Delhi District Court
Criminal Case/167/2013 on 10 December, 2015
IN THE COURT OF MM02, MAHILA COURT, NORTH WEST,
ROHINI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 167/13
PS : Ashok Vihar
U/s 354A/509 IPC
Unique I.D. No. 02404R0198422013
State v. Devender Singh Tomar
J U D G M E N T :
a)Serial No of the case : 313/2/14
b)Date of commission of offence : 06.06.2013
c)Name of the complainant : Name with held in typing
d)Name parentage and address
of accused : Devender Singh Tomar S/o Sh.
Narottam Singh Tomar R/o
A39, Ashok Vihar, PhaseI
Delhi.
e) Offence complaint of : 354A/509 IPC
f)Plea of accused : Pleaded not guilty
g)Date on which judgment was
reserved : 06.11.2015
h)Final Order : Convicted
i)Date of decision : 20.11.2015
FIR No. 167/13 State v. Devender Singh Tomar Page Number 1 of 16
Brief Statement and Reasons for Decision:
1. Accused is facing trial on the allegations that on 06.06.2013 at 11.00 am at Bada park, Ashok Vihar, Delhi, he made physical contact and advances involving unwelcome and explicit sexual overtures by grabbing the hand of the complainant (name with held in typing but told to the accused) and making sexually colored remarks with the intention to outrage her modesty. On these allegations, investigation was carried out and after investigation charge sheet for the offence u/s 354A/354 IPC has been filed. On appearance of accused, copy of the charge sheet was supplied. Arguments on charge were heard. Prima facie charge for the offence u/s 354A/509 IPC was made out against accused Devender Singh Tomar and charge accordingly framed to which he pleaded not guilty and claimed trial.
2. Accused admitted the u/s 294 Cr.P.C the recording of statement of complainant u/s. 164 Cr.P.C without the contents deposed by the prosecutrix as Ex. P1. In order to prove its case, prosecution examined eight witnesses.
PW1 ASI Pradeep Kumar, Duty Officer stated that on 06.06.2013 he received a rukka sent by WSI Rajesh and on the basis of FIR No. 167/13 State v. Devender Singh Tomar Page Number 2 of 16 which he got FIR Ex. PW1/A registered with endorsement on the rukka Ex. PW1/B. The certificate u/s 65B of Indian Evidence Act is Ex. PW1/C. PW2 complainant stated that on 06.06.2013 at about 11.00 am Devender/father of her friend came to her house to take her for computer classes. When they were returning from computer classes Devender uncle held her hand and asked to her to come to the park and offered her bread pakoda and cold drink. When they were sitting in the park, accused put his hand from behind on her shoulder. The complainant opposed the same and tried to stand up but accused forcefully made her to sit down. Accused put his hand on her right thigh three time. The accused asked her that in case she needed any money, phone and other articles he would provide the same. Accused told her that he is free at 6.30 pm and there is no one at home at that time. The weather is very hot here, he will enjoy in cooler at home. PW1 cried and pushed him back. When she tried to go out of the park, accused again held her hand. After that incident she went to the house of her sister Sonia and narrated the whole incident to her. Complainant correctly identified the accused in the Court. She alongwith her sister went to the police station and made a complaint to the police officials Ex. PW2/A. When she returned from police FIR No. 167/13 State v. Devender Singh Tomar Page Number 3 of 16 station, accused and his wife were present at her house. She made a call to her brother and said "jab tak main ghar na aayu to unko jane mat dena". When she returned home, first her sister slapped on the face of accused, then complainant slapped him. Thereafter her family members also scolded the accused. Then police came to her house. Police officials prepared arrest memo Ex. PW2/B and personal search Ex. PW2/C of the accused. Her statement u/s 164 Cr.PC was recorded by Ld. Link MM Mark A. PW3 Sonia deposed that present incident took place in the summer season. Complainant is her tenant. Complainant came to her house crying and asked her to accompany her. Then they left the house. The complainant narrated the whole incident to her. They reached the police station which is near to the market. One police official met them out side the police station. They narrated the same incident to him. The said police official suggested to them to reach police station and lodge FIR against the accused. They reached at police station Ashok Vihar and lodge the present FIR. PW3 correctly identified the accused in the Court.
