Delhi District Court
Yogender @ Pappu vs The State on 26 May, 2017
IN THE COURT OF MS. ASHA MENON: DISTRICT &
SESSIONS JUDGE (SOUTH DISTRICT) SAKET: NEW
DELHI
(1) CISCA82392016
CNRDLST 010028662015
FIR No. 399/12
PS: Saket
u/s. 354/509 IPC
Yogender @ Pappu
Son of Shri Virender,
R/o F.115, Lado Sarai,
New Delhi. .....Appellant.
Versus
The State
(Govt. of NCT, Delhi) ......Respondent.
Date of Institution: 02.03.2015
Judgment reserved on: 03.05.2017
Judgment pronounced on: 26.05.2017
(2) CISCA81222016
CNRDLST 010010072015
FIR No. 399/12
PS: Saket
u/s. 354/509 IPC
Priya Sejwal
D/o of Shri Mahabir Sejwal,
R/o F.550, Lado Sarai,
Khokhre Wali Gali No.1,
New Delhi. .....Appellant.
Versus
The State
(Govt. of NCT, Delhi) ......Respondent.
CISCA82392016 & CISCA81222016. Page 1 of 15
Date of Institution: 13.03.2015
Judgment reserved on: 03.05.2017
Judgment pronounced on: 26.05.2017
JUDGMENT
This order will dispose of two appeals that have been filed against the two parts of the decision of the Ld. Trial Court, one preferred by the convict/appellant Yogender @ Pappu and one preferred by the complainant/appellant Ms. Priya Sejwal. Since the issues to be considered are common, the two appeals are disposed off by this common order. The convict / appellant Yogender @ Pappu in appeal bearing no. CISCA82392016 has challenged his conviction u/s. 354/509 IPC vide judgment dated 22.01.2015 and also the sentence imposed on him vide order on sentence dated 31.01.2015 releasing him on probation on terms alongwith a compensation of Rs.10,000/. The complainant / appellant Ms. Priya Sejwal on the other hand in appeal bearing no. CISCA81222016 has questioned the sentence submitting that the convict/appellant Yogender @ Pappu should not have been released on probation and on payment of a meager compensation of Rs.10,000/.
The facts as are relevant for the disposal of these appeals are as follows:
On 25.12.2012 at about 07.15 pm at F115, Lado Sarai within the jurisdiction of PS Saket an incident occurred between two neighbours. According to the complainant, Ms. CISCA82392016 & CISCA81222016. Page 2 of 15 Priya Sejwal, she alongwith her brother had gone to the Kabadi shop located in the premises of the convict/appellant in appeal no. CISCA82392016 for purchase of a used magazine. The shopkeeper, who was the tenant of the convict/appellant Yogender @ Pappu was not present and there was only a small child alongwith convict/appellant Yogender @ Pappu was present there. Some arguments took place between the child and the complainant and in the course of that altercation the convict/appellant Yogender @ Pappu abused the complainant by using the word 'Kutiya' and asked her to get away from there and when the complainant questioned his conduct, the convict/appellant Yogender @ Pappu hit her on her breast and pushed her and further abused her and called her 'Randi' and also slapped her on her head and pushed the younger brother of the complainant.
After the chargesheet was submitted, the Ld. Trial Court at the first instance on 23.09.2013 served notice u/s. 251 Cr.P.C. for the commission of the offence u/s. 323 & 509 IPC. Subsequently, the additional charge u/s. 354 IPC was also framed on 23.09.2014 after hearing the Ld. Additional Public Prosecutor and upon no objection to the addition of the charge u/s. 354 IPC submitted by the counsel for the accused. Thus, the trial against the accused proceeded for the offence u/s. 323/509/354 IPC. As the accused pleaded not guilty to the charges against him, the prosecution examined its witnesses Ms. Priya Sejwal was CISCA82392016 & CISCA81222016. Page 3 of 15 examined as PW1, HC Rambir was examined as PW2, Ct. Sandeep was examined as PW3 and SI Manoj Kumar was examined as PW4, after which the statement of the accused Yogender @ Pappu was recorded u/s. 281 Cr.P.C. He also examined his wife Ms. Usha Sejwal as DW1 and Master Amza as DW2.
After considering the evidence brought on record, the Ld. Trial Court vide the impugned judgment concluded that the evidence clearly established that the accused had committed the offence u/s. 323/354/509 IPC. Accordingly, vide the judgment dated 22.01.2015 it convicted the accused Yogender @ Pappu for the said offences.
