Delhi District Court
State vs Satpal . on 16 April, 2018
IN THE COURT OF MM04 (MAHILA COURT), WEST,
PRESIDING OFFICER Ms. AANCHAL,
TIS HAZARI COURTS, DELHI
State Vs Satpal .
CIS No.
FIR No. 324/14
PS Nihal Vihar
a) Sl. No. of the case & date of institution : 64319/16 & 13.01.2015
b) Date of commission of offence : 10.05.2014
c) Name of the complainant : Mrs. "V"
d) Name of the accused : Satpal s/o Sh. Mangat Ram,
r/o B-96 Aman Vihar, Nihal
Vihar, Delhi.
e) Nature of offence complained of : U/s. 354A/354/509/342 IPC.
f) Plea of the accused : Accused pleaded not guilty.
g) Date reserved for order : 16.04.2018.
h) Final order : Convicted.
i) Date of order : 16.04.2018.
JUDGMENT
(1)The above said FIR No. 324/14 was registered under section 354/354A/509/342 IPC against the accused on the complaint made by Mrs. V aged about 55 years on 10.05.2014 stating that on 10.05.2014 at 8:30 p.m. accused came at her house and asked her for cold water and when she went to fetch the same, accused entered into her house and started closing the door and on her asking for the reason of doing the same, he caught hold of her hand and pulled her towards himself by passing the vulgar words and FIR No. 324/14 Page no.16/15 tried to make the sexual demand. After completing the investigation, the investigating officer filed the charge sheet for the offence punishable under section 354/354A/509/342 IPC.
(2) After going through the record, ld. Predecessor of this court held that charge under section 354/354A/342/451/506/509 IPC be framed against the accused vide order dated 29.01.2016.
(3) In order to prove its case, prosecution examined the following witnesses which had relied upon the following documents:
Witnesses Documents relied upon.
Mrs. V as PW1 Complaint as Ex.PW1/A, Arrest memo as Ex. PW1/B, Personal search memo as Ex. PW1/C, Statement made under section 164 CrPC as Ex.
PW1/D. Ct. Surender Singh as PW2 (Nil) HC Janak Raj as PW3 FIR No. 324/14, PS Nihal Vihar as Ex.PW3/A (OSR). Original rukka Ex.
PW3/B. W/Const.Munni as PW4 (Nil).
Dr.Biney Kumar as PW5 C MLC as Ex.PW5/A. SI Suresh Kumar as PW6 Arrest memo as Ex. PW1/B,Personal search memo as Ex. PW1/C, MLC as Ex. PW5/A, rukka as Ex. PW3/B. Site plan as Ex. PW6/A. PW7 Ms. Swati Singh, An application for recording Ld. MM statement of prosecutrix under section 164 CrPC as Ex. PW7/A, Statement of IO as Ex. PW7/B,Statement of prosecutrix as Ex.
PW7/C, The certificate of true & correct account of statement Ex.PW7/D, Endorsement Ex. PW7/E (4) All the incriminating evidence has put to the accused and the statement under section 313 CrPC was recorded on 11.07.2017.
(5) Accused submitted his willingness to lead evidence and examined Suresh Paswan as DW1 who relied upon no document.
FIR No. 324/14 Page no.16/15(6) Arguments have been heard. Record is perused carefully.
(7) It has been vehemently argued on behalf of the accused that the accused is liable to be acquitted. More specifically for the reasons, firstly, charge has been framed on 01.07.2017 i.e. when six witnesses had already been examined and secondly, the accused has been implicated falsely by complainant and this fact is established by the testimony of DW1 and the contradictions present in the testimony of complaint.
(8) This court has given thoughtful consideration to the contentions made and is of the view that before appreciating the evidence, it is necessary to deal with first contention made on behalf of the accused.
