A.
8. This witness was cross examined by Ld. Defence Counsel wherein she denied the suggestion that on the day of the incident, there was a quarrel between Savitri and her and she stated that she never made any call to number 100 and no PCR came. She admitted that her cloth were not torn as there was no quarrel. She admitted that she does not know the name of the person who made the call on number 100 and admitted that Police had reached the spot after 10-15 minutes of her call. She stated that no persons were at the spot as it was dark.
9. PW-3 IO/SI Dinesh was examined on 19.05.2017 wherein he deposed that on 09.10.2014 he was posted as a SI at PS Sarita Vihar. On that day he alongwith HC Parveen were on emergency duty from 08:00 a.m to 08:00 p.m and he received DD Entry No.54A regarding misbehaved with a lady under Sarita Vihar Flyover. Thereafter he alongwith HC Parveen reached at the abovesaid spot and after reaching there he found that two ladies were exchanging abusive language with each other and lots of public persons had gathered there. Thereafter they asked those ladies to give their statements but they denied the same and told them that they will give their statements after coming to the Police FIR No. 679/14 State Vs Sarvesh kumar 4/9 Station. Thereafter, they returned back to PS and about 09:00 -10:00 p.m two ladies came to Police Station and give their statements. Thereafter he endorsed the said complaint which is already exhibited Ex.PW2/A which bears his signatures at point B and prepared tehrir which is Ex.PW3/A bearing his signatures at point A. Thereafter he alongwith complainant went to the spot and prepared the site plan which is Ex.PW3/B bearing his signatures at point A. Thereafter he returned back to PS and called the accused in the PS. In the meantime, he received the copy of FIR and original tehrir after registration of FIR. Then the accused himself came to the PS then he arrested him on 10.10.2014 and prepared the arrest memo which is already Ex.PW1/A and also conducted his personal vide memo already Ex.PW1/B bearing his signatures at point B respectively. Then I recorded the statement of complainant u/s 161 Cr.PC.
Thereafter, on 16.10.2014 the statement of complainant u/s 164 Cr,PC was got recorded before the Magistrate and in her statement U/s 164 Cr.PC the complainant made allegations against four other persons namely Papu, Gulam, Sandeep and Umesh. Thereafter he started the investigation and interrogated Papu, Gulam and Umesh but no sufficient evidence was found against them and he filed the challan against the accused Sarvesh in the Court and other three accused persons namely Papu, Gulam and Umesh placed in Column no.12.
10. This witness was cross examined by Ld. Defence Counsel wherein he stated that the complainant had made one PCR call on the date of the incident and they reached the spot within 10 minutes and he was told that the incident took place between Savitri and Ruby and none of the parties were medically examined.
11. As all witnesses were examined by the Prosecution, PE was FIR No. 679/14 State Vs Sarvesh kumar 5/9 ordered to be closed on 19.05.2017. Statement of the accused U/s 313 CrPC was recorded on 23.05.2017 in which he stated that he does not want to lead defence evidence. Hence Defence evidence stands closed and matter was listed for final arguments.
12. Final arguments were advanced by Ld. APP for the State and by Counsel for accused. Heard. Considered.
REASONS FOR DECISION
13. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of Section 354 IPC which are as follows :
1. There must have been assault or use of criminal force on a woman;
2. Such assault or use of criminal force must have been made-
(a) With intention to outrage her modesty; or
(b) With knowledge that her modesty was likely to be outraged.
14. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of Section 354B IPC which are as follows :
1. Whoever assault or use criminal force or abets;
2. an act with intention to disrobe a woman;
FIR No. 679/14 State Vs Sarvesh kumar 6/9
3. or compel her to be naked.
15. Before appreciating the evidence as stated above in brief, it is necessary to state the law/ essential ingredients of Section 341 IPC which are as follows :
1. whoever voluntarily obstructs any person ;
2. from proceeding in any direction in which that person has a right to, proceed is said to cause wrongful restraint.
In light of the above mentioned ingredients, it is necessary to examine whether from the material on record, the offence U/s 354/354B/341 IPC against the accused is made out or not.
16. The main witness in the present matter is the complainant who was examined as PW-2 and stated that on the date of the incident five persons namely Sarvesh, Sanjeev, Sonu, Umesh and Pappu caught hold of her and dragged her towards the jungle. In her cross examination by Ld APP for the State she stated that accused Sarvesh had misbehaved with her and tore her clothes and pressed her breast and admitted that she had made a call on 100 number and also stated that some passerby came to her rescue.
17. When cross examined by Ld Defence counsel she stated that she never made any call on 100 number and no PCR came. She admitted that her clothes were not torn as there was no quarrel. She also admitted that she does not name of the person who made call to the police and again said that she had made a first call on 100 number and no other persons were present at the spot as it was dark. Thus in her cross FIR No. 679/14 State Vs Sarvesh kumar 7/9 examination she had contradicted herself completely.
18. Further contradictions can be noted in her statement Ex.PW2/A which states a different version wherein she had not mentioned the names of Sanjeev, Umesh, Sonu and Pappu. She had given her statement u/s 164 Cr,PC wherein she mentioned the names of Umesh, Sanjeev, Sonu and Pappu and stated that all five of them misbehaved with her.
19. Apart from the contradictions as noted above in the statements of the complainant herself, she has also not been supported by any other police witness. PW-1 HC Praveen who received the PCR call stated that when he reached the spot lot of public persons had gathered and two ladies namely Ruby I.e complainant and Savitri were quarreling with each other and their clothes were torn when they came to the police station. He has nowhere stated about the incident of misbehavior by the accused with the complainant. He has merely stated there was a quarrel between the complainant and one Savitri.
20. PW-3 who is the IO of the present case also deposed that when he alongwith HC Praveen reached the spot he found that two ladies were abusing with each other and lot of public persons had gathered. This is in contradiction with the statement of the complainant who stated that no public persons were present at the spot as it was dark at night. Thus, the complainant has not been corroborated even by the formal police witnesses and she has contradicted herself in her examination in chief as well as in her cross examination. Thus, her testimony does not inspire confidence.
21. Apart from the complainant, no other public witnesses has been examined despite IO stating that lot of public persons had gathered at the FIR No. 679/14 State Vs Sarvesh kumar 8/9 spot. Thus, it cannot be said that any of the allegations u/s 354/354B/341 IPC have been proved by the prosecution beyond a reasonable doubt and hence the accused namely Sarvesh is acquitted U/s 354/354B/341 IPC.
Ordered accordingly.
Announced in the Court Court on 29.05.2017 (Chetna Singh) Metropolitan Magistrate Mahila Court-01/SED/Saket New Delhi/ 29.05.2017 FIR No. 679/14 State Vs Sarvesh kumar 9/9