Delhi District Court
Fir No. 899/2014 State vs . Meena & Ors. Page No. 1 Of 26 on 9 August, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 899/2014
PS: OIA
U/s : 323/325/354/354B/506/509/34 IPC
State v. Meena & Ors.
JUDGMENT
Date of institution : 11.12.2015
Cr.C No. : 95069/2016
Name of the complainant : As per chargesheet.
Name & address of the :1. Meena
accused persons W/o Jitender
2. Amit
s/o Jitender
Both r/o Jhuggi No.E320,
Sanjay Colony, OIA, N.Delhi
3.Vicky
s/o Bhuneshwar
r/o Jhuggi No.E320,
Sanjay Colony, OIA, N.Delhi
4.Kamlesh
w/o Shiv Karan
r/o Jhuggi No.E268,
Sanjay Colony, OIA, N.Delhi
5.Mamta
w/o Ramu
r/o Jhuggi No.E310,
Sanjay Colony, OIA, N.Delhi
FIR No. 899/2014 State Vs. Meena & Ors. Page No. 1 of 26
Offence Complained of : U/s 323/325/354/506/34 IPC
Offence Charged of : U/s 323/325/354/354B/
506/509/34 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Convicted
Date of arguments : 08.08.2018
Date of announcing of order : 09.08.2018
BRIEF FACTS:
1. Brief facts of the case are that the complainant has stated in her complaint dated 29.11.2014 that on 17.10.2014 at around 2.30 PM, she was present inside her house. Her mother namely Meera was having quarrel with their neighbourer namely Meena and upon hearing the noise, she went out of her house and brought her mother back inside the house. Thereafter, she went out and asked accused Meena to go to her house. However, accused Meena caught hold of her hair and pulled the same and called out the name of her son namely, Amit, who came out and caught hold of the neck of the complainant and pressed it. Meanwhile, accused Vicky also came out who was also the relative of accused Meena and had torn the clothes of the complainant. Thereafter, accused Amit had bitten on the hand of the complainant. Thereafter, her mother came out from the house and took the complainant inside. Thereafter, they locked the door of their house but the accused persons kept on knocking the door of the house of the complainant and even abused them and threatened to kill FIR No. 899/2014 State Vs. Meena & Ors. Page No. 2 of 26 the complainant. Thereafter, complainant made a call at 100 number and complainant was taken to hospital by her mother for treatment. Statement of the complainant was recorded by the police officials at her house.
2. Pursuant to this complaint dated 29.11.2014 for the incident dated 17.10.2014 against the accused, FIR was registered on 29.11.2014 and the matter was investigated. Charge sheet was filed on 11.12.2015. The Court took cognizance of offence and summoned the accused persons. Charge was framed against accused persons vide order dated 01.02.2017 for the offence punishable U/s 323/325/354/354B/506/509/34 IPC. Accused persons pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
