Delhi District Court
State vs . Hoshiyar Singh on 20 January, 2014
IN THE COURT OF MS. SHELLY ARORA: METROPOLITAN MAGISTRATE (MAHILA
COURT): SAKET COURTS, NEW DELHI
State Vs. Hoshiyar Singh
FIR NO. 276/10
PS New Friends Colony
Date of Institution of case : 06.01.2011
Date on which case
reserved for judgment : 15.01.2014
Date of judgment : 20.01.2014
JUDGMENT U/S 355 Cr. P.C .
a)Date of offence : 29.11.2010
b)Offence complained of : 354/509 IPC
c)Name of accused, his parentage : Hoshiyar Singh
S/o Dhonkal Lal
R/o Duriya, PS Gudha Gorjika District
Jhunjhunu, Rajasthan
d)Plea of accused : Pleaded not guilty.
e)Final Order : Convicted u/s 354 IPC
Acquitted u/s 509 IPC
JUDGMENT:
1. Accused Hoshiyar Singh has been sent to face trial on the allegations that he had as saulted and used criminal force upon the complainant Ms. Samcha Lownga with an intention to outrage her modesty and also had used filthy obscene language towards her with an intention to insult her modesty and thereby committed an offence pun ishable u/s 354/509 IPC.
FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 1 of 142. Brief facts of the prosecution case are as follows : The taxi of the accused was hired on 29.11.2010 at about 5.30 am from Royal Plaza Hotel in New Friends Colony by the complainant to Lajpat Nagar where the house of the complainant is located. She was along with her three colleagues/friends in the cab. She sat next to the driv er in the front whereas her three colleagues/friends were seated on the back seat. It is alleged that accused tried to slide his hand up the skirt of complainant while changing the gaer and thus misbehaved with her towards she objected. He was asked immediately to halt the vehicle and then as per the advise of the sister of the complainant at Royal Plaza Hotel, she asked the cab driver to take them back to the hotel. The cab was brought back to the hotel where the accused was confronted of his alleged acts and later on police was informed. He was apprehended and arrest ed. Statement of the complainant was recorded. FIR was registered. After conclu sion of investigation, charge sheet in the matter was prepared and filed in the court by the IO upon which cognizance of the offence was taken by the court.
3. Notice of substance of accusation was served upon the accused for the commission of offence punishable u/s 354 /509 IPC vide order dt. 29.09.2011 passed by Ld. Pre decessor of this court, to which accused pleaded not guilty and claimed trial instead.
4. Matter was then listed for PE. Prosecution has produced five witnesses in the matter. Defence has produced two witnesses.
5. PW1 is Ms. Samcha Lowang who deposed that she had hired a cab on 29.11.2010 at about 5.30 am from Royal Plaza Hostel, NFC to Lajpat Nagar along with her col leagues namely Mary, Osin and Geyee. She clarified that she sat next to the driver seat whereas her three colleagues were seated on the rear seat of the cab. The ac cused was on wheel in that cab as cab driver, tried to change the gear and his hand touched upon her legs which was first ignored by PW1 as an inadvertent act, but FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 2 of 14 this was repeated again after 510 minutes by the accused who tried to slide his hand upward her skirt upon which he was confronted by her to which he denied. PW1 Ms Samcha then instructed the cab driver to halt the vehicle which he did after her repeated requests. Upon enquiry, the incident was narrated to her three colleagues sitting at the rear seat but the same was denied again and again by the driver who then proposed that he wont charge them. She further deposed that she received a call from her sister Ms. Chajat Lowang on her mobile who was at Hotel Royal Plaza at that time and she narrated the entire incident to her who asked her to immediate ly came back to the hotel who instructed the accused accordingly. The accused was confronted by her sister who was waiting outside the hotel for the cab to come back but it was again denied by the accused who also behaved very rudely with her and thus was slapped by her. The matter was reported to the police and she proved her complaint Ex. PW1/A in this respect appears her signature at point A. She also wit nessed the arrest of the accused vide memo Ex. PW1/B.
