Delhi District Court
State vs Bashiruddin @ Raja S/O Qamruddin R/O D on 10 April, 2012
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IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
FIR No. 386/2006
State Vs Bashiruddin @ Raja s/o Qamruddin r/o D
21, Gali No.2, Khajuri Khas, Delhi
Police Station Khajuri Khas
Under Section 342/354/506 IPC
ORDER ON THE POINT OF SENTENCE
10.04.2012
Pre: Ld. APP for the state.
Convict Bashiruddin is on bail.
Sh. Adarsh Kumar, ld. counsel for convict.
Ld. APP for State submits that since the offence has been proved against the
convict Bashiruddin under section 342/354/506 IPC. Ld. APP for the State further
submits that he must be sentenced according to provisions of law to teach a lesson to
such uncivilized person. On this ground he has prayed for maximum sentence to the
convict.
On other hand, Ld. counsel for convict submits that he is a very poor person and
he is a TSR driver by profession and there is no previous criminal antecedents against
him. Ld. counsel for convict further submits that convict is of 51 years of age and he is
having responsibility of his family including three minor children. Ld. counsel for
convict further submits that he has learnt a lesson that how to live in a civilized
society. Ld. Counsel for convict further submits that convict would not repeat such
SC No.19/2011
State Vs. Bashiruddin 1/2
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type of offence in future and he will live peacefully in the society. Ld. counsel for
convict has requested for lenient view and requested to release the convict for the
sentence already undergone.
Ld. counsel for convict had moved an application under section 4 of Probation
for releasing the convict on probation on the ground that the convict has liability of his
family and convict undertakes to keep/maintain good behaviour and conduct during
the probation period. Copy supplied.
Probation Officer, North East District was directed to submit his report in
response to the application of convict. Probation Officer filed his report, report
perused, wherein it has been submitted that convict belongs to a poor family and he is
first offender and benefit of probation may be considered.
In view of submission of Ld. counsel for convict and perusal of report of
Probation Officer, application of convict is hereby allowed. Accordingly, convict be
released on probation for a period of one year on his furnishing probation/personal bond
in sum of Rs.10,000/ with one surety of like amount for offence u/s 342/354/506 IPC.
Accordingly, convict Bashiruddin be released on probation for a period of one
year on his furnishing probation/personal bond in sum of Rs.10,000/ with one surety of
like amount for offence u/s 342/354/506 IPC. Orders accordingly.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT
ON THIS 10.04.2012
(RAMESH KUMAR - II)
ASJ01/N.E.
KKD COURTS/DELHI.
SC No.19/2011
State Vs. Bashiruddin 2/2
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IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0128822007
Sessions Case No. 19/2011
Assigned to Sessions. 15.03.2011
Arguments heard on 29.03.2012
Date of Judgment 31.03.2012
FIR No. 386/2006
State Vs Bashiruddin @ Raja s/o Qamruddin
r/o D21, Gali No.2, Khajuri Khas, Delhi
Police Station Khajuri Khas
Under Section 342/354/506 IPC
JUDGEMENT
1. Vide this judgment I shall dispose of this case in which Station House Officer of Police Station Khajuri Khas had filed a challan vide FIR No. 386/2006 dated 05.09.2006 u/s 354/342/506 IPC for the prosecution of accused Bashiruddin in the court of ld. Metropolitan Magistrate and section 207 Cr. P.C. had already been complied with by Ld. M.M. Since, this court is designated court for trial of the cases pertaining to child victims, hence this case was sent by Ld. District Judge/Incharge, North East District, Karkardooma Courts to this court for trial. SC No.19/2011 State Vs. Bashiruddin 3/2 4
2. In brief, the facts of the case are that on 04.09.2006 a DD No.35A was recorded at police station Khajuri Khas regarding molestation of a girl at House No.D51, Gali No.02, Khajuri Khas, Delhi and same DD was assigned to SI Satender Tomar to take action into the matter. On receipt of DD, SI Satender Tomar along with Ct. Indresh reached at the spot where victim Km. Himani aged 1012 years along with her mother met them. Thereafter, victim was got medically examined from GTB Hospital vide MLC Ex.PW2/A. SI Satender Tomar had got recorded statement of victim Ex.PW2/B and made endorsement upon the same for registration of FIR at PS. Accordingly, FIR No. 386/2006 dated 05.09.2006 u/s 342/354/506 IPC was registered against accused Bashiruddin. During the course of investigation police arrested accused Bashiruddin.
