Delhi District Court
Fir No.337/03 State vs . Chhota @ Ishaq Ps: Patel Nagar on 3 March, 2015
FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar
IN THE COURT OF MS. EKTA GAUBA:
METROPOLITAN MAGISTRATE
(MAHILA COURT03),WEST, TIS HAZARI COURTS,
DELHI
State Vs. Chhota @ Ishaq
FIR No : 337/03
P.S. Patel Nagar
U/s 354 IPC
JUDGMENT
1. Case Unique I.D. No. : 02401R0230152013
2. Date of complaint : 08.08.2003
3. Name, parentage & address of : Chhota @ Ishaq
the accused S/o Mohd. Ilyash
R/o T2604, Baljeet
Nagar, Delhi.
Presently R/o G186,
Gali No.2, Gulshan
Chowk, Baljeet
Nagar, Patel Nagar, New
Delhi110008.
4. Offence complaint of : U/s 354 IPC
5. Plea of accused : Pleaded not guilty
6. Final order : Ordered
7. Date of Order : 28.02.2015
BRIEF REASONS FOR SUCH DECISION :
1. Accused has been forwarded by the SHO of PS Patel State Vs. Chhota @ Ishaq Page No. 1 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar Nagar to face trial U/s 354 IPC.
2. In a nut shell, the prosecution story is that complaint was made by complainant PW minor victim on 08.8.2003 that in the intervening night of 06.08.2003 and 07.08.2003, she was sleeping on the roof and her mother was sleeping in the room at the lower floor and her father has gone for duty and apart from her on the roof her landlord's son Chandan, Chandan's grandmother, Chandan's maternal uncle and Chandan's parents were also sleeping on the roof and another tenant namely accused Chhota was also sleeping on the roof. She further stated that in the night accused Chhota came and sat near her and took off her panty (underwear) and accused Chhota put his finger on her private part and she slapped the accused Chhota and she wore back her panty. She further stated that after sometime, accused Chhota again put his finger on her priate part and at this time accused Chhota did not took off her panty and she suffered intense pain and she woke up and while crying she went to her mother and her mother came to the roof and beat the accused Chhota with a footwear and her mother told accused Chhota that she would tell him in the morning and she along with her mother came back downstairs in their room and slept and in the morning, accused Chhota was not available and accused Chhota should be caught and State Vs. Chhota @ Ishaq Page No. 2 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar beaten up. On this complaint, FIR was registered, accused was arrested and after completion of remaining investigation, Charge Sheet was filed in the Court.
3. Copy of charge sheet was supplied to the accused free of cost U/s 207 Cr.P.C.
4. Finding a prima facie case U/s 354 IPC, notice was served upon the accused Chhota @ Ishaq, to which accused Chhota @ Ishaq pleaded not guilty and claimed trial.
5. Prosecution to prove its case examined twelve witnesses namely PW1 ASI Somvir Singh, PW2 ASI Mahender Singh, PW3 Nagender Singh, PW4 minor victim, PW5 Dr. Rajat Mitra, PW6 Ct. Kanwar Singh, PW7 Dr. Nidhi Mitra, PW8 Ct. Balwan Singh, PW9 Desh Raj, PW10 Retd. ACP Nirmal Kaur, PW10A Rinku Devi and PW11 Inspector R.P. Minz.
6. Statement of accused U/s 313 Cr.P.C. was recorded separately wherein accused denied all the allegations levelled against him and stated that he was falsely implicated by Nagender Singh, Rinku Devi and PW minor victim because they wanted to occupy his State Vs. Chhota @ Ishaq Page No. 3 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar room because their room was in basement and there was no facility of toilet, bathroom and kitchen in the basement and she used to quarrel with him and the PW minor victim used to sleep with her mother in the basement and on the date of alleged incident, PW minor victim was sleeping with her mother and he was sleeping on the terrace with Niranjan, Chandan, Gudia and parents of the mother of the landlord and the mama of Gudia and the victim never used to sleep on the terrace and he is innocent and he has been falsely implicated in this case.
7. Accused chose to lead defence evidence and examined DW1Sunil Singh and thereafter, accused has closed his defence evidence vide his separate statement recorded.