6. In the cross examination by the counsel for accused, PW1 Ms. Samcha Lowang stat ed that she reached at Hotel Plaza at about 1.001.30 am. She further stated that the vehicle was hired from the hotel through the counter at hotel and the bill was to be paid after getting dropped and that she started from the hotel to be back to her place at about 4.30 am and the bill in this respect was to be given by the accused which was not released as she was not dropped at the destination. She declined the suggestion that she had taken the drinks in the party at the hotel, however admitted that her friends Osin, Geyee, Mary had taken the drinks at the hotel in the party. She further denied the suggestion that she falsely implicated the accused as she did not intend to make payment of the legitimate hired charges as demanded by him af ter he took her to desired destination and thus was habitual of not paying the due charges. She further clarified that she was not made complainant in any other state case.
FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 3 of 147. PW2 is Chajat Lowang who deposed that she had telephonic conversation with her sister Ms. Samcha who narrated that she was misbehaved with by the accused who was the cab driver and then she had asked her sister to ask the driver to bring the cab to the hotel and that she had confronted the cab driver of his ill acts to which he denied. Police was called. She identified the accused present in the court.
8. In the cross examination by the accused, PW2 Ms. Chajat Lowang stated that there were four girls in the back seat of the cab while her sister was sitting in the front seat. She admitted that her sister along with other girls had taken alcohol in the night and she had not taken any alcohol in the night of the incident. She denied the suggestion that her sister had falsely implicated the accused as she denied to make the payment of legitimate charges payable to the accused person to which she sub mitted that cab driver himself offered not to make any payment in case she opted not to make any complaint against him. She admitted that she is the complainant in an other state case. She denied the suggestion that she had treated the accused improp erly and had also slapped him when he asked for due charges on the date of inci dent.
9. PW3 is ASI Adrina who deposed that she registered the FIR in the present case, orig inal record of which is Ex. PW3/A. She was not cross examined by the counsel for accused despite opportunity.
10.PW4 is ASI Devender Singh who deposed to have reached at Surya Hotel along with Ct. Naveen on 29.11.2010 on receipt of DD No. 5B, the copy of which is Ex. PW4/B, where he recorded the statement of prosecutrix and got the FIR registered vide his endorsement Ex. PW4/A. He proved the site plan Ex. PW3/C and seized the taxi of the accused vide Seizure Memo Ex. PW4/C. He deposed to have arrested the accused vide Arrest Memo Ex. PW2/B and conducted his personal search vide Per FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 4 of 14 sonal Seizure Memo Ex. PW4/D.
11.In the cross examination by the Ld. Counsel for accused, PW4 ASI Devender Singh stated that DD entry was received by him at 6.10 am. He further submitted that the complainant, her friend Ms. Chagat and parking attendant was present at the spot. He further stated that copassenger were already dropped on the way back to the ho tel, hence they were not joined as witnesses in the case, although they were with her while the taxi left from the hotel. He further submitted that he did not enquire re garding the booking of taxi from the booking counter to Surya Hotel. He denied the suggestion that the complainant filed this false case against the accused as the com plainant refused to pay the due charges payable against the taxi and that he was beaten when he asked for payment of those charges.
12.PW5 is Ct. Naveen who deposed to have taken the rukka Ex. PW4/A to the Police Station for registration of FIR. He witnessed the seizure of the taxi bearing no. DL1T 6911 vide Seizure Memo Ex. PW4/C and the arrest of accused vide Arrest Memo Ex. PW4/B and personal search vide Personal Search Memo Ex. PW4/D and had put his signatures on these documents. In the cross examination by the Ld. Counsel for ac cused, he submitted that DD entry was received by the Investigating Officer at about 5.40 am and they reached at the spot at about 5.55 am on foot and that 1520 per sons had gathered on the place of occurrence when they reached the spot. He de posed that the accused had injury marks on the body and that he was taken for med ical examination vide memo Ex. PW5/DA.