3. In order to prove its case, prosecution has examined eleven witnesses during trial.
PW1 complainant deposed that on 17.10.2014, at about 2.30pm, she was inside her house and she heard voice of her mother from outside the house. Thereafter, she went out of the house and saw that her neighbours Meena, Kamlesh, Mamta and Ankita (younger daughter of Meena) were quarreling with her mother. She took her mother inside the house but accused Meena alongwith abovesaid other accused persons were hurling abuses continuously. Thereafter, she came out of the house and told to accused Meena to go back her house FIR No. 899/2014 State Vs. Meena & Ors. Page No. 3 of 26 as she already got her mother inside her house. Thereafter, accused Meena caught hold her from her hair and dragged her from the door of her house towards her house, and she called her sons namely Amit and Vicky. Accused Amit caught hold her neck and started pressing her neck and accused Vicky had torn her wearing kurta. Accused Amit bite her on her right hand and abovesaid other accused persons Meena, Mamta, Ankita and Kamlesh were beating her mother. She and her mother were rescued from the accused persons by their neighbour Rajpal and his wife. Thereafter, she alongwith her mother went inside their house and shut the main door of the house but accused persons again started to knock the door and tried to break the door and all accused persons abused them by using filthy language i.e. "behenchod, madarchod, bahar nikal, badi sharif banti hai, bahar nikal badi ijjat wali banti hai" and they threatened to kill them. She called at 100 number and her mother took her to ESIC hospital, Okhla as directed by the police. She was referred to Safdarjung Hospital from ESIC Hospital. The police did not meet them either at ESIC hospital or Safdarjung hospital. She was discharged from Safdarjung hospital in late night. On the next date, her mother again called police at the number which was given to her but police did not come. Again on 19.10.2014, when she was to go police station for giving complaint, and on that day, accused Meena alongwith her family members including Amit, Vicky attacked on her father and gave serious blows on the head of her father with the help of iron rod and FIR No. 899/2014 State Vs. Meena & Ors. Page No. 4 of 26 dandas, due to which he could not go to police station. She again called police at no.100 regarding this incident but police did not pay any heed. Despite several attempts made by them to lodge the complaint against accused, on 29.11.2014 her statement was recorded Ex.PW1/A. She had shown the place of incident to police, who prepared site plan at her instance. Thereafter, her statement under section 164 Cr.P.C. was recorded which was Ex.PW1/B. During crossexamination PW1 deposed that it was correct that her house was surrounded by many houses. It was correct that at the time of quarrel many persons / neighbours gathered there but she did not remember their number. At the time of incident her sister namely Neha was also present in the house. Police recorded her statement only once at her house on 18.11.2014. Witness was confronted with Ex.PW1/A, wherein it was stated that the statement was recorded on 29.11.2014. It was correct that Ex.PW1/A was written by the police official upon her instructions however despite the same, the police official did not write her entire version in it. Police was called at no.100 by her mother on 17.11.2014. She had shown the place of incident to police on 17.11.2014.
Thereafter, Ld. APP for the State reexamined the witness on the point of date of incident to which she deposed that the date of incident was 17.10.2014 and her mother had called police at no.100 on 17.10.2014. She mentioned the date as 17.11.2014 inadvertently since the incident occurred about 3 years ago.
FIR No. 899/2014 State Vs. Meena & Ors. Page No. 5 of 26 PW2 Meera (mother of the complainant) deposed that on 17.10.2014, at about 2.30pm, her neighbours Meena, Kamlesh, Mamta and Ankita (younger daughter of Meena) were quarreling with her in front of her house. At that time daughter/victim was inside the house and after hearing the commotion of quarrel she took her inside the house but they were hurling abuses continuously. Thereafter, her daughter came out of the house and told them to go back their houses as she already got her mother inside the house. She heard the voice of her daughter as she was crying. She came out from the house and saw that her daughter was being caught hold by accused Amit and Vicky and they were pressing her neck. Teeth bite was caused by accused persons on the hand of her daughter. The wearing suit of her daughter was found torn and her daughter told her that accused Amit and Vicky had torn her wearing clothes. Thereafter all accused persons started beating her and her daughter. PW2 and her daughter were rescued from the accused persons by their neighbour Rajpal and his wife. Thereafter, she alongwith her daughter went inside their house and shut the main door of the house but accused persons again started to knock the door and tried to break the door and all accused persons abused them by using filthy language i.e. "badi ijjat wali banti hai, randi, abhi ijjat utarunga, rape karunga". PW2 and her daughter called at 100 number and she took her daughter to ESIC hospital, Okhla as directed by the police to take her ESIC hospital. Her daughter was referred to Safdarjung Hospital from ESIC Hospital.
FIR No. 899/2014 State Vs. Meena & Ors. Page No. 6 of 26 The police did not meet them either at ESIC hospital or Safdarjung hospital. Her daughter was discharged from Safdarjung hospital at late night. On the next date, she again called police at the number which was given to her but police did not come. Again on 19.10.2014, when they were to go police station for giving complaint, and on that day, accused Meena alongwith her family members including Amit, Vicky attacked her husband and gave serious blow on the head of her husband with the help of iron rod and dandas, due to which they could not go to police station. They again called police at no.100 regarding this incident but police did not pay any heed. Despite several attempts made by them to lodge the complaint against accused, almost 2025 days after the incident, statement of her daughter was recorded by police and police came to the place of incident alongwith them and prepared site plan at the instance of her daughter.