CHARGE:
3. On the basis of material available on record this court vide order dated 04.05.2011 framed a charge against accused Bashiruddin for the offence punishable u/s 342/354/506 IPC to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 07 witnesses namely PW1 Ct. Hari Shankar, PW2 Ms. Himani, PW3 Smt. Prem Lata, PW4 Retired SI Ramanand, PW5 Ct. Indresh Kumar, PW6 Dr. Sruthi Bhaskaran and PW7 SI Satender Tomar. SC No.19/2011 State Vs. Bashiruddin 4/2 5
5. PW1 Ct. Hari Shankar. This is the witness of arrest of accused. This witness has proved arrest memo Ex.PW1/A, personal search memo ExPW1/B and disclosure statement Ex.PW1/B of accused Bashiruddin.
6. PW2 Ms. Himani is a material witness being victim. This witness has deposed that on 04.09.2006 at about 8:00 pm or 8:30 p.m, she was playing outside her house along with the three children of accused and they were cracking fire in the gali. This witness has further deposed that they all upstairs at the house of accused i.e H. No.D 21 at the instance of his children while cracking fires. Thereafter, they started paying carom inside the room at ground floor of house of accused.
7. This witness has further deposed that at that time accused was also present and accused directed his daughters to play outside the house in gali and he further directed his son to take position at the door of that room and accused forced me to play with him. This witness has further deposed that accused had also directed his son to lock the door of that room and son of accused locked the door from outside. This witness has further deposed that accused started to open her Tshirt and jeans with an intention to outrage her modesty and in order save herself, she had thrown tiffin case upon accused and she started weeping. This witness has further deposed that accused had put his hand upon her face and breast and when she had started to raise alarm immediately accused sat down on her breast and put his hand on her mouth to keep her silent.
SC No.19/2011 State Vs. Bashiruddin 5/2 6
8. This witness has further deposed that she had narrated aforesaid facts of incident to her mother and she gave beatings to accused and called police. This witness has further deposed that accused had extended threat to kill her if she raised alarm when accused was opening her wearing TShirt and jeans with bad intention.
9. This witness has proved her MLC vide Ex.PW2/A and her statement Ex.PW2/B.
10.PW3 Smt. Prem Lata, mother of victim is a material witness. This witness has deposed that during the search of her daughter Himani, she reached at the ++tenanted house of accused i.e H. No.D20, or D21 Gali No.02, Khajuri Khas, Delhi, at that time, son of accused was standing at the gate of tenanted room. This witness forcibly entered into the room and found accused sitting on the chest of victim. Thereafter, this witness had slapped accused as she had seen him in an objectionable situation. This witness has further deposed that victim had told her that accused had outraged her modesty by opening her wearing Tshirt and jeans etc. This witness had called the police at 100 number.
11.PW4 Retired SI Ramanand is a formal witness being Duty Officer. This witness has proved copy of FIR Ex.PW4/B.
12.PW5 Ct. Indresh Kumar. This witness has remained with the I.O. during the investigation. In his presence statement of victim Ex.PW2/B was recorded by I.O. and he had got recorded FIR of the present case from police station. This witness SC No.19/2011 State Vs. Bashiruddin 6/2 7 has also accompanied lady constable to GTB hospital for medical examination of victim and victim was examined vide MLC Ex.PW2/A. After medical examination of victim, this witness had received one sealed parcel containing slides along with sample seal from hospital staff which was seized by I.O. vide seizure memo Ex.PW5/A.
13.PW6 Dr. Sruthi Bhaskaran. This witness has proved MLC of victim vide Ex.PW2/A and emergency paper of aforesaid victim vide Ex.PW6/A on behalf of Dr. Harsha.
