Delhi District Court
Cr. Case/9625/2018 on 24 September, 2018
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-01,
MAHILA COURT, CENTRAL: DELHI
1.FIR No. 295/2018 PS Karol Bagh
2.CC No. 9625/2018
3.Title State v. Gopal Patel
4. Name of accused Gopal Patel, S/o Sh. Khari Patel, R/o
Village Madhaia do, PS Madhaia do,
District Damoh, Madhya Pradesh.
5.Date of filing of charge sheet 16.07.2018
6.Date of Reserving judgment 22.09.2018
7.Date of pronouncement 24.09.2018
8.Date of commission of alleged 21.06.2018
offences
9.Offences complained of Under Sections 354, 354 A and 509
IPC
10.Offences charged with Under Sections 354 and 509 IPC
11.Plea of the accused Pleaded not guilty
12.Final order Accused Gopal Patel is convicted for
the offences punishable under
Sections 354 and 509 IPC.
FIR No. 295/2018 State v. Gopal Patel Page 1of14
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The complainant/victim/prosecutrix of this case would be referred in the judgment as 'X' and her brother would be referred as 'Y' in order to protect the identity of the victim.
Prosecution case in brief:
2. DD no. 39A dated 21.06.2018, was received in the police station. On receipt of the said DD, IO alongwith HC Geeta reached at the spot. He came to know at the spot that the complainant had gone alongwith her brother to the police station and ASI Shiv Kumar had also taken accused Gopal Patel to the police station.
He came back to the police station where 'X' met him alongwith her brother. She gave a written complaint to the IO.
3. It was complained by 'X' that on 21.06.2018 at 6.30pm at Karol Bagh Metro Station accused pulled her cheek and held her right hand strongly. He made lewd gestures with his lips of kissing, in front of many people towards her. Thus, she complained that she was sexually harassed and molested at the metro station while bargaining for rickshaw fare to a nearby destination.
Investigation conducted:
4. On the complaint of 'X', FIR under Section 354 IPC was FIR No. 295/2018 State v. Gopal Patel Page 2of14 registered and the matter was investigated. Site plan was prepared at the instance of 'X'. Statement of witnesses U/s 161 Cr.P.C. were recorded. Accused after interrogation, was arrested pursuant to his personal search. He was arrested as he had no fixed place of abode and there were chances that he would commit similar types of offences in future. Accused, after medical examination, was produced before the Court. Statement of prosecutrix 'X' U/s 164 Cr.P.C. was got recorded. Accused was remanded to judicial custody by the Court.
5. 'X' in her statement U/s 164 Cr.P.C. deposed on the same lines as that of her complaint. Section 354 A and Section 506 IPC were added in the present case during investigation.
6. After completion of investigation, charge-sheet was filed before the Court on 16.07.2018.
Trial proceedings:
7. Cognizance was taken of the offence. Provisions of Section 207 Cr.P.C were complied with. Vide order dated 17.07.2018 charge for the offences punishable under sections 354 and Section 509 IPC was framed against the accused. Accused pleaded not guilty and claimed trial.
8. Admission /denial of documents was conducted U/s 294 Cr.P.C. Accused admitted the recording of statement of 'X' U/s 164 Cr.P.C. and the proceedings conducted by the Ld. MM with respect FIR No. 295/2018 State v. Gopal Patel Page 3of14 to the same, however, denied the contents of the said statement. He also admitted the registration of the present FIR and recording of DD No. 48 A and 39 A both dated 21.06.2018 by the Duty Officer. In view of the same the said documents were exhibited as Ex. P1 collectively, Ex. P2, Ex. P3 and Ex. P4 respectively and evidence of Ld. MM and duty officer was dispensed with.
9. Prosecution in order to prove its case against the accused in total had examined as many as five witnesses. PW-1 'Y' is the brother of complainant. PW-2 'X' is the complainant. PW-3 ASI Shiv Kumar and PW-4 HC Geeta are the witnesses of investigation. PW-5 SI Amit Tyagi is the investigation officer of the present case. Prosecution evidence was closed in the present case vide order of the Court dated 24.08.2018 as it was submitted by the Ld. APP for the State that all the prosecution witnesses have been examined.