After hearing the prosecution and the defence on quantum of sentence, vide order dated 31.01.2015, the Ld. Trial Court concluded that adopting the reformist approach a chance was required to be given to the convict to mend his conduct. Accordingly, the ld. Trial Court directed the release of the convict by furnishing a probation bond in the sum of Rs.20,000/ for one year. The convict was also directed to pay a fine of to the tune of Rs.10,000/, which was to be paid as compensation to the complainant.
Aggrieved by this conviction, the convict/appellant Yogender @ Pappu has submitted in the grounds of appeal that the prosecution had failed to prove the case beyond shadow of doubt and the appellant could not be convicted and sentenced, as CISCA82392016 & CISCA81222016. Page 4 of 15 he was an innocent person having made a scapegoat in the case. It is further submitted that the Ld. Court had overlooked material contradictions and infirmities in the statement of the witnesses. It is submitted that no independent witness other than the complainant was examined by the prosecution, which the Ld. Court accepted while rejecting the testimony of Smt. Usha Sejwal, DW1, who was the wife of the convict/appellant. It is also submitted that the Ld. M.M. failed to appreciate the testimony of DW2 that it was the girl, who had commenced the quarrel by using abusive language and that appellant had only interceded to pacify her politely. It is submitted that the complainant, while being examined as PW1 claimed that her sister Kirti was present with her, whereas no such statement had been made to the police. It is also submitted that the brother of the complainant, who had accompanied her had also not been examined. Thus, the entire case was doubtful.
It is further submitted in the grounds of appeal that the appellant hailed from a reputed family and the families of the parties used to visit each other and there was previous enmity between the families, as the brother of the appellant had filed a PIL against the illegal and unauthorized construction carried out by the father of the complainant and the same had been demolished and that therefore, the Ld. Trial Court ought to have considered that as the alleged occurrence had taken place in a densely populated area and since no one from the public had been CISCA82392016 & CISCA81222016. Page 5 of 15 examined, the entire case was liable to have been rejected as completely doubtful. Thus, it has been prayed that both the conviction as well as order on sentence be set aside.
In the appeal preferred by the complainant Ms. Priya Sejwal, it is submitted that the Ld. Trial Court had overlooked the object of sentencing policy, being "punishment must fit the crime". It is submitted that the Ld. Trial Court had failed to appreciate that the wife of the respondent no.2/convict Yogender @ Pappu namely, Usha Sejwal was a school teacher and the respondent no.2/convict Yogender @ Pappu was also earning handsome rental income. It is further submitted that when the respondent no.2/convict Yogender @ Pappu himself claimed that there was enmity, clearly the offence had been committed by him on account of such inimical feelings and he had outraged the modesty of the complainant, who was old enough to be his daughter. It is submitted that therefore, the crime was a very heinous crime and should have been punished severely. It is also pointed out that the respondent no.2/convict Yogender @ Pappu has taken contradictory stands in his defence and his witness DW2 did not support his claim that the complainant had started beating the child and that the convict/respondent no.2 had interceded to save the child. It is also submitted that DW1 was an interested witness which reflected that the convict would go to any extent to set up his case. It is also submitted that the conduct of the convict had left indelible impact on the victim and family CISCA82392016 & CISCA81222016. Page 6 of 15 and in these circumstances, the Ld. Trial Court ought not to have released the respondent no.2/convict Yogender @ Pappu on probation. Thus, the complainant/appellant has prayed that the sentence be enhanced as also amount of compensation granted to the complainant/appellant.
The Ld. Counsel Sh. Anand V. Khatri for convict/appellant Yogender @ Pappu submitted that the brother of convict/appellant Yogender @ Pappu had lodged complaint against the father of the prosecutrix by filing writ petition had got his property demolished and so upon blank paper the signatures were obtained and Ex.PW1/A was created alleging that the offence had been committed. Ld. Counsel for the convict/appellant Yogender @ Pappu submitted that the charge u/s. 354 IPC was framed only on the basis of the translation of the word 'Chhati' as in the first order the Ld. Trial Court observed that no offence of Section 354 IPC had been made out because the exact portion of the chest was not clearly mentioned whereas the successor Court was of the view that 'Chhati' had to be interpreted not a chest but as breast. Therefore, it is submitted that the conviction of appellant Yogender @ Pappu u/s. 354 IPC was only on account of this translation. Thus, the Ld. Counsel submitted that the convict/appellant Yogender @ Pappu ought to be given the benefit of this contradiction.
It is further argued that the Investigating Officer claimed that he had written the complaint in front of the house of CISCA82392016 & CISCA81222016. Page 7 of 15 the complainant, whereas the complainant did not say so. It is further submitted that the Investigating Officer did not recall the name of the person, he had interrogated regarding the matter before arresting the accused which reflected that he had made no local inquiries. It is argued that no one was willing to confirm the occurrence, was clear that the case was a concocted one and so the convict/appellant Yogender @ Pappu was entitled to be acquitted.
