Delhi District Court
State vs . Yogender Bhardwaj on 18 September, 2012
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. YOGENDER BHARDWAJ
FIR No. 724/05
P.S. : Malviya Nagar
U/S 354/341/506 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE : 21.10.2005
2. SERIAL NUMBER OF THE CASE : 209/2/05
3. DATE OF COMMISSION OF OFFENCE : 15.08.2005
4. NAME OF THE COMPLAINANT :Vinita
5. NAME OF THE ACCUSED & ADDRESS : Yogender Bhardwaj @
Raju S/o Sh. Naresh
Bhardwaj, R/o H. NO.
426, Chirag Delhi Village,
New Delhi.
6. OFFENCE COMPLAINED OF :U/S 354/341/506 IPC
7. THE PLEA OF THE ACCUSED : Pleaded not guilty.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 2 8. DATE OF RESERVE OF JUDGMENT : 21.07.2012 9. THE FINAL JUDGMENT : Convicted u/s 354 & 341 IPC acquitted u/s 506 IPC. 10.THE DATE OF FINAL JUDGMENT :18.09.2012 BRIEF REASONS FOR DECISION OF CASE:
1. The case of the prosecution is that on 15.08.2005 at about 1.30 pm in front of H. No. 429C, Near Sandela Cook Chowk, Chirag Delhi within the jurisdiction of PS Malviya Nagar, accused Yogender Bhardwaj assaulted and used criminal force against complainant Vinita with intention to outrage her modesty; wrongfully restrained the complainant from going in a direction where she was entitled to move; criminally intimated the complainant by threatening to kill her in case she disclosed the said incident to anyone and thereby committed an offence punishable u/s 354/341/506 IPC. The FIR was registered on the complaint made by the complainant against the accused and investigation was carried out.
2. Charge sheet under Section 354/341/506 IPC was filed in the court; accused was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 16.01.2007, charge for offence under Section 354/341/506 IPC was served upon accused to which he pleaded not guilty and claimed trial.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 3
3. In order to prove its case, the prosecution has examined five witnesses and the prosecution evidence was closed vide order dated 29.08.2011.
4. PW1 HC Fateh Singh deposed that on 15.08.2005 he was posted as DO at PS Malviya Nagar. On that day at about 2.30 pm, on receipt of rukka through Ct. Subhash Chand sent by JC Jalbir, he registered the case FIR No. 724/05 vide Ex. PW1/A and made endorsement on the rukka vide Ex. PW1/B. Thereafter, he gave the copy of FIR and original rukka to Ct. Subhash Chand.
5. PW2 Ct. Subhash Chand deposed that on 15.08.2005 he was posted at PP Sheikh Sarai, PS Malviya Nagar. On that day at about 1.40 pm, on receipt of DD No. 6 he along with HC Jalbir Singh reached at H. No. 429, Chirag Delhi where complainant Vinita met them. IO recorded her statement and prepared rukka and same was given to him for registration of FIR. He took the same at PS Malviya Nagar and after getting the present FIR registered, he came back at the spot and handed over the copy of FIR and tehrir to the IO. IO called the accused Yoginder (correctly identified) from his residence bearing H. No. 426 in the same locality of the complainant, and arrested him in the presence of the complainant vide arrest memo Ex. PW2/A and conducted his personal search vide memo Ex. PW2/B.
6. During his cross examination, he stated that the mother of the complainant was St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 4 present when they reached at their house. He reached at the PS at 2.10 pm with rukka. The accused was taken for medical examination at AIIMS and they reached there at 3.30 pm. The accused was arrested after 2.30 pm. He reached the PS with rukka on scooter and he came back by the same mode at the spot. He stayed at the spot along with IO till 2.45 pm and thereafter he went to hospital. After medical examination of accused, he took the accused to PS Hauz Khas lock up at about 3.40 pm. He denied the suggestion that he was deposing falsely or that no proceedings were conducted in his presence.