During crossexamination PW2 deposed that it was correct that the place of incident was thickly populated area and many houses were surrounded there. There were many persons namely Jitender, Virender Singh, Amit, Sumit, Deepak, Bhuvneshwar, Meena and her parents, Raj Kumari, Mamta, Kamlesh, and Ankita, present at the spot at the time of quarrel. All aforesaid persons were quarreling with her and her daughter. She alongwith her daughter were rescued from the accused persons by Rajpal and his family members. Police reached at the spot after one hour of the time of incident. Police had not recorded her statement. It was correct that police official had taken FIR No. 899/2014 State Vs. Meena & Ors. Page No. 7 of 26 statement of her daughter in her presence later on after 2 months. It was wrong to suggest that no such incident taken place and accused persons were falsely implicated to take benefit in a case filed by accused persons against her.
PW3 Rajpal (neighbour of the complainant) deposed that on the day of incident i.e. 17.10.2014 at around noon time he was taking meal in his house. Suddenly, he heard some commotion outside of the house. Thereafter, he alongwith his son Brijesh and my wife Kamla came out from the house and saw that on the same street, there was quarrel between family of the complainant namely Meera and Archana and family member of the accused persons namely Amit, Vicky, Meena, Mamta and Kamlesh. He alongwith his family members settled both the parties and noticed that hair of Meera was scattered and uncombed during the said quarrel. He did not remember whether her wearing clothes were also found torn. Meera and her mother were taken back to their house. Thereafter, accused persons told him as to why he intervened Meera and her mother and rescued and removed them from the quarrel. Thereafter, he tried to make them understand as to why they were quarreling with each other and he also suggested them not to do so otherwise all were ruined without any reason and he left the spot with his family member.
During crossexamination PW3 deposed that he did not know whether the police official reached at the spot after the incident or not. However, on the next day police official reached there. Police FIR No. 899/2014 State Vs. Meena & Ors. Page No. 8 of 26 Official inquired him and his son, recorded their statement after 34 days of the incident. Police did not record the statement of his wife. Apart from him and his family members, other persons also intervened to remove the aforesaid quarrel. Other public persons were tried to remove the said quarrel orally and they did not intervene to rescue the same. He did not remember the exact number of those persons and their names.
PW4 Brijesh Kumar (neighbour of the complainant) deposed that on the day of incident i.e. 17.10.2014 at around noon time that is at 2.00 2.30 pm, he alongwith his father was having meal in his house. Suddenly, he heard some commotion outside the house. Thereafter, he alongwith his father Rajpal and his mother Kamla came out from the house and saw that on the same street there was quarrel between family of the complainant namely Meera and Archana and family member of the accused persons namely Amit, Vicky, Meena, Mamta and Kamlesh. He alongwith his family member removed both the parties from the said quarrel and at that time noticed that hair of Meera was found scattered and uncombed during the said quarrel. The wearing cloth of Meera was found torn. Meera and her mother were taken back to their house and he also left the spot. When he came back from his job in the evening, he came to know from his father that accused persons told him as to why he intervened Meera and her mother and rescued and removed them from the quarrel. Thereafter, FIR No. 899/2014 State Vs. Meena & Ors. Page No. 9 of 26 he tried to make them understand as to why they were quarreling with each other.
During crossexamination PW4 deposed that it was wrong to suggest that no quarrel took place between complainant and accused persons in his presence. Police did not reach in his presence as he left the spot. He did not know whether the police official reached at the spot after the incident or not. However, on the next day police official reached there. Police Official inquired him and recorded his statement later on. Police did not record the statement of his wife. Accused Amit and Vicky were not participated in quarrel in her presence. The wearing cloth of Meera was suit but he did not know it's color. No other public persons joined to intervene the aforesaid quarrel.