8. I have heard the arguments advanced by the Ld. APP for the State as well as the ld. defence counsel and gone through the case file carefully and thoroughly.
9. Prosecution in order to prove its case examined formal witnesses like PW1 ASI Somvir Singh and he stated that on 07.08.2003 at 11:30 p.m., he recorded the information given by Ct. Kanwar Singh on telephone from DDU Hospital vide DD No.28A State Vs. Chhota @ Ishaq Page No. 4 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar which is Ex.PW1/A. PW2 ASI Mahender Singh was examined and he stated that on 08.08.2003, on the rukka handed over to him by W/SI R.P. Minz he registered the present FIR which is Ex.PW2/B and he made endorsement on rukka which is Ex.PW2/A. PW6 Ct. Kanwar Singh deposed that on 07.08.2003, he got conducted the medical examination of PW minor victim who came alongwith her father to the hospital and he informed PS Patel Nagar about the incident vide DD No.28A dated 07.08.2003 which is already Ex.PW1/A.
10. Prosecution in order to prove its case examined its most crucial witness namely PW4 minor victim i.e. complainant cum victim cum sole eye witness and she stated that she know the accused present today, his name is Chhota and he was living at the place where they were residing and while she was sleeping on the roof, accused did 'Gandi Baat' and he had opened her undergarment and put his finger in her private part. She further stated that she raised alarm, her mother came and questioned him and when her mother told him that she would see him in the morning, he ran away and her statement is Ex.PW4/A recorded by the police. PW4 minor victim was reexamined and in her reexamination, she stated that she was told by her parents to tell the truth as to what had happened State Vs. Chhota @ Ishaq Page No. 5 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar with her to the police when they took her to the police station and thereafter, when she was produced before the Ld. Judge and thereafter again today, she was not told to speak lie about the incident.
11. Prosecution in order to prove its case examined PW10ARinku Devi mother of minor victim and she deposed that in the month of August, 2003 in the night and at that time she along with her husband and her daughter PW minor victim resided in a rented accommodation at Baljeet Nagar and at that time of alleged incident, her daughter was around 8 years old and on the date of incident her daughter PW minor victim was sleeping on the terrace along with other children and accused Chhota who was also a tenant in the same premises was sleeping on that day on the terrace and she was sleeping inside the room on the ground floor. She further deposed that in the midnight suddenly her daughter PW minor victim came down stairs and she was crying at that time and when she asked her the reason of crying, upon which the PW minor victim disclosed that accused Chhota had came near her and took off her panty and inserted his finger in her private portion and her daughter objected, but after some time again accused Chhota inserted his finger at the same place and on this her daughter PW minor victim State Vs. Chhota @ Ishaq Page No. 6 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar on feeling pain came down. She further deposed that upon which she inquired the incident from accused and also beat the accused with a footwear and she came down stairs and it was night. She further stated that she disclosed the incident to her husband and thereafter, the matter was reported to the Police and she also correctly identified the accused Chhota present in the court.
12. Prosecution in order to prove its case, examined PW3 Sh. Nagender Singh father of minor victim and he deposed that in the month of August, 2003 his daughter PW minor victim was sleeping on the roof and her mother was sleeping inside the room on the ground floor and some children of the tenants and the accused Chhota present in the Court were also sleeping on the roof and accused Chhota was also a tenant of the same premises. He further deposed that his daughter told him about the incident that accused Chhota had removed her panty and also did wrong acts on her private parts. He further stated that on the next day in the morning the accused ran away from his rented room and he told this fact to his brother in law and then, they made complaint at PS Patel Nagar and statement of his daughter was also recorded in the police station and his daughter was taken for medical examination to DDU Hospital. He further stated that he did not accompanied his daughter State Vs. Chhota @ Ishaq Page No. 7 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar to the hospital.
13. Prosecution examined PW5 Dr. Rajat Mitra, PW7 Dr. Nidhi Mitra and PW10 Retd. ACP Nirmal Kaur and they deposed that they visited the PW minor victim for her counselling on the call received from the police of PS Patel Nagar in the year 2003 and PW minor victim told them about the incident and they found PW minor victim was crying and traumatized and they counselled her and calmed her and IO recorded their statements. PW9 Desh Raj Record Clerk DDU Hospital was examined and he proved the original MLR no.15485 dated 07.08.2003 is Ex.PW9/A and bears the signatures of Dr. Vivek Goel at point A as he could identify the handwriting and signatures of Dr. Vivek Goel.