7. PW3 HC Jalbir Singh deposed that on 15.08.2005 he was posted at PP Sheikh Sarai, PS Malviya Nagar. On that day at about 1.40 pm, on receipt of DD No. 6 he along with Ct. Subhash Chand reached at H. No. 429 where complainant and her mother met them. He recorded the statement of complainant vide Ex. PW3/A and prepared rukka vide Ex. PW3/B and gave the same to Ct. Subhash Chand who went to PS for registration of FIR and came back at the spot along with copy of FIR & rukka, and handed over the same to him. He deposed that in the meantime he prepared the site plan vide Ex. PW3/C. He called the accused Yoginder (correctly identified) from his residence bearing H. No. 426 which was opposite to the house of the complainant. He arrested the accused and his personal search was conducted vide memo Ex. PW2/A & B. He recorded the statement of witnesses. Accused was sent to hospital for medical examination St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 5 and then sent to lock up. After completion of investigation, he submitted the challan for trial.
8. During his cross examination he stated that he used his private motorcycle when he reached village Chirag Delhi after receipt of DD. Const. Subhash had also accompanied him as a pillion rider. It took 45 minutes in sending rukka to PS through Const. Subhash and in getting the FIR registered. In the meanwhile he prepared the site plan. He did not make enquiries from the nearby shops. He did not ask the complainant as to what articles she had to gone to bring. It took about 30 minutes to prepare site plan and during this period complainant and her mother remained all along with him. He did not make enquiries from the nearby house although gali is a thorough fare and people keep on coming and going but he did not make any enquiry from anyone. He reached the Police Post Sheikh Sarai at 3.40 p.m. Police Post is at distance of ½ km from the spot. He denied the suggestion that complainant and her mother were taken to the PS, or that statement of complainant was recorded in the PS itself. No person was present at the spot when he prepared the site plan. He denied the suggestion that he was deposing falsely.
9. PW 4 Smt. Maya Devi is the mother of the complainant. She deposed that on 15.08.05 at about 1:35 pm her daughter Vineeta went to the shop to purchase St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 6 some items. She was afraid when she came back to house and she told her that when she was coming back from the shop, the accused Yogender Bhardwaj @ Raju (correctly identified) met her in a drunken condition. He stopped the way of her daughter and caught hold of the hand of her daughter forcibly and tried to take her to the corner. She released her hand from the accused and came back to the house. Meanwhile, accused also came back to his house. She informed the police at 100 number. She stated to the accused that he has not done the right thing. Police came to her house. She along with her daughter Vineeta and accused Yogender went to the police station. Police recorded the statement of her daughter Vineeta, and police had also recorded her statement. Accused threatened to her and her daughter that whenever he will be released from the JC, he will kill her and her family members.
10. During her cross examination, she stated that they reached in PS at about 2:00 pm. It took one hour for recording of her statement and statement of Vineeta by the police. Her husband was not present at the time of recording of statement. Her husband is working in Government Department. However, she does not remember where her husband is working. They went to PS in Government vehicle along with police. Only one police officer came to her residence. She had stated to the police that accused threatened to kill them on being released. No public person was present when police came to her house. There are St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 7 residential house near her residence. Her daughter Vineeta was alone when she went to shop. She denied the suggestion that on that day, the shops were th closed on the occasion of 15 August. She informed the police on 100 number from her MTNL phone installed in her residence. There are two shops near the place of incident. The way is public gali and the people keep coming and going. The place of occurrence is surrounded by residential area. There is a vegetable shop and Sarela school near the spot. Her daughter did not tell her as to which shop she went to purchase articles. She admitted that her husband filed a criminal case against the father of the accused. She does not remember the time when the case was registered against the accused's father. She admitted that they do not have good relations with the accused and his family. She denied the suggestion that accused and his family members are their relatives. However, she admitted that her husband, and the accused's father are pujari's at the Kalka Mandir. She denied the suggestion that due to their strained relations with the accused and his family members, the accused has been falsely implicated in the present case. She denied the suggestion that she was deposing falsely.
