Delhi District Court
Fir No. 260/98 1 State vs Balbir on 20 April, 2012
FIR No. 260/98 1 State vs Balbir
IN THE COURT OF MS. RACHNA T.LAKHANPAL,
METROPOLITAN MAGISTRATE : ROHINI, DELHI.
FIR No. 260/98
PS - S.P. Badli
U/s. 354 IPC
ID No. 02404R0124831999
20.04.2012
STATE VS. BALBIR
Date of institution : 05.10.1999
Date of Commission of Offence :Intervening night of 21/22.4.98
Name of the Complainant : Smt. Rani Solanki
Name, parentage & Add. Of the
Accused : 1. Balbir Singh
S/o Sh. Harswaroop Singh
R/o B - 199, Nand Gram,
GDA, Gaziabad (UP)
Offence complained of : U/s 354 IPC.
Plea of the Accused : Pleaded Not Guilty.
Final Order : Acquitted
Date for reserve of Order : 21.03.2012
Date of announcing of order : 20.04.2012
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. In brief the case of the Prosecution is that complainant was working in Delhi Police. She was having two kids and was residing alongwith her husband. Her husband, on 19.04.98, left the house by saying that he is going to his father's home. She tried to contact the accused who is the fatherinlaw to know about the whereabouts but she could not contact him over phone. Thereafter, she went to her fatherinlaw's house to FIR No. 260/98 2 State vs Balbir inquire about her husband. It is further case of the Prosecution that accused misbehaved with her there at his house.
2. Investigation commenced and concluded by filing the challan. Arguments on charge were heard and notice U/s 354 IPC was framed against the accused Balbir Singh to which he pleaded not guilty and opted to face trial.
3. In order to bring home the guilt against the prosecution has examined as many as seven witnesses.
PW1 is Smt. Rani Solanki, who is the complainant herself.
PW2 is HC Puran Chand, who recorded the FIR.
PW3 is Ct. Kanwar Singh, who was duty officer.
PW4 is H.Ct. Narayan Singh, who received DD.
PW5 is HC Dharambir Singh, who recorded DD entry.
PW6 is Ashok Kumar, who is brother of complainant.
PW7 is SI Brij Mohan, who is IO of the case.
4. Statement of accused Balbir Singh has been recorded u/s 313 Cr.P.C., wherein he has denied all the allegations made against him. He stated that he is innocent. He has deposed that on the day of incident, complainant came alongwith her brother Ashok and his wife Sheetal and attacked him by throwing bricks. They also threatened him to kill him and his son. His assistant closed the door from inside to save him. He called the PCR Van. Thereafter, they fled away from the spot. PCR van reached at his house and police took him and his assistant to hospital for providing treatment. They sustained injuries and FIR was lodged against the complainant and her brother. He further deposed that he has been falsely implicated FIR No. 260/98 3 State vs Balbir in the present case in order to pressurize him to withdraw that case. Accused opted to lead evidence
5. Defence has led evidence of DW1 Smt. Neelam Devi. She deposed that on 21.04.98, she alongwith her husband visited Rohini, Sector 17 at the house of her brother Dalbir Singh. Complainant Rani alongwith her brother met them. One Jagmender and one more person were also present there. When they reached Rani was already present there. Rani inquired about Sanjay and she show her enability about his address. She went outside the house and remained there. There was a quarrel between Jagmender and one person on one hand and her brother on the other hand. Jagmender and accused Balbir sustained injuries in the quarrel. Police van reached on the spot and took Jagmender and Balbir. Rani left the spot.
6. DW2 is Balbir Singh. He has stated that complainant is his daughter in law. On 19.04.98, his son Sanjay Arya had left the complainant in government quarter situated at Shalimar Bagh. After that complainant contacted him and asked about the whereabouts of his son. He replied that he is not aware. On which, complainant threatened him to implicate him in false criminal case. He made a complaint to the DCP office on 21.04.98 at around 12 noon. On the same day he was informed by his Munshi that complainant Rani Solanki, her brother Ashok Kumar and his wife Sheetal had came to his resident and they took his son's car. He reached at his residence at 11:45p.m. and found that all the three accused persons were waiting for him outside his house. He asked his Munshi to call them inside. He further stated that they shouted from outside as where is Sanjay and he told them that Sanjay was residing with Rani in separate FIR No. 260/98 4 State vs Balbir quarter and he is not aware about whereabouts of Sanjay. He rang to PCR. At this, they got enraged and started throwing bricks at him and Munshi Jagmender. His Munshi closed the door from inside and Ashok and Rani bolted the door from outside. PCR van took him and his Munshi to hospital. On next day he went to PS - SP Badli and asked for copy of FIR on which SHO told him that he should not press for FIR otherwise he will have to face heinous crime cases as Rani Solanki is posted as DCP (N/W) office. His FIR bearing no. 259/98 was registered on his written complaint to DCP office. Rani Solanki also filed a complaint against him in Women Cell and lodged a FIR bearing no. 260/98 against him.