14. Prosecution in order to prove its case examined PW11 Inspector R.P. Minz, Investigating Officer and she stated that on 07.08.2003, DD No.28A which is already Ex.PW1/A was marked to her and she along with other police officers went to the DDU Hospital and medical examination of PW minor victim was got conducted and she informed the NGO as it was a molestation case and after some time, in the presence of Sampuarn Behra (from NGO) and Dr. Rajat Mitra, Dr. Nidhi Mitra and Inspector Nirmal State Vs. Chhota @ Ishaq Page No. 8 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar Kaur from Women Help Line and father of the victim, made enquiry from the child victim and recorded her statement which is already Ex.PW4/A and she made endorsement on the statement of victim and the said endorsement is Ex.PW11/A and she got the case registered through the Duty Officer and she prepared the site plan Ex.PW11/B at the instance of the victim and she also produced the victim before the Hon'ble Judge for recording of her statement u/s 164 Cr.P.C. and the application for recording of statement of victim u/s 164 Cr.P.C. and the statement of the victim recorded by Ld. MM u/s 164 Cr.P.C. is jointly Ex.PW11/F (colly.). PW11 Inspector R.P. Minz and PW8 Ct. Balwan Singh stated that the sealed pulanda etc. from the doctor was taken into possession vide memo Ex.PW8/A. PW11 Inspector R.P. Minz further stated that she also searched for the accused as the accused was absconding and on 21.08.2003 accused surrendered in the Court and she arrested the accused vide arrest memo Ex.PW11/C and conducted personal search of the accused vide personal search memo Ex.PW11/D and during custody, accused made the disclosure statement recorded by her is Ex.PW11/E and she correctly identified the accused present in the Court and she recorded the statements of the witnesses and she completed the investigation and filed the charge sheet. Ld. APP for the State contended that there has been consistency in the version of State Vs. Chhota @ Ishaq Page No. 9 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar PW4 minor victim and her testimony is fully corroborated by other prosecution witnesses. Ld. APP for the State contended that the prosecution is able to prove its case beyond reasonable doubt and accused should be accordingly convicted.
15. On the other hand, accused has raised the only defence that he was falsely implicated by Nagender Singh, Rinku Devi and PW minor victim because they wanted to occupy his room because their room was in basement and there was no facility of toilet, bathroom and kitchen in the basement and she used to quarrel with him and the PW minor victim used to sleep with her mother in the basement and on the date of alleged incident, PW minor victim was sleeping with her mother and he was sleeping on the terrace with Niranjan, Chandan, Gudia and parents of the mother of the landlord and the mama of Gudia and the victim never used to sleep on the terrace and he is innocent and he has been falsely implicated in this case. To prove his defence, accused has examined DW1 Sunil Singh and he stated that in the month of August, 2003 they all were sleeping at terrace and PW minor victim was not sleeping at the terrace and on the next day, he came to know that PW minor victim has filed the case against accused Chhota @ Ishaq and frequently quarrel took place between accused and mother of minor victim on State Vs. Chhota @ Ishaq Page No. 10 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar trivial matters and the accused Ishaq is falsely implicated in the present case. Ld. Defence Counsel contended that accused by examining DW1 Sunil Singh landlord of the said house has proved the defence taken by the accused. Ld. Defence Counsel contended that PW4 minor victim in her cross examination admitted that she was told by her parents to tell the police what she had told in her statement and to tell in Court what she have stated in her examination and she was told by the said lady police officer to tell the Judge as is recorded in her statement u/s 164 Cr.P.C. Ld. Defence Counsel contended that this shows that the testimony of PW4 minor victim could not be relied upon as she being a child witness as she was only aged 8 years old at the time of incident and she is a tutored witness and this fact throws doubt on the prosecution story. Ld. Defence Counsel further contended that conviction could not be based on the testimony of sole eye witness namely PW4 minor victim and this fact further throws doubt on the prosecution story. Ld. Defence Counsel further contended that IO has not examined the other people alleged to be sleeping on the terrace of the said premises on the date of incident and this shows that the investigation has been conducted in a defective manner and this fact further throws doubt on the prosecution story. Ld. Defence Counsel further contended that PW10A Rinku Devi mother of victim in her State Vs. Chhota @ Ishaq Page No. 11 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar cross examination admitted that her husband was not present at the spot or in the room at the time of incident while PW3 Sh. Nagender Singh father of victim stated that his daughter had told him after the incident while she had come running towards him. Ld. Defence Counsel further contended that this shows there is inconsistency in the version of both the prosecution witnesses and this fact further throws doubt on the prosecution story. Ld. Defence Counsel further contended that MLC of the victim Ex.PW9/A does not shows any marks of external injury on the body of the victim and this fact further throws doubt on the prosecution story. Ld. Defence Counsel contended that there was delay of one day in making the complaint which is fatal to the prosecution case. Ld. Defence Counsel further contended that all these aforesaid facts taken together throws doubt on the prosecution story and the benefit of doubt goes in favour of the accused and the accused should be accordingly acquitted.