11. PW5 Ms. Vinita is the complainant. She deposed that on 15.08.2005 she had gone from her home for shopping and she was returning back to her house after purchasing some goods. When she reached near Sarela Kuan Chowk, the St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 8 accused Yogender @ Raju @ Kalia restrained her way and held her right hand and started dragging her forcefully. When she tried to get her hand released, the accused did not release her hand. Thereafter she somehow managed to release her hand, and rushed towards her house. She narrated the whole incident to her mother. Her mother called the police by dialing 100. Her mother tried to mediate the matter on which the accused threatened them as "agar koi karyawahi karai to jab bhi choot kar ayunga to goli maar dunga". Police reached the spot and her statement was recoded vide Ex. PW3/A.. The incident took place at about 1.30 p.m. Police prepared site plan at her instance. Accused Yogender (correctly identified) was in drunken condition. He was arrested and his personal search was conducted vide memos Ex. PW2/A and PW2/B.
12. During her cross examination she stated that there are confectioner's shops as well of that of vegetables seller near the place of incident. There are other two shops nearby the shop of one Billu. The gali was a public lane and people were coming and going till late hours. Nobody from the nearby houses or shops gathered at the spot. Her mother, brother and sisters were there in her house when she reached from the market. Exact location of shop, from where she purchased needle and thread was not known to her however it was located in Chirag Delhi market. She does not not remember the exact timings that took her mother to make a call at 100 number. Nobody from the nearby houses gathered St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 9 at the spot when the police visited her residence. She never visited the police station after the day of incident, however she did go the police station on the day of incident where her statement was recorded. She did not have watch with her therefore she cannot to tell as to how much time she remained in the police station. Her mother also accompanied her to the police station. Her father was informed on the day of incident when he returned in the evening. Accused is one of the Pujarai at Kalka Mandir and so is her father. She was not aware if the accused belongs to their clan (Kutumb) or they have common ancestors. Her father is a government employee but she does not know where he is employed nor she knows about his designation. She admitted that there were residential houses around the place of incident. More specifically there were shopcum residence complex nearby. She is not aware if they have had strained relations with the family of accused. She does not remember if any case against the father of accused was registered at the instance of her father. She is doing MBA. Only one police personnel reached at her residence but she cannot tell his designation. They were taken to police station in the police vehicle. She does not remember the time when they returned from police station. She denied the suggestion that they have had good relations or cordial relations with the family of accused. She voluntarily stated that however it cannot be said that the relations were bad. She denied the suggestion that no such incident had taken place or that accused has been falsely implicated by her. She denied the St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 10 suggestion that she was deposing falsely.
13.Statement of accused u/s 313 CrPC was recorded wherein he stated that he has been falsely implicated in the present case. His family and family of complainant has strained relationship on account of dispute on a wall situated between dharamshala at Kalkaji Mandir owned by his grandmother and dharamshala owned by the father of the complainant. Therefore, the complainant has filed the present case against him based on concocted story. He opted to lead defence evidence.
14.Accused examined DW1 Sh. Joginder Singh deposed that on 15.08.2005 he was sitting with others at Sarela Kuan Chwok which is the meeting point of five lane of a gali. There are 78 shops in the chowk which includes a confectioner shop, a vegetable shop, two grossery shop and a tea/cold drink shop. It was his birthday and he was celebrating the same with his friends at confectioner shop under Neem Tree. He remained there for 11.00 am to 3.30 pm on that day. After four days, he came to know about this case. But during his presence, no such incident occurred at the spot. The place of incident is a busy chowk where people keep coming and going. The accused and the complainant are Pujarees of Kalkaji Temple and descendants of common ancestors. There are pending litigations between the Bhabhi of the father of the complainant and father of the St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 11 accused regarding a property. There is a dispute between the father of the complainant and his real brother regarding a cash transaction. One litigation is also pending between father of the complainant and one Ramdutt Bhardwaj. Therefore, the father of the complainant is a habitual litigant.
15.During his cross examination, he stated that he knows accused as well as the complainant because both are his neighbors. He had not invited his neighbors in his birthday celebration. However, he had invited his maternal uncles, sons and two Bua's sons. The news was in rife and therefore, he came to know from the people of locality but he does not remember the name of anyone who told him about the present case. He had not gone to the police station to inform the authorities that no such incident had taken place. He admitted that during the celebration of his birthday, he was not able to know that what incident was taking place in the surroundings. He denied the suggestion that being a neighbor of accused, he was deposing falsely in order to save the accused. He does not know if there is any litigation pending between the accused and the complainant side.