10. Statement of accused was recorded under Section 313 read with Section 281 Cr.PC before the Court on 27.08.2018 wherein all the incriminating material on record was put to the accused. It was submitted by him that he is innocent and had been falsely implicated in the present case by 'X'. He had not misbehaved with 'X' and had only asked her to give rickshaw fare on which she hit him. Further the police had not made any public witness. It was submitted by the accused that he does not wish to lead any evidence in his defence. In view of the submissions, defence evidence was closed and the matter was fixed for final arguments.
FIR No. 295/2018 State v. Gopal Patel Page 4of14
11. I have heard the final arguments as advanced by the Ld. APP for the State and the Ld. Counsel for the accused.
Prosecution Evidence:
12. PW-1 'Y' had deposed that he was told by his sister regarding the incident. After receiving the call of his sister, in which his sister told him regarding the molestation done by accused, he went to Karol Bagh Metro Station where he met his sister and the accused. The accused was apprehended by the police. Thereafter, he alongwith his sister, accused and the police official went to the police station where his sister gave her complaint and FIR was lodged. Accused was arrested in his presence. He correctly identified the accused before the Court.
13. 'Y' deposed in his cross-examination that he came to know about the said incident from his sister in between 7.00pm-8.00pm on 21.06.2018 and he reached Karol Bagh Metro Station in between 8.30pm to 9.00pm. His sister was standing with the police when he reached at the spot. He admitted that accused was completely drunk and was unable to sit properly in the police van. He deposed that he does not remember if site plan was prepared in his presence. He admitted that his sister had hit the accused when the accused molested his sister. He further admitted that his sister had told him about the same. He also admitted that the statement of his sister was recorded in the police station.
FIR No. 295/2018 State v. Gopal Patel Page 5of14
14. PW-2 'X' had deposed that on 21.06.2018 at around 6.30pm when she came out from Karol Bagh Metro Station and was bargaining for rickshaw fare, accused came near her and pulled her cheek and strongly held her hand. She was wearing mask at that time. She tried to stop the accused. The accused however, was making gestures like he wanted to kiss her. Thereafter, she called at 100 number and the police came at the spot. She gave her complaint Ex. PW-2/A to the police. Site plan Ex. PW-2/B was prepared by the IO at her instance. Accused was arrested in her presence and arrest memo Ex. PW-2/C was prepared. Her statement U/s 164 Cr.P.C. Ex. PW-2/D was recorded by the Ld. MM on 25.06.2018. The witness correctly identified the accused before the Court.
15. 'X' in her cross-examination deposed that she came out from Karol Bagh Metro Station at around 6.20pm. She, at the time of the incident, was surrounded by many people and they even asked her to hit the accused. She did not remember which side of her cheek was pulled by the accused. She was not bargaining from the accused and the accused himself came towards her. She admitted that the incident was noted by the police at the spot itself. She further deposed that she first called the police at about 6.30pm and thereafter, called her brother at about 6.35pm. The police arrived at around 6.50pm. Two male police persons arrived at the spot and they stated that she has to wait for appropriate police personal of police station Karol Bagh. She admitted that some public persons FIR No. 295/2018 State v. Gopal Patel Page 6of14 told her that accused is mental and do not fight with him. She admitted that she was alone on the date of incident and was standing outside the Karol Bagh Metro Station, but cannot tell on which place was she standing. She further deposed that she was standing outside the exit, however, does not remember the gate number. She was taken by some police officer to the police station where she gave her statement to IO/SI Amit Tyagi.
16. PW-3 ASI Shiv Kumar is the witness of investigation. He had deposed that on 21.06.2018 he was on emergency duty. He was going towards Karol Bagh Metro Station. He saw that a crowd had gathered below the Metro station. He met the complainant and her brother. Complainant told him that a rickshaw puller had molested her. Thereafter, he alongwith complainant and the accused went to the police station. IO/SI Amit Tyagi and WHC Geeta also met them at the police station. Thereafter, complainant gave her complaint to the IO and the FIR was registered. IO investigated the matter and thereafter arrested the accused pursuant to his personal search vide memos Ex. PW-2/C and Ex. PW-3/A. He correctly identified the accused before the Court.
