Delhi District Court
State vs . Nitin Kumar on 9 May, 2013
FIR No. 122/11 P. S. Lajpat Nagar
State Vs. Nitin Kumar
IN THE COURT OF Ms. MONIKA SAROHA :
M.M.(SOUTH EAST DISTRICT), SAKET NEW DELHI
State Vs. Nitin Kumar
FIR NO. : 122/11
P.S. : Lajpat Nagar
U.S. : 354 IPC
JUDGMENT
a. Date of its institution : 27.06.2011
b. Name of the complainant : Ms. Jyoti Devi W/o Sh. Mukesh
Kumar R/o Village Bhushahi,
District Muzaffarpur, Bihar.
c. Date of commission of
offence : 30.05.2011
d. Name of the accused : Nitin Kumar S/o Sh. Gora Bahadur
Singh R/o Village Rotapur, PS
Saraini Distt. Raibareli UP.
e. Offence complained of : U/s 354 IPC
f. Plea of accused : Pleaded not guilty
g. Case reserved for orders : 12.04.2013
h. Final order : Convicted
i Date of such order : 09.05.2013
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FIR No. 122/11 P. S. Lajpat Nagar
State Vs. Nitin Kumar
BRIEF FACTS OF THE CASE
1. The accused in this case is a middle aged man and the victim is also a middle aged woman whose husband was known to the accused.
2. It is the case of the prosecution that on 30.05.2011 at 10.30 pm inside the Safal Dairy booth no. 81096 Jal Vihar, Lajpat Nagar (hereinafter referred to as "spot") the accused used criminal force against the victim with intention to outrage her modesty. It is on these facts that the present FIR was registered and the machinery of the criminal justice system was set into motion by the victim.
3. After completion of the investigation, the charge sheet was filed in the Court.
Copies were supplied to the accused. Thereafter, Ld. Predecessor of this court had proceeded to frame charge for offence U/s 354 IPC against the accused. The accused pleaded not guilty to the offences and claimed trial. This charge was framed on 14.09.2011.
4. In support of its case, the prosecution was directed to adduce evidence. The prosecution examined four witnesses. After conclusion of evidence, PE was closed. The gist of the deposition of the prosecution witnesses is discussed in the paragraphs that follow:
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FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar EVIDENCE
5. PW1 Anil Kumar though a prosecution witness did not support the prosecution case at all.
6. PW2 Smt. Jyoti is the victim. She deposed that in the year 2011, her husband was employed with the accused to work at the spot which was a mother dairy booth and she along with her husband and accused also used to reside inside the booth. According to her on 30.05.2011, at around 10.30 pm when she started cooking dinner she realized that there was no LPG gas, so on the asking of the accused her husband had gone to a hotel to bring food. According to her, after her husband had so left, she was sitting outside the booth when the accused called her inside and started kissing her at the same time rubbing her breast against her wishes. She has deposed that the accused also tried to lift the sari that she was wearing and she raised alarm for help. According to her, thereafter her husband came back who then apprehended the accused after which she called the police and the police reached the spot. According to her the police then recorded her statement Ex.PW2/A and took her to hospital for examination but she refused to be medically examined. In her crossexamination no material contradiction emerged.
7. PW3 Mukesh Kumar is the husband of the victim. He also supported the testimony of the victim. He stated that he was employed at the mother dairy booth by the accused and also used to reside inside the booth. He has deposed that on the Page No. 3 of 8 FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar night of the incident upon suggestion by the accused he had gone to purchase food as there was no LPG gas to cook food. According to him then he reached back at the spot his wife told him that the accused had misbehaved with her so he apprehended the accused and called the police, after which the police came and arrested the accused vide memo Ex.PW3/A bearing the signatures of this witness at point A. This witness remains firm despite his crossexamination.
8. PW4 HC Yogesh Kumar is the investigating officer. He has stated that on 30.05.2011 on receiving DD no. 44A he along with HC Parveen reached the spot where he met the victim, her husband Mukesh Kumar and the accused who had already been apprehended by Mukesh Kumar. He has deposed that thereafter in the presence of a female police official he recorded the statement of the victim, Ex.PW2/A bearing his signatures at point A and B upon which he prepared the rukka Ex.PW4/A and sent the same for registration of FIR through HC Praveen. Thereafter this witness arrested the accused vide memo Ex.PW3/A bearing his signatures at point B.
9. No other witness was examined by the prosecution and PE was closed. Statement of the accused u/s 313 CrPC was recorded in which the accused admitted that the husband of the victim was working with him in 2011. The defence taken by him is that on the night of the incident victim and her husband came to the spot when he was sleeping inside the Safal Dairy Booth (spot) and asked him to let them enter the Page No. 4 of 8 FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar booth and when he did not let them enter, they called the police. APPRECIATION OF EVIDENCE
10. Coming now to the appreciation of evidence led by the prosecution for it is on the evidence of the prosecution and its strength that the fate of this case depends.