(a) It is requirement of law under section 240 CrPC that If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(b) In the present case, on 29.01.2016, Ld. Predecessor of this court had heard the arguments on charge and after going through the material on record, took the view that charge under section 354/354A/342/451/506/509 IPC be framed against the accused. Not only the accused but his counsel as well were present on that day in the court. The accused and his counsel remained present into the court on 29.04.2016 and also on 06.05.2016 i.e. day when PW1 Mrs. V was examined and no particulars of charge were stated to accused. Therefore, though it is true that no formal charge was framed on any FIR No. 324/14 Page no.16/15 of these dates as per record but this court cannot ignore this fact that omission of framing of formal charge was never pointed out by the accused or any of these dates or even any of the dates till the examination of PW6 ASI Suresh Kumar recorded on 28.01.2017. From the presence of his counsel on 29.01.2017 and proceedings thereafter, it can be gained that both are well aware about the offence for which accused is being tried of though the formal contents / particulars of the offence were not stated to him. Not only this, order sheet dated 28.1.2017 shows that ld. Counsel for accused Sh. S.S.Malik had stated that he has no objection if the charge is framed at that stage and on 01.07.2017, when the charge was framed. Ld. Counsel for accused Sh. S.S.Malik had conceded that there is no need for a fresh trial. It infers that though no miscarriage of justice had ever been pleaded during trial by the accused, acquittal is being claimed at this stage on this ground for arguments sake only without any basis. It is also important to notice that even during final arguments, nothing has been pointed to satisfy this court that any failure of justice has occasioned for such omission in stating the particulars of charge. Hence, this court is of the view that no prejudice had been caused to the accused if the particulars of the charge were not put to him subsequent to the order for framing of the charge under section 354/354A/342/451/506/509 IPC made on 29.01.2016.
In this context it is also material to reproduce section 215 CrPC and its illustrations (b) depicting the similar case.
"Sec. 215 CrPC .No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or mission, and it has occasioned a failure of justice.FIR No. 324/14 Page no.16/15
(a).....
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from this that the omission to set out the manner of the cheating is not material".
Thus in view of the above discussion this court is of the opinion that the accused was neither misled by omission in stating the charge nor failure of the justice was occasion in any manner. Therefore, neither the trial had vitiated nor accused is liable to be acquitted on this very ground.
(9) Now this court shall proceed to decide the case on merits. Since the charge under section 354/354A/342/451/506/509 IPC has been framed against the accused, the prosecution is required to prove beyond reasonable doubt the following :
(i) The accused has assaulted or used criminal force to the complainant in order to outrage her modesty.
(ii) Accused made physical contact and advances involving unwelcome and explicit sexual overtures.
(iii) Accused had confined the complainant.
(iv) The accused had committed trespass in the house in order to commit the above said offences.
(v) Accused had committed the offence of criminal intimidation.
(vi) Accused had uttered words in order to intrude upon the privacy of the women.
(a) Ld. APP for state submits that the complainant has deposed on the lines of prosecution case, her version is well supported by her statement recorded under section 164 CrPC before Ld. Magistrate during investigation and nothing material is gained in favour of accused during her cross examination therefore accused is liable to be convicted for the offences charged.FIR No. 324/14 Page no.16/15
(b) On the other hand, Sh. S.S.Malik, Ld. Counsel for accused craves for acquittal making the following specific contentions:
(i) The complaint did not whisper the date and time of incident.
(ii) During her testimony, the complainant has deposed a number of facts which were never stated by her to police in her first complaint.
(iii) The complainant revealed during her cross examination that at the time of incident, public gathered but none of the public witness is examined or made witness in the present case.
(iv) The accused has been falsely implicated since the testimony of DW1 Suresh Paswan establishes that the accused was in his company at the relevant time. Therefore the prosecution has failed to establish the case beyond reasonable doubt.
(c) Before dealing with the contention, it is necessary to have a look at the testimony of complaint as recorded on 06.05.2016 who is not only the victim but only witness of facts examined by prosecution, hence it is reproduced herein as under: "I do not remember the date, month or year of the incident but it happened around two years ago. On the day of incident at about 8:30 p.m. the accused was in a drunken condition, forcefully came inside my house, twisted my hand and threatened me that if I told anyone he would kill me. He closed the door and said to me "do minute mere sath ander aa ja". The accused scratched my hands with his nails. To save myself, I slapped accused then I called his wife. The wife of the accused threatened to implicate me in the false case and further said "meri nahi teri badnami hogi'.