PW5 Const. Dharambir Singh deposed that on 29.11.2014, he was posted at PS OIA. On that day, he joined the investigation in the present case. He alongwith IO ASI Suresh Chand went to residence of complainant at E267, Sanjay Colony, Okhla, Phase2 where statement of complainant was recorded by the IO and IO prepared a rukka and handed over the same for the registration of FIR. He came back to PS and handed over the complaint alongwith rukka to the duty officer and after registration of FIR, he received original rukka and copy of FIR and the same was handed over to the IO at the spot. IO prepared the site plan at the instance of complainant. On 25.07.2015, he again joined the investigation of present case FIR No. 899/2014 State Vs. Meena & Ors. Page No. 10 of 26 alongwith IO SI Baldev Singh. On that day, accused Meena was arrested in his presence.
During crossexamination PW5 deposed that departure entry might had been made by the IO but he did not have any personal knowledge regarding the same. He left PS alongwith IO at about 6.00 PM and reached the spot around 6.20 PM. He went to PS alongwith rukka for registration of FIR at 6.40 PM. He did not know if IO had inquired from the public person regarding the incident. It was correct that he did not sign the arrest memo of accused Meena. It was wrong to suggest that he did not join the investigation in the present matter. They reached the house of accused Meena at around 2.30 PM. The house of the accused Meena was a jhuggi near the Masjid. It was correct that the place of arrest was a populated area. IO had inquired from the public persons present near the house of accused Meena and the arrest memo was prepared at the house of accused Meena.
PW6 SI Rakesh Kumar (Duty Officer) deposed that upon receiving complaint, he registered the FIR vide Ex.PW6/A and endorsed the rukka vide Ex.PW6/B. Opportunity to crossexamine PW6 was granted to the accused but he did not question anything to the witness.
PW7 SI Rajender (First IO) deposed that on 29.11.2014, he was posted at PS Okhla. On that day, he received original rukka and copy of FIR at PP OIEA from Const. Dharamvir and the further investigation of the present case was marked to him. Thereafter, he FIR No. 899/2014 State Vs. Meena & Ors. Page No. 11 of 26 alongwith Const. Dharamvir went to the spot i.e. E320, Sanjay Colony, PhaseII, OIA, New Delhi at around 08:00 PM where complainant Archana and her mother Meera met them. He prepared site plan at the instance of complainant which was Ex.PW7/A. Thereafter, he recorded supplementary statement of complainant and statement U/sec 161 CrPC of Meera and Const. Dharamvir. He tried to search the accused Meena and others at their residence i.e. E320 and E309, Sanjay Colony, Okhala PhaseII but they were not found present there. Thereafter, they came back at PP. On 18.11.2014, case file was handed over to another IO SI Baldev Raj as further investigation of present case was marked to him.
During crossexamination PW7 deposed that the house of complainant was opposite to house No. E320, Sanjay Colony, Okhala Phase II. He asked several public persons to join the investigation but none agreed. No written notice was served upon them. It was wrong to suggest that he had not conducted the investigation properly. It was wrong to suggest that neither he joined the investigation nor visited the spot. It was wrong to suggest that all paper work was done while sitting in the PS. PW8 SI Suresh Chand deposed that on 29.11.2014, he was posted at PS OIA. On that day at around 06:00 PM, complainant Archana came at PS and had given a written complaint Ex.PW1/A. On the basis of said complaint, he prepared rukka Ex.PW8/A and got FIR No. 899/2014 State Vs. Meena & Ors. Page No. 12 of 26 registered FIR. After registration of FIR, investigation of present case was marked to another IO ASI Rajender.
Opportunity to crossexamine PW8 was granted to the accused but he did not question anything to the witness.