On behalf of the complainant/appellant Ms. Priya Sejwal Shri Arvind K. Gupta and Sh. Anshul Garg submitted that when the charge u/s. 354 IPC was framed on 23.09.2014 no appeal was preferred against that order. Rather the counsel had agreed to the framing of the charge and, therefore, now arguments on that basis could not be raised. It is submitted that the child examined as DW2 did not support the defence version that he was being beaten by the complainant and that the convict had interceded to save him. It is also submitted that the DW1, the wife of the convict/appellant Yogender @ Pappu had stated in the crossexamination that when the incident occurred, she was in the pathology lab run by another tenant from her home and thus, she was at home when the incident occurred, whereas her husband was present at the Kabadi shop. She admitted that she did no see anything what had happened at the Kabadi shop. Therefore, the ld. Counsel submitted that the conviction was justified.
It is further submitted that in the light of the decision CISCA82392016 & CISCA81222016. Page 8 of 15 in 'Ajahar Ali v. State of West Bengal's case no probation could have been granted to the accused in such a heinous offence.
In response, Sh. Anand V. Khatri for appellant Yogender @ Pappu submitted that the shop and house are not very distant from each other and so that cannot be the fact to discard the testimony of DW1. It is submitted that the contradictions were material and that the judgment in 'Ajahar Ali v. State of West Bengal's case was not applicable to the facts of the present case as facts are vastly different.
The Ld. Additional Public Prosecutor for the State Shri Salim Khan supported the conviction and sentence and submitted that there was no error in the same, calling for any interference by this Court.
There can be no two views that the burden is on the prosecution to establish a case beyond reasonable doubt. The chargesheet filed against the convict/appellant Yogender @ Pappu was u/s. 323/354 & 509 IPC. A mistake in framing charge is only an irregularity and the record reveals that though the Ld. Court had initially taken the view that the offence u/s. 354 IPC was not made out, subsequently on the request made by the Ld. APP and conceded to by the Ld. Defence Counsel, the charge u/s. 354 IPC was framed. That was not challenged and, therefore, the question of framing of charge need not detain us at this juncture when the appeal is directed against conviction. Whatever be the charge that is framed by the Court, the prosecution is required to CISCA82392016 & CISCA81222016. Page 9 of 15 establish that the offence so charged was made out. In fact on evidence that comes on record a fresh charge can also be framed, if it had already not been framed. This issue raised by the Ld. Counsel for the convict/appellant Yogender @ Pappu regarding adding of the Section 354 IPC has no merit.
The question then is whether the prosecution has successfully proved that the accused Yogender @ Pappu had committed the offence u/s. 323/354/509 IPC. PW1 is the complainant. No doubt neither her brother nor sister, nor her father have been examined in this case but it is now well settled that it is not the number of the witnesses but the quality of the testimony that is important. The statement of the prosecutrix or in any case, the statement of a witness whose testimony appears credible, cogent and convincing, can suffice to bring home the guilt of an accused person. Seen in this light, the testimony of PW1 supports the prosecution case. With regard to the offence u/s. 323 IPC she has deposed that the accused Yogender @ Pappu had slapped her on her head and had hit her breast and had pushed her. The witness has deposed to having returned to her home while weeping reflecting that she had been hurt by the slap rendered on head and the hit rendered on her breast. Thus, the offence u/s. 323 IPC has been established on her testimony.
With regard to the offence u/s. 354 ILPC, though the ld. Counsel for the convict/appellant has sought to make much of the translation of the word 'Chhati' whether it is chest or breast, it CISCA82392016 & CISCA81222016. Page 10 of 15 cannot be overlooked in common parlance, the word 'Chhati' would refer to the anatomical part of the female body i.e. breast. For the offence u/s. 354 IPC, proof of use of criminal force on any woman with the knowledge that it is likely to thereby outrage her modesty, is sufficient to hold that the offence has been committed. In the present case, PW1 has deposed that the accused pushed her while hitting her breast and when she opposed the same the accused abused her by calling her 'Randi'. In other words, the accused was clearly conscious of what he was doing when he hit the complainant at the chest/breast and the complainant had protested against the act clearly disclosing that she was outraged by what he had done. Yet what followed was an abuse from Yogender @ Pappu. In these circumstances, it is clear that the offence u/s. 354 IPC has been established on the testimony of PW1.