7. DW 3 is Jag Mahender Singh. He has stated that he know the accused. At the relevant time in April 1998, he was working with the accused. He has stated that on 19.4.98 son of accused Sanjay / husband of complainant left his car at the address of his father (accused) telling that an altercation has taken place between him and his wife and he had instructed to take care of his car. On 21.4.98 some police official had come to ask about the accused Balbir Singh. That time accused had gone to Alka Hotel. He further stated that Ashok, the brother of the complainant has taken the car of Sanjay after getting its lock opened and Smt. Neelam, the real sister of the accused who is residing in the same flat had objected to the taking away of car. On 21.4.98 Rani Solanki alongwith her two children, Ashok and his wife Sheetal waited for the accused from 7.30 to 11.45p.m. as they wanted to get some information from him. At about 11.45p.m. the accused (advocate) returned home. On telling of DW3 accused talked to them at gate. At that time Smt. Rani FIR No. 260/98 5 State vs Balbir Solanki, her brother Ashok and his wife Sheetal started rebuking the accused and pelted stones/bricks on him. He and the accused received brick abrasion. He locked the door from inside and accused had made a call at 100 number. At around 12:00a.m., the prosecutrix locked the door from outside and went away. Thereafter, police official came there in PCR, they made inquiries from the accused and himself and prepared site plan. Then police took them to the house of Ashok where the car of Sanjay was parked there. Prosecutrix, Ashok and Shetal were not present in the house. Thereafter police took them to hospital for medical examination. He further deposed that his statement was not recorded by police officials. He deposed that accused is a senior person and shameful allegations levelled against him. He further denied that accused tried to molest the prosecutrix and denied that any such incident took place.
8. Final arguments have been heard on behalf of accused as well as on behalf of the State and record has been meticulously perused. Before proceeding further to prove and analyse various testimonies, let us enumerate the essentials of offence which the prosecution is under a mandate to prove.
For better appreciation of facts Section 354 IPC is reproduced as hereunder: Section 354 of the Penal Code is in these words: "Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years with fine, or with both".
For conviction under Section 354 of the Indian Penal Code, FIR No. 260/98 6 State vs Balbir what the prosecution is required to prove is that :
a) an assault has been committed or criminal force used,
b) the object of the assault or criminal force is a woman, and
c) that it was with the intention of outraging the modesty of a woman or knowledge that it was likely that her modesty would be thereby outraged.
Assault has been defined in section 351 of IPC. Assault committed on women may be of various types and of varying degrees. Some of the other offences against women are rape punishable under Section 376 of the Indian Penal Code, and attempt to commit rape, which can be punished under Section 376/511 of the Indian Penal Code. There may be cases, and frequently there are, where the assault on a woman neither amounts to rape nor an attempt to commit it. It may still be such an assault as interferes with modesty of a woman or is considered indecent according to morality and in the eye of law. The provision contained in Section 354 of the Indian Penal Code is one of the few provisions, contained in the India Penal Code to protect against indecent behaviour or lust of men. It is also intended in the interest of decency and morals and the values that the legislature attaches to the protection of woman against such assaults is obvious from the fact that it has prescribed a punishment of imprisonment of either description for two years and fine without limit as maximum penalty for such an offence. In construing Section 354 of the Indian Penal Code this object of the legislature has not to be lost sight of.
FIR No. 260/98 7 State vs Balbir
9. In the present case, the accused is the fatherinlaw of the complainant. Admittedly there is cross FIR of the incident of the same date i.e. 21.4.98, bearing no. 259/98. Now, I will deal in detail with the testimonies of witness PW1, who is the complainant and PW6, who is the brother of the complainant. In her original complaint, before the police, she deposed that her husband left the home on 19.04.98 around 6:30 pm, saying that he is going to Rohini to his father's home but he did not return. She tried to contact her father in law over phone but the phone could not be connected. Thereafter, she alongwith her kids went to her fatherinlaw's house. There she met servant Jagmender who told her that accused had gone somewhere. She kept on waiting there. Accused did not return by 11:00 pm and during this waiting period, she took a little nap and at around 12:00 (night), she felt some pressure on her breast and when she got up, she saw that accused is slightly bent towards her. He was not wearing his pants and he had already opened the draw string (nada) of her salwar. When the complainant turned back, the accused stated that don't worry about anything. Sanjay has left and I am there for you. She sustained some injuries in this scuffle but she did not get herself medically examined. Then, a complaint was made to the police on 22.04.98. The complainant in her testimony before the court deposed that her husband left the house on 19.04.98 alongwith his brother K S and Sushma, wife of KS. Interestingly, the complainant did not mention in her original complaint that her husband left the house alongwith his brother, whereas, in her original complaint she stated that her husband left the house by saying that he is going to his father's house. Thereafter, she deposed in her testimony that she made various calls to the accused on 20.04.98 and 21.04.98 regarding FIR No. 260/98 8 State vs Balbir whereabouts of her husband and the accused told her that he is not aware regarding the whereabouts of her husband. But, in the original complaint made before the police, the complainant stated that she tried to contact the accused but the accused could not be connected, whereas, before the Court she testified that accused told her that he not is aware of the whereabouts of her husband over telephone.