The accused resides in my neighbourhood and he always threatens me.
The accused is present in the court today (witness has pointed towards the accused and has correctly identified him). Thereafter, sister in law (bhabhi) of the accused also came and we had quarrel as there were threatening me. A call at 100 number was made and police came. Police took me and accused to the police station. There I made a complaint. My complaint is Ex. PW1/A bearing my signature at point A. Accused was beaten up by the police officials in the police station then medical examination was FIR No. 324/14 Page no.16/15 conducted. The accused persons were pressurizing me to take my complaint back.
At this stage, Ld. APP for state seeks permission to ask leading question to the witness. Heard.Allowed.
The accused abused me when he forcefully came inside my house. The accused was arrested by the police officials, the arrest memois Ex. PW1/B bearing my signature at point A. Personal search of accused was also conducted vide memo Ex. PW1/C bearing my signature at point A. My statement was recorded in the court before the Ld. MM. The statement recorded under section 164 CsrPC is Ex. PW1/D bearing my signature at point A. I was taken to the Sanjay Gandhi Memorial hospital by the police official for any medical examination on the day of incident.
(d) Examination of above testimony reveals that without disclosing exact date and stating incident to have taken place about two years ago as on the date of her examination which could be inferred as 2014 since the complainant was examined in 2016 in Court, she deposed that accused forcefully entered into her house in drunken condition, twisted her hand, closed the door and said to her "do minute mere sath ander aa ja' and threatened to kill her if she told any one. On question put by ld. APP, she deposed that accused abused her when he came forcefully inside her home. She also deposed that she had made the complaint to police which is Ex.PW1/A. This complaint reads that on 10.05.2014 at 8:30 p.m., accused came at her house demanding water and when she went inside her house to fetch water, he too came in and started closing the door and caught hold of her hand and passing vulgar comments and pulling her towards himself tried to make sexual demand. She also admitted to have made statement under section 164 CrPC before Ld. MM, Ex. PW7/6. It reads that on 11.05.2014, accused asked for water but he did not drink and entered into her house and said her to close the gate and "do minute lagenge". He started to abuse her, twisted her hand and threatened to kill her if she told someone. Thus the testimony of the witness, her statement under section 164 CrPC Ex. PW7/6 and complaint Ex. PW1/A, all are FIR No. 324/14 Page no.16/15 consistent to the effect that accused entered into the house of complainant without her consent/permission constituting trespass, he caught hold of her hand and uttered words demanding sex and abused and threatened to kill her. The essence of a woman's modesty is her sex. In Raju Pandurang Mahale v. State of Maharashtra 2004 Cri LJ 1441 (2004)4SCC371 Hon'ble Supreme Court has stated as follows:
"11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman 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. (c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
12. What constitutes an outrage to female modesty is nowhere defined. 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 in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object."
Thus, the words uttered by the accused to the complainant making sexual demand and his act of holding her hand, irrespective of twisting made as alleged, while entering into her house are sufficient to insult and cause a wave of fear and annoyance to the modesty of complainant and prove that accused had committed the offence u/s 509/354A/354 IPC on committing trespass making him also punishable u/s 451 IPC.
FIR No. 324/14 Page no.16/15(e) As pointed out by Ld. Counsel for accused, there is no doubt that date of incident is stated as 10.05.2014 in complaint whereas it is stated as 11.05.2014 in Ex. PW7/A and no date is stated during her examination by the complainant but this court should not ignore the fact that human memory tends to fade with time and events do not remain as videographed in one's memory. Statement under section 164 CrPC of complainant was recorded on 04.06.2014 i.e. about one month since the incident and complainant was examine after two years in the court, so forgetfulness of exact date is natural and it is immaterial and does not make her evidence untruthful.