PW9 SI Baldev Raj deposed that on 18.12.2014 he was posted at PS OIA. On that day he received present case file from MHC(R) as further investigation of present case was marked to him. During investigation on 06.01.2015, he applied for recording of statement u/s. 164 Cr.PC of the complainant and the same was recorded. Prior to giving opinion regarding nature of injury by the concerned doctor, he required reexamination of complainant/ Arachna. Thereafter, her reexamination got conducted on 01.05.2015 and thereafter opinion regarding nature of injury was obtained from concerned doctor on MLC of injured Archna and attached with the file. On 26.06.2015 accused Amit was arrested and his personal search was conducted vide memos Ex.PW9/B and Ex.PW9/C. On 23.07.2015 accused Vicky was formally arrested vide memo Ex.PW9/D. On 25.07.2015 accused Meena was arrested vide memo Ex.PW5/A. He recorded statement of witnesses and after completion of investigation challan was prepared and filed in the Court.
During crossexamination PW9 deposed that accused Amit was arrested at police post Okhla PaseIII as his father himself produced him at the police post. It was wrong to suggest that he had not conducted fair investigation and accused persons were falsely FIR No. 899/2014 State Vs. Meena & Ors. Page No. 13 of 26 implicated with the connivance of complainant. It was wrong to suggest that entire proceedings were conducted at PS. PW10 Sh. Hayat Singh (Medical Record Technician from Safdarjung Hospital) deposed that he had been working as Medical Record Technician in Safdajung hospital since 2000. He identified the signature of Dr. Sanjay Sharma, Dr. Meetu Salan, Dr. Chetna Chaudhary and Dr. Ayush Malhotra as he had seen them signing during the course of their duty in the hospital. He deposed that whereabouts of Dr. Sanjay Sharma, Dr. Meetu Salan, Dr. Chetna Chaudhary and Dr. Ayush Malhotra were not known to him. He could also identify the signature of Dr. Sudhir K.C who had signed the MLC Ex.PW10/B. Thereafter, Xray report Ex.PW10/C bearing no.18533/17.10.2014 from in CCT Head (emergency department) prepared by Dr. Minal Chaudhary was shown to the witness who identified the signature of Dr. Minal Chaudhary.
Opportunity to crossexamine PW10 was granted to the accused but he did not question anything to the witness.
PW11 Dr. Meetu Salhan (Specialist Paediatrics, Safdarjung Hospital) deposed that in the year 2014, she was working as a Medical officer in Casualty, Safdarjung hospital. On 17.10.2014, injured Archana was medically examined by Dr. Chetna Chaudhary who had prepared MLC Ex.PW10/B. She also checked the said MLC. Witness explained the injury mentioned in the MLC and stated regarding opinion being given as 'grievous blunt' thereon. As per the FIR No. 899/2014 State Vs. Meena & Ors. Page No. 14 of 26 MLC, the injured Archana had sustained following injuries like bite mark over the right cheeks near the right eye, multiple abrasion over the right side of the neck, bite mark over the right forearm, abrasion over the left side of the chin and redness present over the right palm (hypothener eminence), she had a history of loss of consciousness, headache, generalise bodyache and difficulty in speaking. Patient was referred for further evaluation to Neuro Surgery department, Opthalmology and ENT department. In Neuro Surgery department, non contract CT was done which showed a normal record which was Ex.PW10/C. In ENT department, the patient was evaluated and found to have traumatic perforation of the left tympanic membrane vide ENT report dated 17.10.2014 which was Ex.PW11/A. Further, Audiometry was done which showed conductive hearing loss in the left ear which suggest permanent privation of hearing of left ear of the injured Archana vide audiometry report dated 01.05.2015 pertaining to injured Archana which was Ex.PW11/B and as per the aforesaid evaluation report, Dr. Sudeep K.C. opined the nature of injury as grievous blunt on MLC Ex.PW10/B. During crossexamination PW11 deposed that it was correct that she did not have any personal knowledge regarding the fact and incident of this case. It was correct that alleged history of MLC does not disclose the name of accused persons. It was wrong to suggest that MLC does not bear any physical injury of injured.
FIR No. 899/2014 State Vs. Meena & Ors. Page No. 15 of 26
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused persons. Accused persons denied the allegations of prosecution as false and pleaded false implication.