13. Prosecution evidence then stood concluded.
14. Incriminating evidence appearing on record against the accused was put to him while recording his statement u/s. 313 Cr.P.C. r/w Section 281 Cr.P.C. to which he de FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 5 of 14 nied the allegations levelled against him and stated that false complaint was lodged against him. He deposed that his taxi was hired from Surya Hotel on the fare basis. When the taxi fare was asked from the complainant, she refused to make the pay ment and also threatened him not to demand the taxi fare, else she would implicate him in the false case and then he returned back at the hotel. He further submitted that the complainant was under the influence of alcohol. She had misbehaved with him and beaten him up and made the false case against him. He gave willingness to lead DE.
15.DW1 is Dalip Rawant who deposed that he was at taxi stand on 29.11.2010 at about 6.00 6.30 am in front of Surya Hotel Gate, when he heard some noises inside the gate of Surya Hotel where he saw accused Hoshiyar Singh along with 45 per sons including 12 ladies present there. He further deposed that the accused Hoshi yar Singh had demanded the taxi fare from the ladies but quarrel had taken place and ladies threatened to get him implicated in the false case. He further deposed that 45 persons were telephonically called from the hotel who had beaten up the ac cused Hoshiyar Singh and then 100 number call was made by the girl. He further deposed that he along with other taxi driver had asserted to the police that the quar rel had taken place upon non payment of the taxi charges but the police did not pay any heed to them. He had further put his observation that two ladies seemed to him to be in drunken stage.
16.In the cross examination by the Ld. APP, DW1 Dalip Rawant, he admitted that he cannot say anything about the incident which happened inside the cab before 6.00 am. He could not clarify the amount which was being charged by accused Hoshiyar Singh or the amount which was offered by the complainant. He further submitted that any complaint with respect to travel charges was not made by accused.
FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 6 of 1417.DW2 is Sh. Ram Pal who deposed that he was carrying milk being a milk vendor and was on his way to Okhla Mor when he heard some loud noises inside the gate of Surya Hotel on 29.11.2010 and saw accused Hoshiyar Singh along 45 persons in cluding two ladies present there with accused Hoshiyar Singh demanding the taxi fare from the ladies but a quarrel took place and those ladies threatened to get him implicated in the false case and also telephoned 45 persons who had beaten the ac cused. He admitted that two ladies appeared to in drunken stage and had when they tried to communicate the police about the actual case at Surya Hotel being the non payment of taxi charges but the same was not paid any heed.
18.In the cross examination by the Ld. APP for State, DW2 Ram Pal submitted that he was acquainted with the accused for past about 1012 years. He also submitted that any complaint regarding non payment of travel charges was not made and that ac cused Hoshiyar Singh was not paid travel charges by the complainant in his presence and he could not clarify as to what amount was offered by the complainant regard ing the travel charges, although the accused as per his information had demanded Rs.500600/ for pick and drop. Accused closed his Defence Evidence.
19. Final arguments were advanced. Ld. APP has contended that the case of the prose cution stand beyond reasonable doubt in view of the testimony of PW1 and PW2 asserting that other girls were not real witnesses to the actual incident and thus need not even be examined in this case as witnesses. Ld. Defence Counsel on the other hand, argued that the present case was a false one filed on account of refusal of pay ment of due travel charges to the cab driver. He further argued that PCR call was not made by the complainant while on her back to the hotel and the girls who were in the taxi were not examined by the police at all and even manager and lobby staff was not made witnesses in this case. He further argued that the accused was beaten up at the behest of the complainant and his nose was bleeding due to the injury FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 7 of 14 where as the complainant and her friends who were in drunken stage were not even got medically examined by the police to ascertain the level of alcohol.
20. I have perused the record carefully.
21. Accused has been served with notice for commission of offence punishable u/s 354 IPC and Section 509 IPC. The legal ingredients and legal settled position with re spect to offence punishable u/s 354 IPC are as follows:
In order to bring home charge under Section 354 IPC, the prosecution has to prove-
(i) that the victim concerned belonged to fair sex
- whatever her age may be
(ii) that the accused subjected her to assault as defined in Section 351 of Indian Penal Code or to criminal force as defined in Section 350 IPC and
(iii) the accused while committing assault or using criminal force intended to outrage the modesty of the woman or knowing it to likely that thereby her modesty would be outraged.