14.PW7 SI Satender Tomar is a material witness being I.O. This witness on receipt of DD No.35 A reached at the spot and thereafter, took the victim to GTB Hospital and got her medically examined vide MLC Ex.PW2/A. This witness has recorded statement of victim vide Ex.PW2/B and got the FIR u/s 354/342/506 IPC registered through constable.
15.During the course of investigation, this witness has prepared site plan of place of occurrence vide Ex.PW7/A. This witness had seized slide and sample seal vide seizure memo Ex.PW5/A.
16.During the course of investigation, I.O. had arrested accused Bashiruddin @ Raja vide arrest memo Ex.PW1/A and personal search memo Ex.PW1/B. This witness had also recorded disclosure statement vide Ex.PW7/B. SC No.19/2011 State Vs. Bashiruddin 7/2 8
17.This witness has been cross examined by ld. Defence counsel. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
18.After prosecution witnesses, statement of accused u/s 313 Cr. P.C. was recorded wherein the accused denied all the circumstances and evidence put to him and claimed to be innocent. Accused has stated that victim used to put her leg in dalia and scatter household articles in his house and victim is a thief by nature and he had asked victim to go to her house. Accused had preferred to lead the defence evidence. DW1 Smt. Saira was examined in the defence of accused.
19.DW1 Smt. Saira, wife of accused Bashiruddin has deposed that the victim used to play with her children and her neighbours used to ask her not allow victim to play with her children as she used to steal articles from the houses. This witness has further deposed that her two daughters were present at her house on 04.09.2006 in the evening time.
20.After D.E. was closed and case was fixed for arguments. ARGUMENTS:
21.Ld. APP for State, Sh. Zenual Abedeen argued that the case under section 342/354/506 IPC was registered against accused Bashiruddin on the complaint of victim. Ld. APP for the State further argued that PW2 victim and PW3 Smt. Prem Lata, mother of victim are most material witnesses. Ld. APP for the State pointed SC No.19/2011 State Vs. Bashiruddin 8/2 9 out that PW2 has supported the case of prosecution and her testimony proved the allegations leveled against accused. In her cross examination, she has denied that no incident had taken place with her or that accused had not committed any offence with her.
22.PW2 has deposed in her testimony that accused had put his hand upon her face and breast and accused had extended threat to kill her if she raised alarm when he was opening her wearing TShirt and jeans with bad intention. This witness has correctly identified the accused in the court. PW3 corroborate the testimony of PW2. Ld. APP further submits that since the statement of prosecutrix support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 342/354/506 IPC. Ld. APP for state further argued that statements of PW2 and PW3 have supported the case of prosecution, so these statements are sufficient to convict the accused for offence charged as prosecution has proved its case beyond reasonable doubt.
23.On the other hand, Ld. counsel for accused argued that accused has been implicated falsely in the present case as there was a dispute between accused and mother of victim on issue of throwing of household articles of accused by victim.
24.Ld. counsel for accused further argued that there is no medical corroboration in this case. Ld. counsel for accused further argued that accused was not caught hold at the spot. Hence, accused was not present at the alleged time and date. On these SC No.19/2011 State Vs. Bashiruddin 9/2 10 grounds, Ld. counsel for accused is pressing for acquittal of accused. PERUSAL OF RECORD/OPINION:
25.Arguments heard. Record perused. On perusal of record it is revealed that on the statement of victim Ex.PW2/B, FIR No.386/2006 dated 05.09.2006 u/s 342/354/506 IPC was recorded at police station Khajuri Khas against accused Bashiruddin. Accordingly, accused Bashiruddin @ Raja was arrested vide arrest memo Ex.PW1/A and personal search memo Ex.PW1/B.
26.On perusal of record, it is further revealed that site plan of the place of incident was prepared by the Investigating Officer vide Ex.PW7/A at the instance of victim.
27.Further perusal of record shows that accused in his statement u/s 313 Cr.P.C. has deposed that he is innocent.
28.On perusal of record, it is further revealed that PW6 Dr. Sruthi Bhaskaran. has proved MLC of victim vide Ex.PW2/A and emergency paper of aforesaid victim vide Ex.PW6/A on behalf of Dr. Harsha.