PW4 Om Parkash deposed that complainant is his daughter. Accused is his very old friend. On 05.06.2013 accused came FIR No. 167/13 State v. Devender Singh Tomar Page Number 4 of 16 to his house and told him that complainant and her friend are friends and both will join computer course together. Next day i.e. 06.06.2013 at 11.00 am accused came to his home and took his daughter for computer course. Accused left his daughter at his house. At that time PW4 was on his duty. He received a call from his wife who told him about the incident i.e. molestation and misbehavior done by accused to the complainant in the park. Police officials recorded his statement. He also correctly identified the accused in the Court.
PW5 Ct. Khemaram deposed that on 06.06.2013 he alongwith WSI Rajesh and SI Rajender Singh went to Deep Cinema building where accused was present. IO arrested the accused. IO recorded disclosure statement of accused Ex. PW5/A in his presence. He took the accused for medical examination at BJRM Hospital and medical examination of accused got conducted. IO recorded his statement.
PW6 IO SI Rajender Singh corroborated the version of the prosecution. He stated to have arrested the accused at the instance of complainant from A39, Deep Cinema Building. He prepared the site plan of place of incident at the instance of complainant Ex. PW6/A. Medical examination of the complainant was also got conducted in BJRM Hospital by WCt. Neelam.
FIR No. 167/13 State v. Devender Singh Tomar Page Number 5 of 16 PW7 Sushila Kumari, Principal M.C. Primary School, Wazirpur deposed that as per information obtained, the date of birth of complainant according to the school record register is 28.01.1995 and school record certificate given by her is Ex. PW7/A. As per the date of birth certificate of the school complainant was major at the time of incident.
PW8 W/Inspector Rajesh Sharma deposed that on 06.06.2013 she recorded the complaint as deposed by the complainant Ex. PW2/A in her own hand writing at the instance of the complainant. She made endorsement on the original rukka. Counseling of complainant also conducted at police station through NGO's counselor. After cross examination of the witnesses, prosecution evidence was closed.
3. All the incriminating evidence was put to the accused and his statement u/s 313 Cr.P.C. was recorded. In reply to the incriminating evidence, accused Devender Singh Tomar denied the allegations against him. He stated that brother of complainant called him to his house. The daughter of landlord of the complainant namely Sonia slapped him. The complainant did not slap him. Her family members did not scold him. He does not know the reason why Sonia slapped him. Police arrested him from the house of the complainant. FIR No. 167/13 State v. Devender Singh Tomar Page Number 6 of 16 Sonia had brought the police with her. He stated that complainant is a tenant in the house of Sonia and at the instance of the Sonia he has been falsely implicated. Police did not recorded his disclosure statement. He was medically examined. He have been falsely implicated without any reason. Accused chose to lead evidence in defence.
4. In his defence accused examined one witness Suresh Chander Kaushik. DW1 deposed that he is priest in Mandir namely Bhagwati Durga Mandir, Wazirpur Village, Delhi in the area of Ashok Vihar. He is residing there since 40 years. He knows the accused very well. The nature of the accused is very nice and he is hard working and honest man. He knows the wife and child of the accused. They are also hard working and honest. Accused resided first time with him on rent at his house. He stated that he has come to know that one case has been registered in the name of the accused which is false and fabricated. He knows the complainant and his family members also. They are of quarrelsome nature and habitual in filing complaints. He stated that accused not involved in any other offence. After cross examination of defence witnesses matter was listed for final arguments.
5. I have heard Ld. APP for the State and Shri Pradeep FIR No. 167/13 State v. Devender Singh Tomar Page Number 7 of 16 Kumar Sharma Ld. Counsel for the accused and perused the Court record. Counsel for the accused has argued that it is a false case, earlier registered under the POCSO Act but later the complainant was found 18 years. No public witness joined in the investigation. There is no canteen in the near by area. The park is just in front of the cinema and there might be number of visitors. The complainant confided in the daughter of the landlord Sonia before telling any person at her house. The accused was arrested from his house and not that of the complainant. PW3 Sonia refused to identify the accused. The complainant is deliberately the conselling her age during her deposition in the Court. In order to prove its case prosecution has to establish the following ingredients of the offence u/s 354A/509 IPC.