22. A person is said to use force when he causes motion or change or motion or cessation of motion to another person or the above in substance which brings it in to contact with any FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 8 of 14 part of the other person's body or with anything that the other is wearing or carrying or with anything so situated that such contact affects other's sense of feeling. This should be done by his own bodily power or by use of some sub-
stance or by inducing any animal to change this motion. The use of force will become criminal when it is done against the consent of any person with the intention of committing an of- fence or to cause injury, fear or intention of committing an offence or to cause injury, fear or annoyance to any person.
23.Any act which adversely affects the modesty of a woman or is offensive to the sense of modesty, decency or repugnant to womanly virtues or propriety of behaviour would be an outrage or insult to modesty of a woman.
24.In the Oxford English Dictionary (1933 Edition), the meaning of word "modesty" is given as - " Womanly propriety of be-
haviour, scrupulous chastity of thought, speech and conduct (in men or women) reserver or sense or sense of shame pro-
ceeding from instinctive aversion to impure or coarse sugges- tion". Thus, the word modesty within the meaning of Section 354 IPC does not refer to a particular woman but to the ac-
cepted notions of womanly behaviour and conduct as an at-
tribute associated with female human beings as a class, being a virtue which attaches to female on account of her sex.
25. The legal ingredients of the offence under Section 509 IPC are as follows:
FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 9 of 14(a) Utterance of a word or making any sound or gesture or exhibiting any object by any person,
(b) With an intention that such word or sound shall be heard or that such gesture or object shall be seen,
(c) By any woman with an intention to insult her modesty or to intrude upon her privacy.
26. PW1 Ms. Samcha Lowang is the most significant witness in the matter. She is the victim and the complainant herself in this case. She has categorically and specifically narrated what she faced at the hands of accused in the witness box. She has been put to elaborate cross examination by counsel for the accused who has not been able to cull out any significant contradictions or inconsistency in her version. Her testimony is well corroborative of the content of her complaint as well. The incident happened in a cab where the victim was sitting on passenger seat besides the driver who is the accused in this case while her friends were sitting at the back. It was very late at night that they were all going back after a party at a hotel. In the eventuality, the evi dence if at all which could appear on record was that of the one who faced/suffered at the hands of the accused in the sense that the acts attributed to the accused were so, it was only her who could be able to explain and none other. Thus, the girls who were sitting at the back in the matter really could not have known, seen, witnessed so considering the nature of the act and attenuating circumstances. Infact, accused also being aware that the woman sitting besides him was on her way back from a party and most probably would have had drinks as well and thus would not be able FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 10 of 14 to come to know/realize about his express act or intent to do the act alleged against him. Thus, the contention that the girl sat at the back were not made the witnesses does not hold substance as the entire incident has been very visibly put across by the complainant and there is no reason with the Court to disbelieve what she has assert ed.
27.Further, it is contended by Ld. Defence Counsel that any PCR call was not made by the complainant immediately when the incident happened. Considering that com plainant was with other girls and the driver also who did not act in a befitting man ner and as she received a call from her sister her asking the accused to drop her back at the hotel itself where her sister was also present appears to be very natural and as such after reaching the hotel, the police was immediately called. The complainant it appears needed someone by her side to be able to take a decision to give her confi dence and belief of what she was supposed do.
28.Further, there were no occasion of the Manager or Lobby staff of the hotel to be made witnesses in the matter considering that the alleged acts happened inside the vehicle only with the complainant. In the circumstances it could not be felt, under stood or seen by anyone else other than the complainant thus there was no occasion for the Manager or the Lobby Staff who were mainly present when the acts was brought back at the hotel and police was called at the hotel.