(f) Ld. Counsel for accused strongly submitted that the complainant travelled beyond her complaint during her examination and when she was duly confronted with her statement Ex.PW1/A, it came on surface that she did not state to the police while recording Ex. PW1/A that accused closed the door or accused scratched her hands with nails or she got scratches on the right hand from the nails of the accused or accused came at her house in drunken condition and he twisted her hands or threatened to kill her if she told to anybody or he closed the door or said "do minute mere saath ander aaja", or to save herself, she slapped accused or she called his wife or wife of accused threatened her to implicate her in false case or further said "meri nahi teri badnamai hogi " or sister in law of accused came and they had quarrel as they were threatening her. So the witness is unreliable and untruthful.
This Court has given due consideration to this contention. In Ousu Varghese v. State of Kerala AIR 1974 SC 739, it has been opined by Hon'Ble Apex Court that the minor variations in the accounts of witnesses are often the hallmark of the truth of the testimony. In State of Rajasthan v. Smt. Kalki and another 1981 FIR No. 324/14 Page no.16/15 SCR (3) 504, it has been observed that material discrepancies are those which are not normal, and not expected of a normal person. In Appabhai And Anr. vs State Of Gujarat AIR 1988 SC 696, Hon'ble Supreme Court of India further observed as under:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Anr. v. the State of Madhya Pradesh 1972 Crl. L.J. 1302 at 1396 observed :
This Court has held that falsus in no falsus in omnibus is not a found rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
13. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , M.P. Thakkar, J. observed :FIR No. 324/14 Page no.16/15
A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him
-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
Keeping these principles in mind , this court is unable to hold witness untruthful or unreliable for a number of below stated reasons:
(1) Ex. PW1/A where these facts are stated to be absent, in fact in verbatim is the complaint on the basis of which FIR is registered. It is well settled law that FIR is not the encyclopedia of the entire events and cannot contain the minutest details of the event. When essential material facts are disclosed in the complaint, that is sufficient. Therefore, confrontation of the complainant with her complaint resulting into the registration of FIR and absence of a few pointed facts in it, is insufficient to hold witness as unreliable and untruthful.
(2) This court is not unconnected and unaware of the India Society where sex and things connected to it are not talked about and tried to be kept in secret so womanly hesitation and shyness to state the facts in detail and reproduction of FIR No. 324/14 Page no.16/15 exact words to the police officer who was a male, cannot be overruled. Therefore, use of words like "ashlil shabad" and "sexual demand" by the complainant to IO while making her first statement could be easily inferred as used out of hesitation and shyness.
(3) It is noticed that in her statement recorded under section 164 CrPC Ex. PW7/C, the complainant has specified that accused told her "gate band kar le, do minute lagenge".
These words were uttered by him while twisting the hand of complainant after entering into the house of complainant without taking her permission to enter, when she was alone there. Thus taking into account the natural shyness of woman to talk about such acts to male persons and absence of defense of accused that the complainant was tutored before making the statement u/s 164 CrPC, this court has no reasons to consider the testimony of witness in court supported by this statement under section 164 CrPC as untruthful and it is held proved that the accused made the demand of sexual favours to the complainant and stress made upon minute details in the complaint leading of registration of FIR, on behalf of accused is hypertechnical and does not appeal to the prudence.
(4) It is correct that the complainant has not stated in her statement Ex. PW1/A and PW7/C that accused was drunk but the examination of MLC of accused made on the very same day i.e. 10.05.2014 at 11:15 p.m. show that his blood alcohol concentration was 148.7 mg/100 ml, so irrespective of her deposition to this effect, accused is established to be in drunken state on the relevant day and time.
FIR No. 324/14 Page no.16/15(5) Though there is discrepancy on the deposition of complainant to the extent that she deposed that accused closed the door after entering into her house but it is not stated by her in PW1/A, there is consistent evidence that accused entered into her house without asking whether the door was closed by accused or told to complainant to be closed, it was definite to cause fear and annoyance to a woman and subsequent conduct and demand, were towards commission of offence against the modesty of woman. Thus the discrepancy pointed out is minor one and does not affect the substratum of the case and not worth consideration.
