Delhi District Court
State vs Sandeep on 19 March, 2024
IN THE COURT OF SH. AJAY SINGH SHEKHAWAT,
ADDITIONAL SESSIONS JUDGE-02,
SOUTH-WEST DISTRICT, DWARKA COURTS, DELHI.
In the matter of: -
SC No. : 874/21.
CNR No. : DLSW01-012917-2021.
FIR No. : 442/2019.
PS : Dabri.
U/s : 328/354 IPC.
State
VERSUS
Sandeep
S/o Sh. Pritam Singh,
R/o A-35, Gali No. 13,
Raja Puri, New Delhi. ... Accused.
Date of Institution : 23.12.2021
Judgment Reserved On : 24.02.2024
Judgment Pronounced On : 19.03.2024
- :: JUDGMENT :: -
1.Accused is facing trial in the present case for committing offences punishable u/s 328/354 IPC.
2. FIR in question was registered on the complaint of complainant/prosecutrix "S" (PW1). As per charge-sheet, complainant/prosecutrix made complaint against the accused, which is as under: -
".....For about 10-12 days, I used to take milk from Sandeep S/o Shri Pritam Singh, the owner of FIR No. 442/19. Page No. 1 of 14.
PS Dabri. State Vs. Sandeep cow dairy in my street. Like every day, today on 18-07-19 at about 9:30 A.M in the morning when I went to the dairy to get milk, Sandeep asked me whether I would like to have tea, to which I agreed. I kept my empty jug there and told Sandeep that I am going to get the gas cylinder filled and will come back later. I filled a small gas cylinder from a nearby shop and kept it at home and sat in the room. Sandeep brought tea in a jug from the kitchen upstairs and poured it in a small steel glass and gave it to me, which I drank. After drinking it, I started feeling dizzy and Sandeep started caressing my hand. Apart from both of us, there was no one in the room. Sandeep pressed my hand to which I got scared and went out and called 100 number from my phone regarding this. PCR vehicle came and took me to the police station, from where I was taken to DDU Hospital with the Lady Police. After treatment, I came back to the police station with the Lady Police and my statement was recorded........."
3. On the basis of aforesaid complaint, FIR in question was registered and investigation was carried out. After culmination of investigation, accused was charge-sheeted and summoned vide order dated 01.12.2021 by the concerned Jurisdictional Court. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
4. In light of the above stated facts and proceedings, vide order dated 26.05.2022, charges u/s 328/354 IPC were framed against accused to which he pleaded not guilty and claimed trial.
5. To prove its case, prosecution examined PW-1 "S" (complainant/prosecutrix), who stated that she was residing in a rented room near the house of accused Sandeep. Accused Sandeep was running a dairy and she daily used to go to buy milk from his dairy. She further deposed that on one day in July 2019, FIR No. 442/19. Page No. 2 of 14.
PS Dabri. State Vs. Sandeep at about 4.30 pm, she went to the dairy and gave the utensil of milk to accused and thereafter she went to get the gas cylinder filled. She further deposed that when she came back, accused had still not started selling milk and she told him that she is going to her house to keep the cylinder there and would come back to fetch the milk. She further deposed that when she came back, accused told that it will take another few minutes and in the meantime, he offered her a cup of tea to which she agreed. She stated that just after sipping the tea, she felt giddiness and accused started misbehaving with her and started pulling her hand towards him. She further deposed that she got herself released from him and ran outside and made a call at 100 number. Thereafter, PCR came and took accused to PS Dabri and she was taken for her medical examination to DDU Hospital. She further deposed that police recorded her statement Ex PW 1/A in the police station. She further deposed that she showed the place of incident to the police and IO Ex PW 1/B prepared site plan at her instance. She further deposed that police did not recover anything from the spot in her presence and arrested accused in her presence vide arrest memo Ex.PW1/C.
6. PW-1 was cross examined by Ld. Additional P.P for State as she resiled from her previous statement with respect to the seizure memo of thermos and cup of tea. During cross- examination by Ld. Addl. P.P for State, PW-1 admitted that her signatures are appearing at point A on the seizure memo of thermos and cup of tea Mark A. However, she stated that nothing was seized by the police in her presence nor she can identify the thermos or cup of tea. PW-1 further denied to the suggestion put FIR No. 442/19. Page No. 3 of 14.
PS Dabri. State Vs. Sandeep on behalf of State that she is intentionally not disclosing about the fact regarding recovery of thermos and cup of tea.