10. Further, she deposed that on 21.04.98 at about 7:00 pm, he went to the house of the accused saying that she could not contact the accused on the phone, whereas, in her original complaint she deposed that she went to the house of the accused to inquire about the whereabouts of her husband.
11. In her testimony, she deposed that as it was summer season, she was standing outside the house. She went to the house of her brother who lived at Sector 16, Rohini and returned by 6:30 pm and started waiting for the accused whereas in her originl complaint made before the police, she nowhere stated that she came back in between to the house of her brother and then again went to the house of the accused.
12. In her testimony before the Court, she deposed that her daughter was only 3 years old and she was trying to get her asleep and while doing so she also took a nap inside the house on the single bed, whereas, in her original statement before the police she nowhere stated that she was making asleep her daughter or she was lying on the bed.
13. Apart from the other discrepancies, PW6, who is the brother of the complainant, deposed before the Court that complainant came to her in the night of 21/22.04.98 at about 12:30 am. Then he came to know that her sister had come to her FIR No. 260/98 9 State vs Balbir father in law's house alongwith her children in search of his husband. Interestingly, the complainant had deposed that she had left her son at the house of her brother and thereafter, she again went to the house of the accused but the brother of the complainant nowhere deposed that his sister had come between 7:008:30 pm and left her son at her home. He deposed before the court as if on 21/22.4.98 complainant went to him around 12.30a.m. for the first time and only then he came to know about that his sister had visited her father in law's house.
14. In such background and such discrepancies, the defence of the accused assumes importance, that this case has been filed as a counterblast to his case and on the date of the incident, the complainant had come alongwith her brother and his wife and had attacked him. FIR was registered against the complainant, the accused and the complainant's brother. This fact of registration of FIR No. 259/98 has been admitted in the cross examination by the complainant. Although, the complainant deposed that the relation with her husband was cordial before leaving the house till 19.04.98, but it does not seems to be probable that the relations of the complainant were normal because of the fact that she herself deposed before the Court that she went to the house of the accused so that she can talk to his son for bringing him again to the house, which shows that there were some differences between the complainant and her husband. Admittedly, later on, a complaint before the CAW Cell was also filed. If that is so, it is not at all probable that a fatherin law would behave in such a manner with his daughterinlaw, who is working in Delhi Police, when she had such strained relations with his son. The complainant made a statement FIR No. 260/98 10 State vs Balbir before the police on 22.04.98 i.e. on the next day. It is not at all probable in normal circumstances that a person working in Delhi Police would not do anything, when such things happened to her and instead of calling police or waiting there she would go back and next day, she would come to the Police to report. Hence, in such circumstances, deliberation and manipulation cannot be ruled out.
15. It is well settled law that Court can take judicial notice of certain facts and hence here I refer order dated 13.01.12 passed by myself in FIR No. 259/98, whereby, the present accused had filed the FIR. The complainant, wherein, has been acquitted but the brother of the accused has been convicted and this incident was of same place and was of same time. This again goes on to show that the present case has been filed as a counter blast and brother of the complainant was also there at the time of incident. And which again legates the happening of alleged incident. There are various other loop wholes also in the Prosecution case. Further more, going by testimony of PW6, if the children were with the complainant then it is not at all possible in normal circumstances that the children will keep on sleeping during the happening of such incident and noise. Her son must be aged about 7½ years and was capable of understanding scuffle or quarrel but the same has not been made as a witness. Further more, her brother stated before the police in his statement u/s 161 Cr.P.C., that complainant told him that she went asleep sitting on the chair whereas the complainant deposed that she was sleeping on the bed with the child. The complainant has nowhere explained that why she went to the PS the next day, immediately and not immediately after the incident or why she FIR No. 260/98 11 State vs Balbir not called the police. PW5 HC Dharamvir had deposed at about 12:00 am, he had received a call, the complainant Rani had left the spot and was not available. It has been proved that call was of quarrel and upon which thereafter FIR No. 259/98 was registered. The accused person was medically examined alongwith other person Jagmender. The court can take judicial notice of the same as this court has itself passed the judgment in FIR No. 259/98. Moreover, the complainant did not get herself medically examined, that again goes on to show that there was no injury upon her person. Further more, PW5 has testified that there was call of quarrel which shows that after quarrel, the complainant left the spot that is why she did not remained there and came to the PS after due deliberation.
16. In view of the above discussion, the present case seems to be a counter blast. The prosecution has failed to prove the case beyond reasonable doubt. Accordingly, the accused stand acquitted of the offences U/s 323/354/34 IPC. However, his surety bond shall remain extended till six months from today u/s. 437 A Cr.P.C. File be consigned to record room after necessary compliance.
(RACHNA T. LAKHANPAL) METROPOLITAN MAGISTRATE MAHILA COURT/ROHINI/DELHI.
Announced in the open court today i.e. 20.04.2012.