29.Before coming to any conclusion it would be relevant to discuss sections of charges. The relevant section 354, 506, 342 IPC are being reproduced which are as under: Section 354 IPC "Assault or criminal force to woman with intent to outrage her SC No.19/2011 State Vs. Bashiruddin 10/2 11 modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Section 342 IPC Punishment for wrongful confinement. Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
30.Since in the present case, the material PWs i.e. complainant/Victim - has identified the accused as culprit and testimony of complainant has proved that accused Bashiruddin had rubbed put his hands on her breast and tried to open her wearing TShirt and Jeans which is sufficient ingredients to convict the accused persons under section 354 IPC.
SC No.19/2011 State Vs. Bashiruddin 11/2 12
31.Hon'ble Supreme Court in "Tarakeshwar Vs. State (2006) 8 SCC 506" has held that:
"For an offence under section 354, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. 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."
32.In Raja Pandurang v State (2004)4 SCC 371: AIR 2004 SC 1677: 2004 Cr. LJ 1441 the apex court has laid down the essential ingredients of offence under sec. 354 as under :
(a) that the assault must be on woman;
(b) that the accused must have used criminal
force on her; and
(c) that the criminal force must have been
used on the woman intending thereby to
outrage her modesty or knowing that his
acts would likely to outrage her modesty.
Test of outrage of modesty. The test of outrage of modesty is whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of a woman.
33.Hon'ble Supreme Court in 'Ram Das Vs. State, AIR 1954 SC 711' wherein it has held that :
SC No.19/2011 State Vs. Bashiruddin 12/2 13
"Intention or knowledge being the essential ingredients of the offence, where an accused is tried for offence under this section and prosecution is succeeding in proving the assault by accused, the next question that arises to be considered is whether he did so with intend to outrage the woman's modesty or with knowledge that it would be outraged."
34.Since in the present case from the act of accused fact of knowledge and culpable intention on the part of accused has been proved successfully by the prosecution.
35.Since, accused is the neighbour of victim. Neighbour is expected to take care and protection of minor children in his neighbourhood so that any kind of incident with minor children may be prevented. In the fact of the present case accused who is almost 50 years old and his conduct is very heinous act causing damage to pride and owner of minor girl child which is not permissible in the eyes of law.
36.After taking into consideration requirement of section 354 IPC, this court comes to conclusion that prosecution has proved the charges under section 354 IPC against accused Bashiruddin beyond reasonable doubt.
37.So far as the offence u/s 506 IPC is concerned, there must be something on record which may suggest that accused had put criminal intimation upon PW3 to meet out the requirement of section 503 IPC. From the testimony of PW2 complainant it has come on record that accused had threatened the complainant to kill if she would raise alarm when he was opening her wearing TShirt and Jeans with bad intention. On the day of incident victim was minor of 14 years. Hence, after taking into SC No.19/2011 State Vs. Bashiruddin 13/2 14 consideration, testimony of PW2 and PW3 and record and arguments, this court comes to conclusion that prosecution has prove the charges under section 506 IPC against accused Bashiruddin beyond reasonable doubt.
38.So far as the offence 342 IPC is concerned, it is proved from the testimony of PW3 that when she reached at the tenant house of accused son of accused was standing at the gate of tenanted room and she entered into the room forcibily and saw that accused was sitting on the chest of victim. Conduct of the accused shows that he had restrained the victim unlawfully while keeping her confining in his room by putting security of his on at his door. No reason has been assigned by the accused as to why he has been implicated in the present case. Since the testimony of PW2 and PW3 inspired the confidence of this court whereby the act of accused is squarely covered by section 342 IPC.
39.In the lights of above considerations, this court comes to the conclusion that the prosecution has proved the charge against accused Bashiruddin u/s 342/354/506 IPC beyond reasonable doubt. Accordingly, under the facts and circumstances of the case, this court held the accused Bashiruddin guilty u/s 342/354/506 IPC. PRONOUNCED IN THE OPEN COURT ON THIS 31.03.2012 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.19/2011 State Vs. Bashiruddin 14/2