7. PW-2 SI Jhabar Mal deposed that on 18.07.2019, DD No. 39A Ex.PX-3 was marked to him and thereafter, he reached at A- 135, Gali No. 13, Raja Puri, where he came to know that caller has already been shifted to hospital by PCR officials. He further deposed that thereafter, he came back at the police station, where caller "S" was found present, who was got medically examined at DDU Hospital through W/Ct. Sunita vide MLC NO. 6589 Ex.PX-6. He further deposed that he also went to DDU Hospital where doctor handed over him a sealed pulanda sealed with the seal of "CMO DDUH" alongwith sample seal, which he took into police possession vide seizure memo Ex.PW2/A. He further deposed that thereafter, he alongwith complainant and W/Ct. Sunita came back at the police station and recorded statement of complainant Ex.PW1/A. He further deposed that he also made his endorsement Ex.PW2/B and got present FIR Ex.PX-1 registered. He further deposed that he prepared site plan Ex.PW1/B at the instance of complainant, accused Sandeep was arrested in this case vide arrest memo Ex.PW1/C and was personally searched vide memo Ex.PX-5. He further deposed that during investigation, he also seized thermos and glass, wherein intoxicated substance was given by accused to complainant, vide seizure memo Ex.PW2/C and there was some tea left in the thermos. He further deposed that he got deposited the tea in FSL for forensic expert and during investigation, accused was produced before the Court concerned and was sent to JC vide orders of Court.
FIR No. 442/19. Page No. 4 of 14.
PS Dabri. State Vs. Sandeep
8. PW-2 further deposed that on 22.07.2019, statement u/s 164 Cr.P.C of complainant Ex.PX-4 was got recorded and later on, FSL result Ex PX-7 was collected by some other investigating officer and filed it in the Court. He further deposed that during investigations, he recorded statement of relevant witnesses and case properties were got deposited in malkhana. He further deposed that on completion of investigation, he prepared charge-sheet and filed it in the Court for trial. PW-2 identified the case property i.e. Thermos Ex.P-1, steel glass Ex.P-2 and plastic container Ex.P-3.
9. In his statement recorded u/s 294 CrPC, accused admitted registration of FIR as Ex.PX-1, certificate u/s 65B Indian Evidence Act in support of computerized record of FIR as Ex.PX-2, GD No. 39A dated 18.07.2019 as Ex.PX-3, statement of the prosecutrix recorded u/s 164 Cr.P.C as Ex.PX-4, arrest memo Ex.PW1/C, personal search memo as Ex.PX-5 and MLC of prosecutrix as Ex. PX-6.
10. Statement u/s 313 Cr.P.C of accused was recorded, wherein the accused was briefed on all the incriminating ocular and documentary evidence to which he denied and further deposed that he is innocent and has been falsely implicated in this case.
11. Accused opted not to lead any evidence in his defence.
12. I have heard State through Sh. V.K. Swami, ld. Additional FIR No. 442/19. Page No. 5 of 14.
PS Dabri. State Vs. Sandeep PP for State and Sh. Ashish Rohilla, Ld. counsel for accused. I have also perused entire material on record.
13. The burden of proof in a criminal trial never shifts and it is always the burden of prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence produced before court. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of accused, charged with the commission of a crime, a criminal court has to ensure that facts constituting such crime are proved beyond the scope of any reasonable doubt. Every case in the final analysis would have to depend upon its own facts and merits. Definite doubts or lacunae in the case of the prosecution may result in benefit of doubt being given to the accused and consequential acquittal.
14. In order to bring home guilt of accused under Section 328, IPC, 1860 following ingredients are required to be established beyond reasonable doubt:-
(i) That the accused administered or cause to be taken by any person, a thing;
(ii) That thing being a poison or other stupefying, intoxicating or unwholesome substance;
(iii) That the accused did so:-
(a) intending to cause hurt, or
(b) knowing it likely to thereby cause hurt; or
(c) intending to commit or facilitate the commission of an offence.
FIR No. 442/19. Page No. 6 of 14.
PS Dabri. State Vs. Sandeep The underlying principle governing the offence under Section 328, IPC, 1860 is that the administration of poison or other stupefying, intoxicating or unwholesome substance can only be justified on medical grounds. In other cases, it is in itself an offence. The object of the Section is obviously to punish persons who rob and ravish others by putting them out of their senses by means of stupefying drugs, which not only facilitates the commission of the crime but also in a great measure prevents its detection. The words "administer" and "cause to be taken"
are, no doubt, here intended to apply to two distinct methods of imparting poison. The first refers to the giving of poison directly to the sufferer, while the phrase "cause to be taken" refers to a taking by the sufferer under circumstances when he was not a free agent to do otherwise. Thus, the provision makes a person criminally answerable and liable not only for what he has directly given, but what he has made the other to take, provided that he has done so with the criminal intent specified in the section.