17. PW-4 HC Geeta is another witness of investigation. She had deposed on the same lines as that of the final report. She correctly identified the accused before the Court.
18. PW-5 SI Amit Tyagi is the investigation officer of the present case. He had deposed on the same lines as that of the final report. He deposed that he prepared rukka Ex. P3 on the complaint of the FIR No. 295/2018 State v. Gopal Patel Page 7of14 complainant and got the FIR registered. He identified his signatures over the arrest memo and personal search memo of the accused. He also deposed that he prepared site plan Ex. PW-2/B at the instance of the complainant. He also got recorded the statement of complainant U/s 164 Cr.P.C. He correctly identified the accused before the Court.
19. PW-5 deposed in his cross-examination that he had inquired from the people regarding the incident, however, nobody gave him any answer. No eye witness of the spot was made a witness.
Appreciation of Law and evidence:
20. It is a well settled principle of criminal law that, it is for the prosecution to establish the guilt of accused beyond shadow of all reasonable doubts before the Court and accused has a pious right of not to be convicted of an offence which is not established beyond reasonable doubts by the prosecution. The burden of proof in a criminal trial always rest upon the prosecution and the same never shifts on the accused.
21. In order to establish the commission of offence punishable U/s 354 IPC , it has to be established by the prosecution before the Court that accused used criminal force against 'X' or assaulted 'X' with the intention to outrage her modesty or with the knowledge that by that act he would be likely to outrage her modesty.
FIR No. 295/2018 State v. Gopal Patel Page 8of14
22. In order to establish the commission of offence punishable under Section 509 IPC, it has to be established by the prosecution that the accused with the intention to insult the modesty of the complainant made gestures intending that the said gestures be seen by the complainant.
23. It is argued by the Ld. APP for the State that accused had committed the offences against the person of 'X' and the commission of the said offences is established before the Court by the testimony of the prosecution witnesses who have deposed before the Court with respect to the incident, with respect to the investigation conducted and who had further correctly identified the accused before the Court.
24. It is argued by the Ld. Counsel for the accused that the spot where the incident was alleged, is a very frequented public place and the State has not examined any public witness in support of its case despite the availability of public witnesses. It is further argued that the complainant had deposed in her examination in chief for the first time that she was wearing mask at the relevant point of time. If she was wearing mask then how could the accused pull her cheek. It is further argued that altercation had taken place with respect to the payment of rickshaw fare between the complainant and accused and when the accused asked the complainant to give rickshaw fare she even hit the accused. Thus, it is argued by the Ld. Counsel that the accused is innocent and had been falsely implicated.
FIR No. 295/2018 State v. Gopal Patel Page 9of14
25. 'X' is the sole victim and the complainant of the present case. Her brother 'Y' had come to the spot later on after 'X' had called him by way of telephone and therefore, is not an eye witness to the present case and his testimony is hearsay in nature with respect to the alleged offences. The remaining witnesses are witnesses of investigation.
26. The accused had admitted his presence at the spot when all the incriminating material on record was put to him at the stage of Section 313 Cr.P.C. The defence taken by him was that he was falsely implicated by the complainant as he had asked the complainant to give rickshaw fare.
27. 'X' had remained consistent in her statement and testimonies recorded. She had identified the accused before the Court as the person who on 21.06.2018 at about 6.30pm outside Karol Bagh Metro Station came near her, pulled her cheek, strongly held her hand and when she tried to stop him made gestures indicating that he wanted to kiss her. 'X' in her statement U/s 164 Cr.P.C. had also deposed entirely on the same lines. She deposed that a rickshaw puller pulled her cheek, held her right hand and made lewd gestures with his lips of kissing. Her complaint is also on the same lines. Thus, her version at every stage of trial had remained consistent. She had correctly identified the accused before the Court. Nothing could be elicited from her cross-examination which can assail her credibility before the Court.
FIR No. 295/2018 State v. Gopal Patel Page 10of14
28. It has further come in the deposition of 'X' and the witnesses of investigation that accused was taken by PW-3 ASI Shiv Kumar to the police station and the complainant went to the police station alongwith her brother. At the time when IO reached at the spot alongwith WHC Geeta, the complainant or the accused were not at the spot and already ASI Shiv Kumar had taken the accused to the police station.