16.The Ld. APP has moved an application u/s 311 Cr.P.C. for recalling the IO/HC Jalbir Singh (PW3), Ct. Subhash (PW3) for their reexamination and for recalling the doctor concerned for his examination to prove the medical examination of St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 12 the accused. The said application was allowed on 21.07.2012.
17. PW2 HC Subhash Chand, during his reexamination, deposed that on 15.08.05, after the arrest of the accused Yogender Bhardwaj, he had taken the accused for medical examination to AIIMS hospital. Accused had been medically examined in his presence vide Ex.PW2/C. He did not feel the stench of alcohol from the accused.
18.During his cross examination he stated that accused was arrested from H. No. 429, Chirag Delhi and he took him to hospital AIIMS for his medical examination in auto around at 2.00 p.m. He took him alone to the hospital. He brought the accused to the P.S. Sheikh Sarai after his medical examination. He made no DD entry for taking the accused to the hospital for his medical examination and for bringing him to the P.S. He has not the said fact in any document but he disclosed the same to the IO. IO must have written in some document. He denied the suggestion the accused was not got medically examined by him and he was deposing falsely.
19.PW3 IO/ASI Jalbir Singh, during his reexamination, deposed that on 15.08.2005, after the arrest of the accused Yogender Bhardwaj, he had sent Ct. Subhash for the medication examination of the accused to AIIMS Hospital. His request to the concerned doctor for the medical examination of the accused is St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 13 Ex.PW3/D. He admitted that he had forgotten to exhibit his request for medical examination of the accused inadvertently and without any mala fide intention.
20. During his recross examination, he stated that he might have mentioned the factum of sending the accused for medication examination in chargesheet u/s 173 Cr.P.C. The witness was confronted with the chargesheet wherein it is not so recorded. He voluntarily stated that it may be missed by mistake otherwise he had attached the document of medical examination of the accused with the chargesheet. He denied the suggestion that he had not filed the document of medical examination of the accused with the chargesheet. The witness after having looked at the details of the documents enclosed with the chargesheet under Section 173 Cr.P.C. states that document Ex.PW3/D i.e. request for medical examination of accused was not mentioned in the col. of list of document at the end of report under Section 173 Cr.P.C. He denied the suggestion that accused was not medically examined and the so called medical examination is manipulated. He had not recorded the DD entry for sending the accused for medical examination. He voluntarily stated that no such DD entry was made because the accused had been sent to the hospital for medical examination from the spot. He denied the suggestion that he was deposing falsely.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 14
21.CW1 Dr. Piyush Ranjan deposed that he was posted as Surgery CMO in casualty of AIIMS. He has received a photocopy of medical examination of a person Yogender Bhardwaj @ Raju conducted on 15.08.2005 at about 3.50 p.m. at casualty AIIMS. The doctor who had conducted the medical examination of that person has only made his initials at the place of signature and has not written his name. Hence, it cannot be obtained that which doctor had medically examined the abovesaid person but he can give his medical opinion after seeing the report i.e. Ex.PW2/C.
22.As per the report, no evidence of external injuries were seen. Patient was fit for statement. Smell of alcohol was present. It is not mentioned that whether blood sample was taken or not or any breath analyzer was used. The doctor might have examined the patient through his breath because of which the presence of smell of alcohol was mentioned in the report.
23.During his cross examination he admitted that there should be mark of identification of examinee in order to attribute the findings to the examinee. He admitted that there is no identification proof of the examinee in Ex.PW2/C. He cannot say conclusively as to who the examinee was.
24. The case was argued at length by the Ld. APP for the State and the counsel for St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 15 the accused. Ld. APP argued that the prosecution has substantially succeeded in establishing the guilt of the accused beyond reasonable doubt. On the contrary, counsel for the accused has argued that the accused has been falsely implicated in the case by the complainant on account of previous rivalry. The improbability of version of complainant &her mother is patent from their evidence. Apart from that , the complainant sustained no injuries or abrasion and was not medically examined. The prosecution has failed to examine any independent public witness in support of its case. Moreover, the prosecution has also not proved that the accused was medically examined and was found to be drunk at the time of incident. Also, the mother of the complainant was not an eye witness to the occurrence and her statement being not spontaneous statement made in the course of transaction, is not admissible. Therefore, it is urged by the counsel for the accused that the accused is entitled to benefit of doubt.