15. Now, coming to the facts of the present case, the allegations against accused Sandeep under Section 328, IPC, 1860 does not find any support in the evidence led by the prosecution. As already noted, while describing the statement of investigating officer SI Jhabarmal (PW-2), the requisite samples and exhibits were forensically examined by the Forensic Science Laboratory, GNCT, Delhi. The examination report Ex PX-7 was submitted before this court by way of supplementary chargesheet wherein the forensic expert gave an opinion as follows:-
"......11. Results of Examination Report FIR No. 442/19. Page No. 7 of 14.
PS Dabri. State Vs. Sandeep On Chemical, TLC & GC-MS examination,
(i) Exhibit '1-A' was found to contain 'Caffeine'. (ii) Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits '1-B' & '2'."
16. In view of the opinion given by the expert vide report Ex PX-7, this court, has no hesitation in concluding that the administration of tea was not laced with any kind of poison or other intoxicating, stupefying substance as indicated in Section 328, IPC, 1860. The story of the prosecution on this aspect does not find support in the scientific opinion given by the concerned Forensic Lab. As already noted, in order to prove the charge under Section 328, IPC, 1860, the substance administered to the victim must be of the quality and category as indicated in the Section i.e. poison or other stupefying, intoxicating or unwholesome substance and unfortunately it is not the case in the given facts. The prosecution has miserably failed to prove on record beyond reasonable doubt that accused administered some kind of intoxicating substance to PW-1 / prosecutrix "S".
17. As far as the allegations under Section 354, IPC, 1860 are concerned, in order to bring home the guilt of accused following essential ingredients and facts are required to be established beyond reasonable doubt by the prosecution:-
(i) That the person assaulted must be a women.
(ii) Accused must have used criminal force on her intending thereby to outrage her modesty.
(iii) What constitutes an outrage to female modesty is nowhere defined - the essence of a woman's modesty is FIR No. 442/19. Page No. 8 of 14.
PS Dabri. State Vs. Sandeep
her sex.
(iv) Act of pulling a woman, removing her dress coupled with
a request for sexual intercourse, as such would be an outrage to the modesty of a woman.
(v) Knowledge, that modesty is likely to be outraged, is sufficient to constitutes the offence without any deliberate intention of having such outrage alone for its object.
18. Intention is not the sole criterion of the offence punishable under Section 354, IPC, 1860 and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of a woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom such crime is alleged to have been committed. Even though, it is true that assault or use of criminal force to a woman is one of the essential pre-conditions for applicability of Section 354, IPC, 1860 but the same has to be with an intent to outrage her modesty or knowing it to be likely that he will thereby outrage her modesty. Neither the use of criminal force alone nor act of outraging the modesty alone is sufficient to attract an offence under Section 354, IPC, 1860.
19. 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 is an attribute associated with a female FIR No. 442/19. Page No. 9 of 14.
PS Dabri. State Vs. Sandeep human beings as a class. It is virtue which attaches to a female owing to her sex. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. The word 'modesty' is not to be interpreted with reference to the particular victim of the act but as an attribute associated with female human beings as a class.
20. Now coming to the facts of the present case, the primary allegation against accused Sandeep is that he administered some intoxicated substance in glass of a tea to the complainant / prosecutrix "S" with intent to outrage her modesty and assaulted her by using criminal force with intention or knowledge to outrage her modesty. As already noted, PW-1 prosecutrix "S" was the only star witness presented by the prosecution. In her testimony before Court she stated that some day in July 2019 at about 4:30 P.M, she went to the dairy of the accused to fetch milk and since the accused indicated that he has still not started selling milk, the prosecutrix left the dairy so that she can get her gas cylinder refilled and came back at the dairy after leaving the said gas cylinder at her home. Accused offered a cup of tea and she agreed to the said offer. As per her testimony, she immediately felt giddiness after sipping the tea and accused started misbehaving with her by pulling her hand towards him. She got herself released from accused and ran outside and made a call to 100 number for police help. As already observed above, for the reasons stated in para no.16 the allegations under Section 328, IPC, 1860 have not been duly substantiated and proved beyond FIR No. 442/19. Page No. 10 of 14.