(6) So far as the remaining deposition to the effect of slapping made to accused and scratches received by complainant are concerned, this may constitute exaggeration at the maximum and does not make the entire deposition of the witness/complainant false. It is fairly settled law that if there is any exaggeration in the evidence, then the exaggeration is to be discarded and not the entire evidence.
(g)Now the third contention made on behalf of the accused is taken to be dealt with. It involves the answer to the question if the evidence of victim of sexual offence needs corroboration with independent evidence and in absence of same, if it shall be discarded Law qua this question is well settled. Victim of a sexual offence / assault, is not an accomplice, therefore her evidence need not be tested with suspicion as that of accomplice and evidence of victim of sexual assault is enough for conviction and does not require any corroboration unless thereare compelling reasons for seeking corroboration. In this regard, decisions made FIR No. 324/14 Page no.16/15 in State of Punjab Vs Gurmit Singh and others AIR 1996 SC393, State of Maharashtra Vs Chandera Prakash Kewal Chand Jain, AIR 1990 SC658, State of Himachal Pradesh Vs Raghubir Singh (1993) 2 SCC 622, Wahid Khan Vs State of Madhya Pradesh (2010) 2 SCC9, are referred for reliance.
In the present case, accused has not produced any evidence on record which could establish that there were any reasons, much lesser than strong, with the complainant to implicate him falsely. Discussion made in previous paras show that the complainant has deposed the facts that accused had entered into the house of the complainant without her consent and there, he twisted her hand and made the sexual demand. This act was done by the accused when complainant was all alone at her house. Thus, the circumstances and the manner in which accused had made the demand prove that he trespassed in order to comment an offence against the modesty of complainant punishable under section 354/354A part 1/509 IPC constituting the offence punishable under section 451 IPC. Therefore, this court is of the opinion that no corroboration from independent evidence including with that of public witness is required and the complainant has been trustworthy and should be relied upon.
(h) The last limb of contention is dependent upon the answer whether the deposition of DW1 Suresh Paswan proves the plea of alibi raised by accused. DW1 has deposed that on 10.05.2014, accused Satpal was with him from 7:00 p.m. to 9:30 p.m. and the complainant had lodged present complaint as they were residing in front of accused and had some dispute on some petty things and he has been cross examined by Ld. APP and he further disclosed that on the day of incident, he had called the accused for normal meeting with him as the day was holiday and the distance between his house and the place of incident is about of walking distance of two minutes and he knows the accused Satpal for the last 1718 years ago.
FIR No. 324/14 Page no.16/15This deposition clearly shows that even if accused had gone at the place of DW1, it cannot be said that it was impossible for accused to be at place of incident and commit any act as alleged. Therefore, the presence of accused at her home, as alleged by complainant cannot be belied. Further, since DW1 has been in acquaintance of accused for about 17 to 18 years, it gives an additional reason to depose in favour of the accused. It is also strange that though no special reason to memorise the day of incident is stated by the witness, he mentioned specific date of incident in his deposition. He has also not produced any document reflecting any of his representation made to any authority during the period of last two years after the day of incident, complaining false implication of accused by the complainant. Thus, deposition of the defence witness seems to be sketchy and not trustworthy and the defence of accused is held as not proved.
Accordingly, in view of the above discussion, it is held that prosecution has been successful to establish the commission of offences punishable under section 354/354A/451/509 IPC beyond reasonable doubts but since it is not proved that the accused had closed the door as alleged and it cannot be said that the accused could put into effect his bald statement to kill complainant, if she told to someone, it is held that prosecution has been unable to prove its case to the extent of offence charged under section 342/506 IPC. Consequently, accused Satpal is hereby convicted for the offence committed under section 354/354A/451/509 IPC and acquitted for the offence punishable under section 342/506 IPC.
Announced in the Open Court (Aanchal) Today i.e.on 16th day of April,2018. MM(Mahila Court04) West Tis Hazari Courts, Delhi FIR No. 324/14 Page no.16/15