25.I have carefully considered the rival contentions of both the counsels as well as gone through testimonies of witnesses and perused the records. Brief Reasons for Judgment Consistent and coherent sworn deposition of complainant and her mother:
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 16
26. The prosecutrix in the present case has fully supported the case of prosecution in all material particulars. The defence miserably failed to corrode her credibility during the cross examination and she stood the test of cross examination. It is argued by the counsel for the accused that the complainant, PW5 as well as her mother, PW4 in their statement before police as well as in evidence did not mention the specific item which was purchased by the complainant on the day of incident. Only, in her cross examination the complainant stated that she purchased needle and thread. However, she failed to disclose the exact location of shop from which she purchased needle and thread. Even her mother during the cross examination stated that her daughter did not tell as to shop she went to purchase the articles. The sworn deposition of complainant and her mother, thus, reflect that the complainant as well as her mother have concocted the story of the complainant going to market and purchasing some items on Independence day. Therefore, the evidence of complainant and her mother is not reliable.
27. I do not agree with the submission that the evidence of complainant and her mother can be doubted only because they failed to disclose the exact location of the shop, where the complainant went to purchase the articles. The complainant stated in her cross examination that there are confectioner's shop as well as of that of vegetable seller where she went to purchase the articles.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 17 There are other two shops nearby the shop of one Billu and also stated that the shop where she went to buy the articles, is in Chirag Delhi Market though, she does not know the exact location of the shop. The mother of the complainant also stated that there is vegetable shop at Sarela School near the spot. Thus, the complainant as well as her mother had given sufficient description of the spot and surrounding shops. The testimony of complainant and her mother cannot be disbelieved only because they were unable to tell the exact location of the spot from where the complainant purchased the needle and thread.
28. In Krishna Mochi v. State of Bihar, (SC) 2002(2) R.C.R.(Criminal) 567, it was observed by the Hon'ble Supreme court that:
''76. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher, Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life more so when the offenders are habitual criminals or highups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of crossexamination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 18 days it is not difficult to gain over a witness by money power or giving him any other allurence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time.
77.Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long it does not materially affect the prosecution case.
In case discrepancies pointed out are in the realm of pebbles, court should tread upon it, but if the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "Society suffers by wrong convictions and it equally suffers by wrong acquittals". I find this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh and another v. State (Delhi Administration), AIR 1978 Supreme Court 1091, Krishna Iyer, J. laid down that "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 19 truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh, AIR 1988 Supreme Court 1998, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform. In the case of State of West Bengal v. Orilal Jaiswal and another, 1994(3) RCR(Criminal) 186 (SC) : 1994(1) Supreme Court Cases 73, it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P., 1999(1) RCR(Criminal) 723 (SC) : (1999)1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
29.In the present case, both the complainant and her mother consistently deposed that the accused misbehaved with the complainant in an inebriated condition when she was returning after making purchase from shop and there is nothing to disbelieve their testimony.
Medical Evidence St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 20
30.The mother of complainant (PW4) as well as complainant (PW5) stated in their evidence that accused was in drunken condition at the time of incident and the same fact was also corroborated by the medical examination of the accused where the findings was given that the smell of alcohol was present when the accused was medially examined in AIIMS after his arrest on the day of incident. The finding of the doctor is Ex. PW2/C. The PW2 as well as PW3 also consistently deposed that the accused was taken for medical examination at AIIMS on the day of incident from the spot. PW2 also stated that the accused was examined in his presence by doctor on the day of incident.
31. It is argued by the counsel for the accused that during the cross examination of CW1, Dr. Piyush Ranjan, Sr. Resident Surgery, AIIMS who proved the medical examination of accused, he admitted that there was no identification proof of the examinee in Ex. PW2/C. He also said that there should be mark of identification of examinee in order to attribute the findings to the examinee. He also stated that he cannot say conclusively as to who the examinee was. Therefore, it is urged by the counsel for the accused that the prosecution failed to prove that finding in Ex. PW2/C pertains to the medical examination of accused.