29.It is further contended by counsel for the accused that it was on account of evading the payment of the taxi that this false complaint was filed by the complainant. It ap pears very bizarre as to why a woman would after reaching home as per the version of the accused himself would ask him to get back to the place from where they start ed just to evade the payment. The concerned accused person parks his taxi in front of the hotel from where it was hired by the hotel staff as a routine thus same would FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 11 of 14 have happened on some occasion with the other taxi drivers as well. The com plainant and her sister also would have hired taxi at other occasions but any such complaint or incident has not been reported with any other taxi driver. It is not logi cal to believe the reasons put across by the accused as to why the complainant would put her reputation at stake only for the purpose of evading the payment.
30.As per the medical examination of accused himself, as deposed by PW5 Ct. Naveen Kumar which is Ex.PW5/DA, the smell of alcohol was found to be present and noted by the concerned doctor during his medical examination. Thus, he was well drunk while he was hired to drop back the complainant from the hotel, thus to say that the complainant was drunk and her medical examination ought to have been done can be seen as a tactic to indict the complainant on the ground of social acceptability of behaviour. It was not a crime for her even to have taken the drinks during the party and having hired a taxi in the late night to go back home.
31. One of the defence witnesses produced in this case is a taxi driver and the other runs a milk dairy shop. DW1 taxi driver appeared on the scene only at the hotel when the accused was roughed up by the hotel staff and police was called and thus the concerned person could not have been aware about the actual allegations at that stage and what was allegedly faced by the complainant. The other witness Ram Pal also appeared on the scene at that time itself and as such cannot impinge on what happened earlier with the complainant.
32.PW1 Ms. Samcha Lowang has been able to put her version very convincingly before the Court. There are no apparent contradictions on record and there is no reason to disbelieve her version. Whether or not she took liquor in the party is not of any sig nificance in the matter. She narrated all particulars as to what she faced at the hands of accused. There is no delay in reporting the matter to the police. The complaint has FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 12 of 14 been duly proved by her. Her sister Ms. Chajat Lowang who was at the hotel also cor roborated the testimony of PW1 Ms. Samcha Lowang. Other people at the hotel could not have helped the case better than the testimony of Ms. Chajat Lowang who was present at the hotel who had asked Ms. Samcha Lowang to get the taxi hired from the hotel. Ms. Samcha Lowang acted naturally under the circumstances she enumerated as part of her testimony. FIR has been duly proved. The endorsement on the FIR and other documents have also been proved. Accused was immediately ap prehended and arrested vide Arrest Memo which is also duly proved in the Court.
33. Prosecution is under the mandate to prove its case beyond reasonable doubt. Act of the accused had targeted the complainant on account of her sex. The act was one so as to impinge and insult the sense of womanhood in the reasonable social percep tion. The intent also is very clear and nailed considering the act of the accused which reflects the perversity of his mind. It was a case where the accused thought would be able to get away considering that as per version the complainant was drunk and therefore would not mind or would not agree or would not even come to know as to what he was upto. As it was only a slight spillage that he went for and as such there were no other persons who would have seen what he did or felt what he did, he would be easily able to get rid off. This Court completely agrees and believes what the complainant went across. The act of the accused coupled with the intent is suffi cient to establish culpability upon the accused Hoshiyar Singh. As such as per the tes timony, accused has not used any indecent words or gestures upon the complainant rather as touched upon her legs and knees to slide her skirt up her legs and has used criminal force upon her by touching her with an intent as noted otherwise and thus there are no words or signs used by him as per the testimony of the complainant with intention or deliberation of those words to be heard or signs seen with an inten tion to insult of modesty of Ms. Samcha Lowang. In view of the observations made above, accused Hoshiyar Singh is acquitted of the offence punishable under Section FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 13 of 14 509 IPC. Accused Hoshiyar Singh, however, stands convicted of offence punishable u/s 354 IPC. Ordered accordingly.
Announced in the open court today (SHELLY ARORA)
on 20.01.2014 M.M. /Mahila Court/SED
Saket/ N.D./20.01.2014
FIR No. 276/10 PS NFC State Vs. Hoshiyar Singh Page 14 of 14