16. Keeping in view the defence taken by the accused that he has been falsely implicated by the victim as the parents of the victim wanted to occupy his room because in the room of the victim there was no facility of toilet, bathroom and kitchen. The defence taken by the accused could not be proved by the accused by examining DW1 Sunil Singh as DW1 Sunil Singh has nowhere State Vs. Chhota @ Ishaq Page No. 12 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar deposed that there was any quarrel between the accused and the parents of the victim to occupy the room of the accused. Also, DW1 Sunil Singh in his cross examination stated that he cannot say where the minor victim was sleeping on that day. Also, accused has neither examined any witness nor placed on record any evidence to show that accused was having facility of toilet, bathroom and kitchen in the room occupied by him. Further, DW1 Sunil Singh has mentioned his address as resident of I14, Sanjay Park, Baljeet Nagar, Delhi but the place of incident was T2604, Gali No.22, Sanjay Park, Baljeet Nagar, Delhi which was not deposed by him. The name Sunil Singh to be the landlord of the said house where the accused and the victim both were tenants on the date of incident was not stated by the accused in his statement u/s 313 Cr.P.C. Also, the accused in his statement u/s 313 Cr.P.C. stated the name of the people sleeping on the terrace alongwith him as Niranjan, Chandan, Gudia, Mama of the Gudia and parents of mother of landlord. Also, name of landlord to be Sunil Singh is not even mentioned by complainant in her complaint. So, the defence taken by the accused is not proved by the accused. Thus, defence taken by the accused is of no use to the accused.
17. Keeping in view the contention of ld. defence counsel State Vs. Chhota @ Ishaq Page No. 13 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar that PW4 minor victim in her cross examination admitted that she was told by her parents to tell the police what she had told in her statement and to tell in Court what she had stated in her examination and she was told by lady police officer to tell the Judge as is recorded in her statement u/s 164 Cr.P.C and this shows that she being a child witness is a tutored witness and her testimony could not relied upon and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that PW4 minor victim in her reexamination stated that she was told by her parents to tell the truth as to what had happened with her to the police when they took her to the police station and thereafter when she was produced before the Ld. Judge and again today, she was not told to speak lie about the incident. This shows that PW4 minor/child victim is not a tutored witness. Also, considering the fact that one stray sentence appearing in the cross examination of the crucial witness does not effect the credibility of the said witness. Relying upon the judgment of Hon'ble Supreme Court of India in Case titled as Karamjit Singh V/s State (Delhi Administration) 2003 SCC (Cri) 1001 wherein it has been laid down that " the testimony of a prosecution witness could not be discarded merely on account of a stray sentence appearing in his cross examination". Also, the version of PW4 minor/child victim has State Vs. Chhota @ Ishaq Page No. 14 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar remained consistent through out in her complaint, her statement U/s 164 CrPC and even in her testimony and also her version has been fully corroborated by her parents namely PW10A Rinku Devi and PW3 Nagender Singh as well as also corroborated by PW5 Dr. Rajat Mitra, PW7 Dr. Nidhi Mitra and PW10 Retd. ACP Nirmal Kaur the three counsellors, who counselled the minor victim on 08.08.2003 immediately the next to next day of the incident. Also, relying upon the judgment of Hon'ble Supreme Court of India in Dattu Ramrao Sakhare and Others Vs. State of Maharashtra 1997(5)SCC341 wherein it has been held that "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or State Vs. Chhota @ Ishaq Page No. 15 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record".