(i) That the accused made physical contact and advances involving unwelcome and explicit sexual overtures or the accused made sexually coloured remarks.
(ii) The accused uttered some words or made some sounds or gestures or exhibited any objects or intruded upon the privacy of a woman.
(iii) The accused must have intended that the words so uttered or the sound or gesture so made or the object so exhibited should be heard or seen respectively by the woman.
FIR No. 167/13 State v. Devender Singh Tomar Page Number 8 of 16
6. In the present case, the PW1 complainant has corroborated her entire testimony and has with stood the test of cross examination regarding the incident. She stated that the daughter of the accused is her friend since last 12 years. She stated that she knew accused Devender as friend of his father for last 20 years. The accused took her to the computer institute which was situated at the chopal. From there they went to the park situated near her house at a distance which would take about 1520 minutes on foot from her house. She stated that at time of incident she did not have any mobile phone. The accused forced her to eat pakoda and cold drink. The testimony of the complainant/ PW1 is blemish free as not even a single suggestion has been put to the complainant by the counsel for the accused denying the incident.
7. It is the defence of the accused that the present FIR has been got registered by PW complainant at the instance of one Sonia who is habitual in filing complaints. No suggestion has been put to PW3 Sonia stating that she is habitual in filing complaints for reasons best known to the accused. There is no previous enmity between the complainant and her family with the accused. Instead, father of the complainant is a friend of the accused since last 20 years as admitted by him as well. No previous enmity between the daughter of the FIR No. 167/13 State v. Devender Singh Tomar Page Number 9 of 16 landlord Sonia and the accused has been proved by the accused. Hence there is no ground to discard the credit worthy of the complainant. There is no reason for the complainant to falsely implicate the accused. The evidence of prosecution witnesses has been found to be credit worthy and has remained blemish free. It is highly improbable that the complainant will accuse an old friend of his father falsely. Even though DW1 who is priest of the temple where the accused is residing and has stated that he knows the accused as hard working and honest and nice person who was residing at his house on rent, this testimony no where says that the accused has not committed the offence against the complainant.
8. Another defence raised by the Counsel for the accused is regarding non joining of the public witnesses and the technicalities in getting the FIR registered. Non joining of public witnesses does not falsify the testimony of the complainant. PW6 SI Rajender Singh has stated that they reached in the park at about 6.30 pm. At that time no eye witness was present as the incident was of after noon of that day. Hence, non joining of the witnesses of the park has been duly explained by the IO. Moreover, any technical irregularity on the part of the Investigating Officer does not absolve the guilt of the accused.
9. The statement of the witnesses is credit worthy as no FIR No. 167/13 State v. Devender Singh Tomar Page Number 10 of 16 contradiction in their testimony could be raised despite cross examination. The defence has failed to advance any justifiable reason for the complainant to depose against him. There is no reason to doubt the credibility of the said witnesses regarding the occurrence of incident. Their testimony satisfies all the ingredients of the offence U/s 354A/509 IPC against the accused. The accused Devender Singh Tomar made physical contact and advances involving unwelcome and explicit sexual overtures to the complainant by putting his hand on the shoulder of the complainant and touching his thigh three times despite her resistance.
10. The Shorter Oxford English Dictionary (Third edition) define the word modesty as "decorous in manner and conduct : not forward or lewd : shame fast". Hence, in relation to woman "womanly propriety of behaviour, scrupulous, chastity of thought, speech and conduct for the offence u/s 509 IPC, there has to be an intention to insult the modesty of a woman coupled with the fact that the insult is caused i.e. complainant understand that she is insulted. In this case the accused asked the complainant to come to his house at about 6.30 pm when he is free at they will enjoy in the cooler at home as there is no one at home at that time. These words were perceived by the complainant as shocking to her sense of decency and insult to her FIR No. 167/13 State v. Devender Singh Tomar Page Number 11 of 16 modesty.