Coming to the offence u/s. 509 IPC, the offence is made out when words are used to insult a woman. Calling a young girl 'Kutia' and 'Randi' is certainly not use of words that would enhance the prestige of PW1. Clearly, these words were intended to insult the modesty of PW1 when the convict Yogender @ Pappu uttered these words. Therefore, the offence u/s. 509 IPC has also been established.
The defence can always create a doubt and seek to reap the benefit of such doubt, the standard of proof being "beyond shadow of doubt". However, in the present case no such CISCA82392016 & CISCA81222016. Page 11 of 15 doubt has been created. The defence alleged that there was enmity between the parties and also alleged that it was the complainant who had quarreled with the convict/appellant Yogender @ Pappu at the kabari shop and the convict had merely protested. However, as rightly pointed out by the Ld. Counsel for the complainant, this defence has not been successfully established to cast any kind of doubt. PW1 denied the suggestion that the child was manhandled. She denied that the quarrel had taken place between the two children namely, the child at the shop and her younger brother or that the accused Yogender @ Pappu had been falsely implicated.
It is significant to note that both PW1, the complainant, as well as DW1, the wife of the convict/appellant Yogender @ Pappu have stated that the relationship between the families was cordial. This would fly in the face of the claim by the defence that the case has been set up on account of the demolition on the basis of the complaint of the brother of the convict/appellant Yogender @ Pappu as it is clear that the relationship between the families continued to be cordial despite such demolition. Therefore, it cannot be held that the case was a mischievous or motivated one to take revenge on the convict.
In these circumstances, the Ld. Trial Court rightly convicted the appellant Yogender @ Pappu for the offence u/s. 323/354 & 509 IPC and the conviction is upheld.
Turning to the sentence, reliance has been placed on CISCA82392016 & CISCA81222016. Page 12 of 15 the judgment of 'Ajahar Ali v. State of West Bengal (2013) 10 SCC 31 by the ld. Counsel for the complainant to contend that probation ought not to have been granted to the convict/appellant Yogender @ Pappu. However, while sentencing both the aggravating circumstances and the extraneous circumstances or mitigating circumstances have to be weighed before a sentence can be to be imposed. The facts in the 'Ajahar Ali v. State of West Bengal's case are vastly different where there was a complete physical assault on a 16 years old girl where the accused had caught hold of her and planted a kiss which resulted in cutting her lower lip which started bleeding. In the instant case, the parties belong to families which has cordial relationship. Even as per the complaint, when the complainant was arguing with the young boy at the kabari shop, the accused Yogender @ Pappu is alleged to have started abusing her and pushing her away and slapping her on her head. Thus, the circumstances are vastly different.
After considering all circumstances including that the parties being neighbours, the decision of the Ld. Trial Court to release the accused Yogender @ Pappu on probation was an appropriate order. Failure to keep good behaviour for one year would naturally have entailed the consequences of the convict having to appear before the Court to receive the sentence and thus, would have the salutary effect of the convict consciously maintaining good behaviour for one year, at least leading to a CISCA82392016 & CISCA81222016. Page 13 of 15 habit of being of good behaviour. Section 5 of the Probation of Offenders Act, 1958 permits the Court while granting probation to also impose compensation. The compensation has also to be commensurate with the offence and not merely with the earning capacity.
In the facts and circumstances of the case the grant of Rs.10000/ as compensation was just and proper. There is no ground to enhance the same. In these circumstances, the sentence imposed on the convict/appellant Yogender @ Pappu calls for no interference whatsoever releasing the convict/appellant Yogender @ Pappu on probation of good conduct. The convict/appellant Yogender @ Pappu be released on probation of good conduct on his furnishing a personal bond in the sum of Rs.20,000/, undertaking to appear and receive sentence when called upon to do so, during such period i.e. one year and in the meantime, to keep the peace and be of good behaviour, with further directions to pay a sum of Rs.10,000/ as compensation to the complainant. Since the compensation has already been deposited by the convict/appellant Yogender @ Pappu before the Ld. Trial Court vide order dated 09.03.2015, the Ld. Trial Court may release the same to the complainant after the expiry of the period of appeal, if any.
The appeal nos. CISCA82392016 & CISCS 81222016 are therefore, dismissed.
The trial court record be returned alongwith copy of CISCA82392016 & CISCA81222016. Page 14 of 15 the judgment.
The original judgment be placed in Criminal Appeal bearing No. CISCA82392016 and copy be placed in Criminal Appeal bearing No. CISCA81222016.
The files be consigned to the Record Room.
Announced in open Court (ASHA MENON)
today i.e.26.05.2017 District & Sessions Judge (South)
Saket, New Delhi
CISCA82392016 & CISCA81222016. Page 15 of 15