18. Keeping in view the contention of ld. defence counsel that conviction could not be based on the testimony of sole eye witness and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that conviction could be based on the testimony of sole eye witness if it is reliable as in the present case, sole eye witness PW4 minor/child victim being the complainant cum victim is more reliable as she has no motive to leave the real culprit and to implicate others falsely. Relying upon the judgment of the Hon'ble Bombay High Court in State vs Subhash Pagi & Anr. 2004(4) Crime 343, wherein it has been held that, "Evidence of a victim or injured witness stands on a different footing as injured witness generally does not have any reason to omit the real culprit and implicate other falsely." Also, relying upon the judgment of Hon'ble Supreme Court of India in Ramesh Krishna Madhusudan Nayar V/s State of State Vs. Chhota @ Ishaq Page No. 16 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar Maharashtra AIR 2008 SC 927 wherein it has been held that "conviction could be based on the testimony of sole eye witness, if it is reliable".
19. Keeping in view the contention of ld. defence counsel that IO has not examined the other people alleged to be sleeping on the terrace of the said premises on the date of incident and this shows that the investigation has been conducted in a defective manner and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that merely because investigation has been conducted in a defective manner it does not effect the merits of the case and also it is an admitted fact that it was night time and people were sleeping and neither any other eye witness has been alleged nor the accused has proved that victim was shouting to awaken other people sleeping on the roof at the time of incident to enable them to witness the incident. Relying upon the Judgment of Hon'ble High Court of Delhi in Father Shepherd Vs. State of NCT of Delhi 2007 (2) CCC 472 wherein it has been laid down that "merely because the investigation has been conducted in a slipshod and defective manner and some lacunae have been left by the investigating officer, an accused cannot be acquitted."
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20. Keeping in view the contention of ld. defence counsel that PW10A Rinku Devi mother of the victim in her cross examination admitted that her husband was not present at the spot or in the room at the time of incident while PW3 Nagender Singh father of the victim has deposed that his daughter had told him after the incident while she had came running towards him and this shows there is inconsistency in the version of both the prosecution witnesses and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that this could not said to be inconsistency but it is only minor variations and the minor variations are bound to occur in the testimony of crucial witnesses and also, PW3 Nagender Singh father of the victim has nowhere stated that his daughter came to him immediately after the incident. Further, PW3 Nagender Singh in his cross examination admitted that he was not present on the spot at the time of incident and he was on Duty as a Security Guard in his office at Patel Nagar and when he returned back in the morning, his wife and daughter told him about the incident. Relying upon the judgment of the Hon'ble Supreme Court of India in Babasaheb Apparao Patil vs. State of Maharashtra AIR 2009 SC 1461 wherein it has been laid down that "some discrepancies in the ocular account of a witness, unless these are vital, cannot per se affect the credibility of the State Vs. Chhota @ Ishaq Page No. 18 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar evidence of the witness".
21. Keeping in view the contention of ld. defence counsel that as per the MLC of the victim Ex.PW9/A there are no marks of external injury on the body of the victim and this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that as per the MLC of the victim Ex.PW9/A there is alleged history of sexual assault as told by her father is mentioned by the doctor and in the present case there are allegations u/s 354 IPC against the accused and not u/s 323 IPC or u/s 376 IPC or u/s 377 IPC. Also, relying upon the judgment of Hon'ble Supreme Court of India in Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand) 2006 (8) SCC 560 wherein it has been laid down that "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. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady and the word "modesty" is not to be interpreted State Vs. Chhota @ Ishaq Page No. 19 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex".