5. Accused persons did not examine any witness in their defence.
6. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel.
7. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses. He has further argued that the testimony of the complainant is corroborated by other witnesses examined by the prosecution and even the MLC of the complainant reflects that she had sustained injuries in the nature of grievous hurt. Further, there is no contradiction in the testimony of any of the witnesses and therefore, accused persons are liable to be convicted for the offences charged.
8. However, on the other hand Ld. Counsel for accused has argued that the accused persons have been falsely implicated by the complainant and it is an admitted fact that the complainant and the accused persons are residing in a same locality. It is further argued that the allegations against the accused persons are false and FIR No. 899/2014 State Vs. Meena & Ors. Page No. 16 of 26 fabricated and the complaint of the complainant is devoid of merit. Further, the complainant has not even mentioned the date, time of the incident upon which present complaint Ex.PW1/A was registered. Further, the allegations against the accused persons for giving beatings to the complainant and tearing of her clothes and causing injury to her are false and cannot be believed as the incident had occurred on 17.10.2014 that the FIR in the present matter was registered only on 29.11.2014 and the delay of the same itself shows that the testimony of the complainant is not reliable. Further, the present complaint was filed by the complainant after having spoken to her family members and therefore, the same was registered after a gap of more than one month and the delay of lodging an FIR has not been explained. It is further argued that there is no corroboration in the testimony of the witnesses and the statement of the complainant. It is also argued that the complaint is vague and the allegations are fanciful and do not inspire confidence and therefore, accused persons are liable to be acquitted. He has further argued that the torn clothes of the complainant were never seized and none of the public persons present on the spot were examined. Further, police did not reach the spot on 17.10.2014 as no such incident occurred.
Court Observation:
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel FIR No. 899/2014 State Vs. Meena & Ors. Page No. 17 of 26 and the material available on record, this court has come to the following conclusion:
In the present matter, prosecution examined as many as eleven witnesses among which PW1 was the complainant, PW2 is the mother of the complainant, PW3 and PW4 are the eye witnesses of the incident and remaining witnesses except witness PW11 are formal witnesses examined by the prosecution.
10. In the present matter, accused namely Meena, Kamlesh, Mamta, Amit, Vicky have been charged for the offences punishable u/s 323/325/506/509/34 IPC and accused Amit and Vicky were also charged with the offence punishable u/s 354/354B/34 IPC. To prove the guilt of the accused persons, for the offences punishable u/s 323/325/506/509/34 IPC, prosecution was required to prove that all the accused persons in furtherance of their common intention voluntarily caused bodily pain, infirmity to the victim or the injured and the same was caused with the knowledge that he would thereby caused hurt to the victim. Further, to constitute an offence u/s 325 IPC, it was required for the prosecution to prove that such voluntary hurt was grievous in nature within the meaning of section 320 IPC.
Also, that the accused persons with their common intention had extended threats to the complainant and had also uttered some words or made some sounds, gestures or exhibited any object which could intrude into the privacy of the woman and the same were made with the intention that such sound or gestures are heard or seen by the FIR No. 899/2014 State Vs. Meena & Ors. Page No. 18 of 26 woman and the same were made with the intention to insult the modesty of a woman.