29. Karol Bagh Metro Station would evidently be frequented by various public persons at the time when the incident is alleged, that is, at 6.30pm. However, people come and go at metro stations. It is a well evident phenomena that in today's societal milieu hardly one comes across a public spirited person who would volunteer to come and aid the State in investigation. IO had deposed that when he reached the spot though nearby rickshaw pullers told him that a girl was misbehaved with by a rickshaw puller and she had gone to police station, however, on inquiry about the incident nobody gave him any answer. Thus, sufficient explanation has come on record with respect to the absence of public witnesses in support of the case of prosecution.
30. In the present case a police officer on emergency duty who was passing by the Metro Station had taken the accused to the police station alongwith the complainant and her brother. It is admitted by the State that the entire investigation had taken place in the police station as the IO for the first time met the complainant in the police station. Though it has come in the cross-examination FIR No. 295/2018 State v. Gopal Patel Page 11of14 of 'X' that she had narrated the incident to the police at the spot, however, from the cross-examination it can be inferred that those police officers who recorded the version of 'X' at spot were not the police officers of the concerned police station. It was deposed by 'X' that she gave her statement to the IO of the present case in the police station. Though 'X' is not able to tell the exact place in the site plan where she was standing, however, the site plan even if not proved is not fatal to the case of the prosecution as the accused had admitted his presence at the spot.
31. Further more a suggestion is given to 'Y' in his cross- examination that accused was drunk at the relevant point of time. It is not the case of the defence that accused was administered alcohol forcibly by any person and therefore, he is not responsible for the consequent action. Voluntary intoxication is no defence.
32. Further more, the argument that as the complainant was wearing mask it was not possible for the accused to pull her cheek holds no ground. Wearing mask cannot preclude or stop the assailant to pull the cheek of the victim. The non-mention of mask by the complainant in her complaint and statement Us/ 164 Cr.P.C. is also not a material omission which could strike at the root of the case. It is normal for people to wear mask. Women in purdah and even in burkha are not safe in the current scenario where crime against woman is on a rampant increase.
33. It is a time tested principle of law of evidence that evidence has to be weighed and not counted. Section 134 of the Indian FIR No. 295/2018 State v. Gopal Patel Page 12of14 Evidence Act does not prescribe for any particular number of witness who are required for the proof of any fact. Reliance can be placed upon the solitary testimony of the complainant/prosecutrix if the same inspires confidence and is cogent, credible and trustworthy and is not saddled with inconsistencies and variations.
34. In the present case the testimony of 'X' stands on its own legs and is further corroborated by the testimonies of witnesses of investigation.
35. Thus, as 'X' had remained consistent in her statements made at the stage of investigation and trial and had categorically identified accused before the Court as the person who pulled her cheek, held her hand and made gestures to the tune that he wanted to kiss her, it is held that the prosecution is able to establish that accused had used criminal force against 'X' with the intention to outrage her modesty and had made gestures towards her with the intention that said gestures be seen by her with a view to insult her modesty.
36. In view of the above said discussions and findings it is held that the prosecution has been able to establish before the Court beyond shadow of all reasonable doubts that accused committed the offence punishable U/s 354 IPC and Section 509 IPC.
Conclusion/Findings:
37. Accordingly accused Gopal Patel is held guilty for the FIR No. 295/2018 State v. Gopal Patel Page 13of14 commission of offences punishable under sections 354 IPC and 509 IPC.
38. Let he be heard separately on the point of sentence.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2018.09.25
16:50:12 +0530
Announced in the Open Court (Neha Paliwal)
on the day of 24th September, 2018 Metropolitan Magistrate-01,
Mahila Court, Central,
Tis Hazari Courts, Delhi
It is certified that this judgment contains 14 pages and each page bears my signatures.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL Date: 2018.09.25
16:50:20 +0530
(Neha Paliwal)
Metropolitan Magistrate-01,
Mahila Court, Central,
Tis Hazari Courts, Delhi
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