22. Keeping in view the contention of ld. defence counsel that there has been delay of one day in making the complaint which is fatal to the prosecution case and thus, this fact throws doubt on the prosecution story. This contention of ld. defence counsel does not holds good due to the reason that delay in the cases of sexual assault upon women is not fatal if the delay is properly explained. Also, in the present case, prosecution has properly explained the delay of one day in making the complaint as the time of incident was midnight and father of the victim was not present in the house at the time of incident and the mother of the victim has to inform to her husband to make a complaint against the accused. Relying upon the Judgment of Hon'ble Supreme Court of India in State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393 and in Sri Narayan Saha & Anr. Vs. State of Tripura AIR 2005 SC 1452 wherein it has been laid down that "in sexual offences delay in lodging of FIR could be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the State Vs. Chhota @ Ishaq Page No. 20 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar incident which concerns the reputation of the prosecutrix and the honour of her family and it is only after giving it a thought that complaint of sexual offences is generally lodged and therefore, delay in lodging the FIR in such cases is not fatal".
23. Keeping in view the fact that the essential ingredients of offence U/s 354 IPC are that accused assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. To prove it prosecution has examined its most crucial witness namely PW4 minor/child victim i.e. complainant cum victim cum sole eye witness and she stated that she know the accused present today, his name is Chhota and he was living at the place where they were residing and while she was sleeping on the roof, accused did 'Gandi Baat' and he had opened her undergarment and put his finger in her private part. She further stated that she raised alarm, her mother came and questioned him and when her mother told him that she would see him in the morning, he ran away. She further stated that she had put her signature at point A on her statement Ex.PW4/A recorded by the police. Also, PW11 Inspector R.P. Minz has proved the statement given by PW minor/child victim u/s 164 Cr.P.C. before the Ld. Judge/Ld. M.M. is Ex.PW11/F. Further, the version of PW4 State Vs. Chhota @ Ishaq Page No. 21 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar minor /child victim is fully corroborated by PW10A Rinku Devi mother of the victim. Also, PW10A Rinku Devi mother of the victim has proved the subsequent conduct of PW minor/child victim when the PW minor/child victim has while crying, gone down stairs to her mother and disclosed the incident to her mother and her mother has immediately came on the terrace and beaten the accused with a footwear. So, this further corroborates the testimony of PW4 minor/child victim. Further, PW3 Nagender Singh father of the victim has also corroborated the version of the victim. Also, PW5 Dr.Rajat Mitra and PW7 Dr. Nidhi Mitra - Counsellors and PW10 Retd. ACP Nirmal Kaur from Women Help Line, all being independent witnesses have further corroborated that they all were called for counselling in August, 2003 i.e. 08.08.2003 of PW minor/child victim as she was crying and traumatized and PW minor/child victim told them the incident and they all calmed her. Also, MLC of victim Ex.PW9/A dated 07.08.2003 further corroborates the prosecution version. Further, no motive on the part of the victim or her parents to falsely implicate the accused is proved by the accused. Thus, prosecution is able to prove that accused assaults or uses criminal force upon the victim with an intention to outrage her modesty.
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24. To prove the identity of the accused, PW4 minor/child victim has stated that she know the accused present today, his name is accused Chhota. PW4 minor/child victim has also proved the complaint Ex.PW4/A and the complaint is by name against the accused Chhota. Further, PW10A Rinku Devi mother of the victim and PW3 Nagender Singh father of the victim have also correctly identified the accused present in the Court. Further, PW11 Inspector R.P. Minz Investigating Officer has also correctly identified the accused present in the Court and proved the arrest memo of the accused Ex.PW11/C. Further, accused has admitted in his statement u/s 313 Cr.P.C. that he was sleeping on the roof on the date of incident. Also, the identity of the accused is not disputed. Thus, prosecution is able to prove the identity of the accused.
25. Keeping in view the aforesaid reasoning as well as considering the aforesaid judgment of the Hon'ble Supreme Court of India in Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) (supra) and in view of the fact that the testimony of PW4 Minor/Child Victim is fully corroborated by the testimony of PW10A Rinku Devi and PW3 Nagender Singh. Further, PW4 Minor/Child Victim has vividly narrated the whole incident in State Vs. Chhota @ Ishaq Page No. 23 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar the Court and has stood the test of cross examination and correctly identified the accused who has misbehaved with her by opening her undergarment and putting his finger in her private part in the night when she was sleeping on the roof. I am of the considered view that testimony of all the PWs are clear, convincing and reliable and no material has come on record which falsify their evidence. Also all the essential ingredients of offence U/s 354 IPC has been fully established. I am of the considered view that prosecution was able to prove its case beyond reasonable doubt. Hence, accused Chhota @ Ishaq is accordingly convicted for the offence punishable U/s 354 IPC.