11. The complainant has clearly deposed that as on the night of 30.05.2011 when her husband was away the accused started kissing her and rubbed her breast. She has also deposed that he lifted her saari and she cried for help. She has stated that in the meanwhile her husband reached at the spot and apprehended the accused. This is the gist of the allegations against the accused. Now, even in her original complaint to the police, given soon after the incident, the victim has deposed on similar lines. There is no contradiction between her statement given to the police and her examination before the court. She remains coherent and firm in her testimony. In her crossexamination also no material contradiction could be brought out regarding the manner of commission of offence against her. However the firm deposition of the victim clearly mentions the act of the accused. The victim has deposed without any contradiction that the accused kissed her, rubbed her breasts and lifted her sari. These acts would certainly take place only when force is used upon the victim. Further no intention other than that of outraging the modesty of victim can be attributed to this act. The victim was a married lady and wife of the acquaintance of the accused, thus he very well knew that such an act of his would Page No. 5 of 8 FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar outrage her modesty.
12. Even though PW Mukesh is not an eye witness to the whole incident, his testimony further corroborates that of the victim to some extent. His testimony also establishes that victim was alone with the accused at the spot. Further his testimony establishes that the accused was initially apprehended by him and he handed over the accused to the police.
13. Further in his statement u/s 313 CrPC the accused has even admitted that he was residing inside the Safal Dairy Booth (spot). The arrest of the accused from the spot in the presence of the victim and her husband is duly proved by the arrest memo Ex.PW3/A bearing the signatures of the victim and her husband besides that of the IO. Now, these documents have been proved to be duly executed soon after the incident. In fact the accused has not even denied his arrest anywhere. Thus, the presence and arrest of accused from spot is duly proved.
14. Thus from the testimony of the victim and her husband read with the deposition of the IO, it is established that the accused used criminal force upon the victim with intent to outrage her modesty.
15. Now the defence has not been able to create any dent in the prosecution story. The defence taken by the accused is that the husband of the victim had a dispute over his salary with the accused and that is why the accused has been falsely implicated. This defence is revealed from the suggestions put to the public witness Page No. 6 of 8 FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar during their crossexamination. However, while giving these suggestions, the accused has himself admitted that the husband of the victim was working for him and was drawing certain salary from the accused as only then a salary dispute can exist.
16. Infact, the defence of the accused has been changing at different stages of trial. Interestingly, while at the stage of crossexamination of the victim, the defence taken is that husband of the victim had a salary dispute with the accused, in the statement u/s 313 CrPC, the defence taken is that the husband of the victim demanded Rs. 40,000/ from the accused which he did not give because of which he was implicated in this case. Further at the stage of defence evidence, the defence witness Praveen who is none else than the brother of the accused has deposed that the victim and her husband came to the spot, demanded a loan of Rs.25,000/ from the accused and when he did not give the loan he was falsely implicated.
17. Nowhere while crossexamining the public witnesses (the victim and her husband) it was suggested to them that they had come to the Dairy when accused and his brother were sleeping inside it. Even in his statement u/s 313 CrPC, the accused has not stated that his brother was sleeping with him inside the Dairy. However, suddely at the stage of defence evidence it has been stated that one Praveen was also present at the spot with the accused. This defence witness has stated that a loan of Rs.25,000/ has been demanded whereas as mentioned above, Page No. 7 of 8 FIR No. 122/11 P. S. Lajpat Nagar State Vs. Nitin Kumar the accused has stated that a loan of Rs.40,000/ was being demanded and earlier at the stage of crossexamination, the defence is that some arrears of salary were being demanded. Thus, this defence witness, DW1 Praveen does not inspire any confidence. His presence at the scene has nowhere been mentioned till even the stage of recording of statement u/s 313 CrPC. Thus, his testimony appears to be an afterthought concocted at the last stage of trial in order to save the accused.
18. Thus, even though PW1 Anil Kumar has turned hostile and it could not be specifically proved whether accused was working in the Safal Dairy Booth, it stands proved from the testimony of the victim, her husband and the statement u/s 313 CrPC that indeed accused was in possession of the Dairy on the night of 30.05.2011 in one capacity or the other.
FINAL ORDER
19. Therefore, as mentioned above from the coherent testimony of the victim it is clearly established that the accused used criminal force upon her with intent to outrage her modesty. Accordingly, in view of the discussion above, accused is convicted for the offence u/s 354 IPC.
20. Let the accused be heard on the point of sentence separately.
Announced and dictated in (MONIKA SAROHA)
the open Court on 09.05.2013 MM/Mahila Court/SED/Saket
New Delhi.
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