PS Dabri. State Vs. Sandeep reasonable doubt by the prosecution and thus the only discussion left to be made at this point is regarding the charge and allegations under Section 354, IPC, 1860. Thus, it can be noticed that the crux of the whole allegation hinges on the fact that accused misbehaved and pulled hand of prosecutrix / complainant towards him. However, before appreciating the testimony of PW-1 / prosecutrix "S", it would be pertinent to take note of the fact that the incident described as per her testimony happened in the evening at around 4:30 P.M. However, as per the complaint Ex PW 1/A, the occurrence of the said incident happened at about 9:30 A.M in the morning on 18.07.2019. When PW-1 / prosecutrix "S" was cross-examined on this aspect she stated that she cannot say whether the incident happened in the morning or in the evening and she does not remember the incident correctly. Moreover, in the document (MLC) Ex PX-6 it is also noticed and mentioned that the incident happened in the morning. The star witness of the case who is also victim of the alleged use of criminal force and assault has not supported the case of prosecution on the aspect of the point of time of the particular day when the said incident actually happened. This contradiction or variation appearing in the testimony of PW-1/ prosecutrix "S" as recorded before the Court when she stepped into the witness box when compared with her previous statement made to the police in the form of complaint Ex PW 1/A and under Section 164, Cr.P.C Ex PX-4, shows that there is a material difference in her version of the story, thereby hurting her credibility and reliability as prosecution witness. Indeed, there are other material discrepancies in the testimony of PW-1 / prosecutrix "S" as and when she does not support the case of FIR No. 442/19. Page No. 11 of 14.
PS Dabri. State Vs. Sandeep prosecution qua the seizure memo Ex PW 2/C by which thermos and cup of tea were seized by the investigating officer. She stated that police did not recover anything from the spot in her presence and nothing was seized by the police in her presence nor she could identify the thermos and cup of tea. Thus, it is noted that PW-1 / prosecutrix "S" substantially resiled from her previous statement on the aspect of proving the seizure memo Ex PW 2/C and failed to support the case of prosecution. It would be pertinent to note here that no effort was made by the investigating officer with respect to join any public witness who could have corroborated and prove on record such facts as to the moment of the PW-1 / prosecutrix "S" from her home to dairy of accused and from dairy to gas cylinder refilling shop and back to her home and then to dairy of accused. It would have been aiding and logical had the investigating officer made reasonable attempts to collect evidence for joining public people who could have added to the credibility and reliability of the story projected by the prosecution. This fact assumes importance in the light of PW-1 / prosecutrix "S" stating in her cross-examination that she does not remember who all were present in the dairy of accused at the time of incident and the dairy of accused is situated in a densely populated locality. It is to be further noted that she deposed that there used to be frequent customers in the dairy of accused, however she did not notice any customer at the time of incident. The relevant extract of the testimony is reproduced hereunder:-
"I do not remember who all were present in the dairy of accused at the time of incident. The dairy of accused is situated in the densely populated locality. I noticed that there used to be frequent customers in the dairy of accused. I FIR No. 442/19. Page No. 12 of 14.
PS Dabri. State Vs. Sandeep did not notice any customer in the dairy of accused at the time of incident. Though many persons were passing through the street but there was no customer in the dairy."
21. If one integral part of the story put forth by a witness- complainant was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the Hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
22. It is pious duty of a criminal court to determine in every case whether the witness is credible in his or her testimony. Credibility of a witness is crucial to both prosecution and defence in a criminal trial. If credibility of a witness is breached or shaken, it proportionately damages the case of prosecution and gives the scope to the defence to raise reasonable doubt to prevent conviction. If the deposition of primary witness / victim / complainant lacks credibility it tantamounts to lack of reasonableness in the prosecution case. Determination of witness credibility involves many factors. Clearly, the substance of the testimony, the amount of detail and the accuracy of recall of past events affect the credibility determination. Whether the witness contradicts him or herself or is contradicted by the testimony of other witnesses can play a part in the credibility determination.
23. Further, it is settled legal preposition that if two views are FIR No. 442/19. Page No. 13 of 14.
PS Dabri. State Vs. Sandeep possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
24. Thus, in the light of aforesaid discussion, it is held that prosecution has failed to establish charges against the accused U/s 354, IPC, 1860.
25. Accordingly, accused Sandeep is acquitted of charges under section 328/354, IPC, 1860. His personal bonds are canceled and surety is discharged. Documents, if any, be returned to the surety.
26. In terms of Section 437(A) CrPC accused persons are directed to furnish personal and surety bond in the sum of Rs.10,000/- for period of six months.
Digitally signed byAnnounced in open Court AJAY SINGH AJAY SINGH SHEKHAWAT on 19th March 2024. SHEKHAWAT Date: 2024.03.19 04:58:07 +0530 (AJAY SINGH SHEKHAWAT) ASJ-02, SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI FIR No. 442/19. Page No. 14 of 14.
PS Dabri. State Vs. Sandeep