11. In view of the above discussion accused stands convicted for the offence U/s 354A/509 IPC. Put up for hearing on the quantum of sentence on 26.11.2015.
Announced in open Court on this 20th day of November, 2015 Susheel Bala Dagar Metropolitan Magistrate Mahila Court02,North West Rohini Courts, Delhi All pages signed.
FIR No. 167/13 State v. Devender Singh Tomar Page Number 12 of 16 FIR No.167/13 PS Ashok Vihar State v. Devender Singh Tomer 10.12.2015 ORDER ON SENTENCE Present: Ld. APP for the State.
Convict with Ld. Counsel Sh. Pradeep Kumar Sharma. Complainant with her father in person.
Arguments on the point of sentence on behalf of Ld. APP for State and Ld. Counsel for the convict have already been heard. Today I have heard the complainant in the Court today.
Complainant submits that she trusted the convict as he was father of her friend and also a friend to her father for the last 20 years. She submits that no leniency be shown to the convict.
Ld. Counsel for convict submits that convict is a middle age man of about 42 years of age and his having of two daughters aged about 19 years and 10 years. Convict is the sole bread earner of his family. This is the first involvement of the convict in any offence and he has shown genuine remorse for the same.
Ld. APP for the State has opposed the aforesaid submissions of the convict and has submitted that the maximum punishment be awarded to the convict, so that a deterrent message be FIR No. 167/13 State v. Devender Singh Tomar Page Number 13 of 16 sent to the society and like minded people be discouraged from entering into crime against woman. Heard. Record perused.
The sentencing is a delicate act in which the Court is required to take the over all view of the facts and circumstances of the case and the Court cannot be oblivious of the fact that the sentence should serve prolific purpose of serving the society at large. The convict must be awarded such a sentence, which discourages the other like minded people of the society from such offences. In the present case the convict is already known to the family of the victim be a friend of the father of the victim since the last 20 years. The father of the victim trusted the convict and allowed his daughter to go for computer class with the convict at the mere submission of the convict that she will join computer classes with his daughter. The convict not only broke the trust of his friend with whom he was having friendship for the last 20 years but also shocked the conscience of the victim/ complainant who was almost of the same age as that of the daughter of the convict.
In the light of the facts and circumstances of the case and by balancing the mitigating or extenuating and aggravating factors, I am of the opinion that the convict namely Devender Singh Tomer be sentenced simple imprisonment for one year and pay compensation to FIR No. 167/13 State v. Devender Singh Tomar Page Number 14 of 16 the victim/complainant in the sum of Rs.5,000/ for the offence under Section 354A IPC within one month from today i.e. on 09.01.2016 in default simple imprisonment for three months and sentenced simple imprisonment for one year and pay compensation to the victim/complainant in the sum of Rs.5,000/ for the offence under Section 509 IPC within one month from today i.e. on 09.01.2016 in default simple imprisonment for three months. Both the sentences shall run concurrently. Benefit of Section 428 Cr.PC given to the convict. Convict is remained in J/C for 06.06.2013 to 02.07.2013. Ordered accordingly.
Copy of the order be given to the convict, free of costs today itself.
Announced in the Open Court Susheel Bala Dagar th On this 10 day of December, 2015 Metropolitan Magistrate Rohini Courts, Delhi.
At this stage, An application u/s 389 Cr.P.C is moved on behalf of the convict. Heard. The sentence of the convict is suspended for one month for allowing him to file appeal / serve the sentence subject to FIR No. 167/13 State v. Devender Singh Tomar Page Number 15 of 16 his furnishing bail bonds in the sum of Rs.25,000/.Bonds furnished by convict Devender Singh Tomer. The same is accepted till 09.01.2016. Complainant has taken notice of the next date of hearing in the Court.
Susheel Bala Dagar Metropolitan Magistrate Rohini Courts, Delhi.
FIR No. 167/13 State v. Devender Singh Tomar Page Number 16 of 16