Let, accused be heard separately on the point of sentence on 03.03.2015.
ANNOUNCED IN THE OPEN COURT TODAY ON 28.02.2015.
(EKTA GAUBA) Metropolitan Magistrate, Mahila Court03/West/Delhi State Vs. Chhota @ Ishaq Page No. 24 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar IN THE COURT OF MS. EKTA GAUBA: METROPOLITAN MAGISTRATE (MAHILA COURT03),WEST, TIS HAZARI COURTS, DELHI State Vs. Chhota @ Ishaq FIR No : 337/03 P.S. Patel Nagar U/s 354 IPC ORDER ON SENTENCE 03.03.2015 Present: Ld. APP for the State.
Convict Chhota @ Ishaq in person with Ld. counsel Sh. A. R. Sharma and Sh. Indu Bhushan, Advocates.
This case is fixed today for orders on the point of sentence.
Arguments on the point of sentence heard.
Ld. counsel for the Convict Chhota @ Ishaq contended that Convict Chhota @ Ishaq is the sole bread earner of his family & is aged about 32 years old and is working as a tailor and he has his wife, two minor children & old aged parents to support & look after and therefore, convict Chhota @ Ishaq may kinldy be released on probation by taking a lenient view. Ld. counsel for the Convict Chhota @ Ishaq further contended that convict Chhota @ Ishaq is State Vs. Chhota @ Ishaq Page No. 25 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar not a previous convict and therefore, the convict Chhota @ Ishaq may kindly be released on probation.
On the other hand, Ld. APP for the State strongly opposed the request for grant of probation on the ground that in this case, the offence has been committed by the convict Chhota @ Ishaq against the minor victim and considering the minor age of the victim, the convict Chhota @ Ishaq should not be released on probation. Ld. APP for the State further contended that maximum punishment should be given to the convict Chhota @ Ishaq so that there should be a deterrent effect in the society. Ld. APP for the State also requested for grant of compensation to the minor victim.
I have carefully considered the submissions made by Ld. APP for the State as well as Ld. counsel for Convict Chhota @ Ishaq.
Keeping in view the latest judgment of the Hon'ble Supreme Court of India in Ajahar Ali v/s State of West Bengal 2013 (3) SCC (Cri) 794 wherein it has been held that "benefit of Probation of Offenders Act, 1958 cannot be extended to the accused considering the heinous crime i.e. crime against women that accused had committed and social conditions prevailing in the society and so the benefit of probation is not available to persons convicted of offences U/s 354, 354A, 354B, 354C and 354D IPC". State Vs. Chhota @ Ishaq Page No. 26 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar In view of the fact that Convict Chhota @ Ishaq misbehaved indecently with the victim a girl of 8 years old when she was sleeping on the roof in the night and convict Chhota @ Ishaq opened the undergarment of the said minor/child victim and put his finger in her private portion and in view of the fact that the offence against the minor girls are on the increase in the city and it is a well known fact that it is serious public order problem if the minor girls being tenants are not safe even on the roofs of their houses in the night from the other tenants and in view of the facts and circumstances, Convict Chhota @ Ishaq does not deserves the benefit to be released on probation.
I am of the considered view that interest of justice will be served if for the offence punishable U/s 354 IPC, convict Chhota @ Ishaq is sentenced to simple imprisonment for a period of eighteen months and to pay compensation of Rs.10,000/ to the victim and in default of payment of compensation, the convict Chhota @ Ishaq shall further undergo simple imprisonment for a period of three months.
Convict Chhota @ Ishaq be given benefit of Section 428 CrPC.
Ordered accordingly.
State Vs. Chhota @ Ishaq Page No. 27 FIR No.337/03 State Vs. Chhota @ Ishaq PS: Patel Nagar Copy of judgment has been supplied to the Convict Chhota @ Ishaq free of cost on the date of judgment itself i.e. 28.02.2015.
Copy of order on sentence be supplied to the Convict Chhota @ Ishaq today itself free of cost.
Announced in the open court today i.e. on 03.03.2015 (Ekta Gauba) MM (Mahila Court03) West,THC,Delhi/03.03.2015 State Vs. Chhota @ Ishaq Page No. 28