11. In the present matter, the star witness of the prosecution is the complainant, who is also the victim in the present matter. In her complaint Ex.PW1/A complainant has narrated the ordeal which she went through on 17.10.2014 when all the aforesaid accused persons initially abused the mother of the complainant in filthy language and when she heard the same, she came out to pacify the matter and took her mother inside and requested accused Meena to go back to her house. However, instead of putting an end to the quarrel, accused Meena pulled the hair of the complainant and alongwith other co accused persons started giving beatings to the complainant. Accused Meena also called coaccused Vicky and Amit to join her in beating, complainant/victim. Aforesaid accused namely Vicky and Amit caught hold of the complainant and accused Amit even pressed the neck of the complainant and torn the clothes of the complainant. Further, accused Amit had bitten the complainant on her hand which is corroborated by the MLC Ex.PW10/B and is also mentioned in the opinion Ex.PW10/C. Further, the OPD record pertaining to the incident dated 17.10.2014 also clarifies and mentions various injuries sustained by the complainant and mentioned in report Ex.PW11/A. It has been stated by PW11 that "regarding opinion being given as 'grievous blunt' thereon. As per the MLC, the injured Archana had FIR No. 899/2014 State Vs. Meena & Ors. Page No. 19 of 26 sustained following injuries like bite mark over the right cheeks near the right eye, multiple abrasion over the right side of the neck, bite mark over the right forearm, abrasion over the left side of the chin and redness present over the right palm (hypothener eminence), she had a history of loss of consciousness, headache, generalise bodyache and difficulty in speaking. Patient was referred for further evaluation to Neuro Surgery department, Opthalmology and ENT department. In Neuro Surgery department, non contract CT was done which showed a normal record which was Ex.PW10/C. In ENT department, the patient was evaluated and found to have traumatic perforation of the left tympanic membrane vide ENT report dated 17.10.2014 which was Ex.PW11/A". The aforesaid narration of the complaint Ex.PW1/A is corroborated with the statement of the complainant recorded u/s 164 CrPC which was Ex.PW1/B. Also, the complainant is supported in her testimony by PW2 being her mother who was also the victim of the incident. Further, it had been stated by the complainant in her statement recorded u/s 164 CrPC (Criminal Procedure Code) that during the aforesaid scuffle, her neighbourer namely Rajpal came and rescued her from the clutches of the accused persons, which also finds mention in the testimony of PW3 Rajpal and his son PW4 namely Brijesh Kumar.
12. In the present matter, the complainant has however not mentioned the exact abuses hurled upon her by the accused persons in her complaint Ex.PW1/A but the same are explained by the FIR No. 899/2014 State Vs. Meena & Ors. Page No. 20 of 26 witness/victim in her testimony before the court and the same in no manner can be treated as an improvement, since the same were extremely vulgar and the witness cannot be expected to be writing the same, but she has explained them during her testimony recorded before the court. The complainant also has stated the manner in which she was threatened by the accused persons in her statement Ex.PW 1/A, Ex.PW1/B and also during her statement recorded before the court and has categorically stated that the accused persons had threatened to kill her. Therefore, in my considered view and after considering the testimony of witness PW1, PW2, PW3 and PW4 and also carefully perusing the MLC of the victim dated 17.10.2014 wherein there are specific words mentioned "alleged history of physical assault by neighbourers on 17.10.2014" and the same also finds mention in medical documents Ex.PW10/B, Ex.PW10/C and medical documents Ex.PW11/A, and the same lends support to the testimony of the witnesses. It is also a fact that there was MLC on record of accused Meena of the same date which also corroborates the fact that on the date of incident, the police officials had reached the spot and had taken the accused persons and complainant/victim PW1 to the hospital but had purposely not registered the complaint of the complainant.
13. As far as the delay in lodging of FIR is concerned, I believe the same has been explained by the complainant when she has narrated during her testimony, that on several occasions, she had approached FIR No. 899/2014 State Vs. Meena & Ors. Page No. 21 of 26 the police officials to register an FIR, but the same was delayed, despite the fact that her medical evidence was on record and the police officials were well aware about the incident dated 17.10.2014, since they had accompanied the accused Meena to the hospital, but had asked the injured/complainant to reach Safdarjung hospital for medical.
14. In the present matter, accused Amit and Vicky have also been charged for the offence u/s 354/354B/34 IPC apart from the offences punishable u/s323/325/506/509/34 IPC. To bring home the guilt of the accused persons namely Amit and Vicky for the offences punishable u/s 354/354B IPC, prosecution was required to prove that they committed physical sexual assault upon the complainant and used criminal force upon her with the intention to outrage her modesty and that the accused persons knew that the modesty of the woman would be outraged thereby. Further, for the offence punishable u/s 354B IPC, it was required for the prosecution to prove that the accused persons used such criminal force upon the complainant and the same was done with the intention for disrobing or compelling the woman to be naked.