32. I again do not concur with the argument advanced by Ld. Counsel for the accused. The doctor examining the person/accused is not personally known to St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 21 the doctor, and the doctor is not a person who can establish the identity of said person/accused. The police officer who takes the person for medical examination during investigation, can only by his evidence prove that the said person was in fact medically examined by the doctor and can establish his identity. The PW2 clearly stated in his cross examination on 16.08.2012 that the accused was medically examined in his presence. The Ex. PW2/C (MLC) also bears the name, parentage, address and age of the accused, and also reflects that he was produced for medical examination by PW2. The Ex. PW2/C also bears the stamp of Casualty Medical Officer, Emergency Service, AIIMS. The document PW2/C along with evidence of PW2 leaves no doubt that the accused was examined on 15.08.2005 in the AIIMS after being produced by the Ct. Subhash Chand (PW2).
33. The counsel for the accused has also submitted that the Ex. PW2/C does not state that whether blood sample of accused was taken or any breath analyzer was used while examining the accused. The said fact was also admitted by CW1. Therefore, the finding that smell of alcohol was present when the accused was examined, is not reliable. There is no merit in the argument of the Ld. Counsel for the accused. CW1 clearly stated that the doctor concerned might have examined the patient through his breath because of which the presence of smell of alcohol was mentioned in the report. Even though the PW2 St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 22 stated in his evidence that he did not feel the stench of alcohol from the accused, but, the doctor is an expert and his opinion cannot be substituted by an oral evidence of police officer. It is also important to note that the incident took place in the year 2005 and it is not humanly possible for the police witness examined in the year 2012 to correctly remember the condition of the the accused on the day of incident.
Non examination of independent public witness
34. It be noted that under Section 134 of Indian Evidence Act, 1872, it is stated that no particular number of witnesses are required for proof of any fact. It is the quality of the evidence and not the quantity of evidence which is required to be Judged by the Court to place credence on the statement (see State of U.P. v. Kishan Pal 2008 (8) JT 2008). It is also well settled that the conviction can be based on the basis of solitary statement of prosecutrix in offences involving moral turpitude or sexual offences, if the Court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution.
35. The complainant in her cross examination clearly stated that nobody from the nearby houses or shops gathered at the spot where the accused misbehaved with her. It is important to bear in mind that incident in question happened on th 15 August. On such day, the presence of public on road is thin. So, it is not St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 23 necessary that assault must have been witnessed by some passerby. The sequence of event as deposed by complainant also reflect that the accused tried to drag her to corner by holding her hand, but she managed to free herself. This process does not take so long, as to be seen by any independent public person. It is also not the case of the complainant that in order to free herself , she raised hue and cry. The accused was drunk and there is nothing unusual and unnatural that the complainant was able to free herself from the clutches of the accused herself without the intervention of any public person.
36. The complainant also stated that nobody from the nearby houses gathered at her residence when the police visited her residence. PW4, the mother of the complainant also stated in her cross examination that no public person was present when police came to her house. Even otherwise, the neighborers were not eye witness to the incident. Thus no adverse inference can be drawn against the prosecution only for non examination of independent public witness / neighbor in view of consistent and credible evidence of the prosecutrix (PW5) and her mother (PW4).
Res Gestae
37. The another argument of the accused that the evidence of mother of complainant is inadmissible being hearsay and not being part of same St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 24 transaction, is also not found favorable with this court. The counsel for the accused has relied on the judgment of Mahender vs. State of M.P. 1975 Crl. Law General 110 in support of his case. The statement of prosecurtix finds corroboration from the evidence of the mother of the prosecutrix (PW4) to whom she informed the incident & misbehavior of the accused after reaching her house at the first available opportunity. Her evidence is admissible being Res gestae under Section 6 of the Indian Evidence Act, 1872. In the judgment of Mahender Singh (supra) it was held that for establishing the identity of the accused, the statement of by passers who came to the spot after the murder and who were not eye witness to the occurrence will not be admissible u/s 6 of Evidence Act, 1872. The said judgment is distinguishable on facts and circumstances. In the said judgment, it was also observed in Para11 that:
"Hearsay statements to be admissible as substantive evidence of the truth of the facts stated therein must themselves be 'part of the transaction' and not merely uttered in the course of the transaction. Where the transaction is a single incident, a statement by a person who was perceiving the incident made simultaneously with the occurrence of the incident, may, with justification, be said to be part of transaction inasmuch as it is the result of a spontaneous psychological reaction through perception................................... While no doubt the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under Section 6 is that it is a part of the transaction and not merely because it is spontaneous."
The complainant in the present case disclosed the entire incident to her mother soon after the incident at the first available opportunity when she was still under St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 25 the stress caused by the said incident and thus, it constitute part of the same transaction. Therefore, the statement of mother of the complainant is very much admissible for corroboration of the evidence of the complainant, u/s 6 of Indian Evidence Act Act.
Motive for the false implication
38. The defence has also failed to establish any motive for the false implication of the accused by the prosecutrix and her mother. The accused in his statement u/s 313 Cr.P.C. has stated that he has been falsely implicated by the complainant on basis of a concocted story, in view of strained relationship between his family and family of complainant on account of dispute on a wall situated between Dharamshala at Kalkaji Mandir owned by his grandmother, and Dharamshala owned by the father of the complainant. No such suggestion or question was put to the complainant or her mother during their cross examination by defence. So, it is an improvement made at the time of S.A. u/s 313 Cr.P.C. as an after thought. The only suggestion was made to the prosecutrix and her mother by the defence during their cross examination that the family of the accused and family of the complainant have stained relationship on account of father of the complainant having filed a criminal case against father of the accused and for this reason, the accused has been falsely implicated in the present case. In fact, the suggestion made by defence reflects St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 26 that the accused may have grudges against the family of the complainant, as the father of the complainant filed one criminal case against the father of the accused, and this in fact gave him motive to misbehave with the complainant after finding her alone.
39. The DW1 produced by defence gave no evidence regarding any previous rivalry between the family of the accused and family of the complainant. In his cross examination, he stated that he is not aware whether any litigation is pending between the family of the accused and the complainant. His testimony in no way established that accused has been falsely implicated in the present case on account of previous enmity between the family of the complainant and the family of the accused.
40.In view of the above, I have no hesitation to hold that the prosecution has successfully prove the guilt of the accused beyond reasonable doubt. Whether section 341 IPC is established against the accused?
41. For establishing and for constituting an offence u/s 341 IPC, it is necessary to prove that accused wrongfully and voluntarily obstructed the complainant so as to prevent the complainant from moving in any direction in which she has right to proceed.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 27 The complainant in her evidence stated that when she reached near Sarela Kuan Chowk, the accused Yogender @ Raju @ Kalia restrained her way and held her right hand & started dragging her forcefully. Thus, the accused voluntarily and wrongfully caused hindrance in the free movement of the complainant and is convicted u/s 341 IPC.
Whether 354 IPC is established against the accused?
42.Section 354 of IPC makes penal the assault or use of criminal force on a woman with intention/knowledge 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.
The complainant, PW1, has stated that the accused forcibly held her hand near Sarai Kuan Chowk when she was returning back to her house and started dragging her forcefully. He refused to release her hand when she tried to get her hand released from the clutches of accused. The law expects men to be extra cautious while dealing with women. Undoubtedly, the act of the accused in holding the hand of the complainant without her consent is sufficient to affront St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 28 her dignity. The essential ingredients of section 354 IPC are duly made out. Therefore, accused Yogender is convicted for offence u/s 354 IPC. Whether section 506 IPC is established against the accused?
43.Section 506 IPC penalises "Criminal intimidation", which reads as under:
"506 Punishment for 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 503 IPC defines "Criminal Intimidation" as:
"503 Criminal intimidation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation - A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar 29 The complainant has stated in her evidence that the accused threatened her and her mother by saying that "agar koi karyawahi karai to jab bhi choot kar ayunga to goli marr dunga". It is not stated by complainant that any weapon was used by the accused to threaten the complainant and her mother, and as such any alarm was raised in their minds, which is necessary ingredient for establishing offence u/s 506 IPC. Therefore, the accused deserves to be acquitted for offence u/s 506 IPC. Accordingly, accused Yogender is acquitted for offence u/s 506 IPC.
44.I order accordingly.
Announced in the open court on this th day of 18 September, 2012 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi.
St. Vs. Yogender Bhardwaj, FIR no.724/05 P.S. Malviya Nagar