15. In the present fact and circumstances, both accused person Amit and Vicky are liable for the offence u/s 354 IPC since, the complainant has deposed on the lines of her complaint and has specifically narrated the manner in which the incident had occurred. She has also narrated the facts of her complaint in corroboration with FIR No. 899/2014 State Vs. Meena & Ors. Page No. 22 of 26 her statement recorded u/s 164 CrPC and reiterated the same during her testimony before the court. Accused has failed to shake the credibility of the complainant by means of crossexamination or by way of leading any probable defence. The factum of the complainant and accused being on spot is corroborated by the fact that when the complainant raised alarm, public persons reached the spot and it was PW3 who rescued the complainant from the clutches of the accused persons. The same is reiterated by the complainant and PW2 and PW4 also. Further, it is not the case of the accused persons that they were not present at the spot and has not even taken the defence of being not present on the spot even during their statement recorded u/s 313 CrPC. In the present matter, the accused persons were fully aware of the fact that they would be apprehended and therefore, left the spot and it was only accused Meena who was taken by the police for medical examination on 17.10.2014.
16. It is settled law that to constitute the offence u/s 354 IPC, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. Intention is not the sole criterion of the offence 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 the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. Therefore, the existence of intention or knowledge FIR No. 899/2014 State Vs. Meena & Ors. Page No. 23 of 26 has to be ascertain from various circumstances in which and upon whom the alleged offence is alleged to have been committed. Further, "woman" is defined as a female human being of any age. It has been held in catena of judgments that the term "modesty" is defined as a quality of being modest and in relation to a woman "womenly propriety of behaviour, scrupulous chastity of thought, speech and conduct". It is reserve or essence of shame proceeding from instinctive aversion to impure or coarse suggestions, the essence of a women's modesty is her sex and the culpable intention of the accused is the crux of the matter. The ultimate test for ascertaining whether modesty of a woman has been outrage is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. In the present matter, the fact that when PW3 and PW4 saw the complainant and rescued her from the clutches of the accused persons, her hair were scattered and further the fact that accused had bitten on her hands is also evident from the MLC available on record. For an offence u/s 354, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. By evaluating the evidence, the court must remain alive of the fact that in the cases relating to sexual assault, no self respecting women from any strata of society would come forward in a court just to make a humiliating statement against the honour of the victim who was of young age.
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17. In cases involving sexual molestation, supposed considerations which had no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such as are of fetal nature, be allowed to throw out and otherwise reliable prosecution case. Further, it was held in State Vs. Gurmeet Singh (1996) 2 SCC 384 that "the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation."
18. It has also been held by Supreme Court in the matter of "State Vs. Major Singh AIR 1967 SC 63" that "when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act will fall within this section. 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, as for example, when the accused with the corrupt mind stealthily touches the flesh of a sleepy woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless the offender is punishable under this section". Therefore, in view of the above discussion and in the present facts and circumstances, I am of the considered view that accused Amit and Vicky had on the date of incident outrage the FIR No. 899/2014 State Vs. Meena & Ors. Page No. 25 of 26 modesty of the complainant having knowledge and intention for doing so.
19. Therefore, in my considered view the guilt of accused persons are proved beyond reasonable doubt and accordingly, accused Meena, w/o Jitender, Kamlesh w/o Shiv Karan, Mamta w/o Ramu, Amit, s/o Jitender, Vicky, s/o Bhuneshwar are convicted for the offences punishable u/s 323/506/509/34 IPC and accused Amit s/o Jitender and Vicky s/o Bhuneshwar are also convicted for the offences punishable u/s 354/34 IPC. There is no evidence on record against accused Amit and Vicky for the offences punishable u/s 354B/34 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 09.08.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.08.10
12:40:37
+0530
FIR No. 899/2014 State Vs. Meena & Ors. Page No. 26 of 26