IN THE COURT OF MS. [ENTITY] ANAND, METROPOLITAN MAGISTRATE (MAHILA COURT-3), SHAHDARA, KKD, DELHI JUDGMENT U/[SECTION] [ACT] a Serial No. of the case : FIR no. 191/13 PS Nand Nagri [CR No.81969] b Date of the commission of the : 10.04.2013 offence c Name of the Complainant : Ms. X (Name withheld) d Name of Accused person and his : [ENTITY] parentage and residence S/o Sh. [ENTITY] R/o N-354, Sunder Nagri, Delhi. e Offence complained of : 354 [ACT] f Plea of the Accused and his : Not guilty. examination (if any) g Final Order : Convicted h Order reserved on : 12.04.2018 i Order pronounced on : 24.04.2018 1. Vide this judgment a complaint filed by one Ms. X (name withheld in terms of judgment of Hon'ble High Court of Delhi titled as [PRECEDENT] dt. 31.08.2016) against Accused [ENTITY] (hereinafter Accused) registered vide FIR no.191/13 u/[SECTION] [ACT] PS Nand Nagri shall be decided and disposed of. 2. The present FIR was registered with PS Nand Nagari on 10.04.2013 upon a written complaint given by the Complainant. Complainant has claimed that on the night of 10.04.2013 when she was going to attend a marriage from her house to M-block, Baraat Ghar, an incident of eve teasing had taken place with her near Gali no. 7. She stated that at the time of the incident, her son was in her lap, who was somehow saved from falling on the floor. Complainant submits that Accused put his hand on her chest and was in FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 1 / 15 drunken condition. She further stated that after inquiry, she came to know the name of the Accused as [ENTITY] S/o [ENTITY] R/o N/Block, Gali no. 7, Sunder Nagari, Delhi. In the light of aforesaid complaint, legal proceedings were initiated in the present matter with respect to outraging of the modesty of the Complainant. 3. After completion of the investigation by IO SI [ENTITY], charge sheet was filed in this matter against [ENTITY] on 19.07.2013. Vide order of even date, cognizance was taken for the offence mentioned in challan i.e. u/[SECTION] [ACT] and the Accused was summoned before the court. 4. Upon appearance of the Accused before the court, in compliance of [SECTION] [ACT], copies were supplied to the Accused and thereafter, on 28.03.2014 charge was framed upon the Accused [ENTITY] u/[SECTION] [ACT]. Accused pleaded not guilty and claimed trial and thus, the matter was listed for recording Prosecution's evidence. 5. In order to prove the guilt of the Accused, the Prosecution has examined six witnesses, out of which the two are public witnesses i.e. the Complainant and her husband and remaining four are formal police witnesses. A brief overview of the evidence led by the Prosecution is given in the following paragraphs. 5.1 Complainant Ms. X was examined as PW1. She deposed that on 10.04.2013 at around 9 p.m. she along with her husband, [ENTITY] and mother [ENTITY] were going to attend the marriage of her friend [ENTITY] at M-Block Community Centre. She stated that on their way, while they were passing through gali no.7, Accused, who was also passing through the same street in a drunken condition, suddenly tried to hug the Complainant and molested her by touching her breast and her child who was in her lap was also hit by the Accused and she FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 2 / 15 somehow managed to save him. She added that her husband was walking ahead of her and when she and her mother raised an alarm, her husband rushed towards them and people also gathered there, who were calling the Accused by the name of [ENTITY]. She stated that Accused ran away from the spot and later when she along with her husband, mother and other public persons went to his house, he fled away from there also. Complainant stated that she called at 100 number from her husband's mobile phone. She exhibited her statement recorded by the police as Ex.PW1/A and site plan prepared at her instance as Ex.PW1/B. In her cross-examination she revealed that there was no crowd in the street while they were passing through the street and only shop of bakery was open at that time. She also stated that she did not know the Accused prior to the incident in question and had not seen him even after that. She admitted that police did not record the statement of any other witness in her presence. She denied the suggestion of ld. Counsel for the Accused that Accused did not molest her or that her husband had a quarrel with the Accused. 5.2 Husband of Complainant [ENTITY] was examined as PW-2. He deposed in support of the testimony given by the Complainant and reiterated that on the intervening night of 10/11.04.2013 at the place above mentioned, his wife was molested by the Accused who had pushed her and put his hand on her breast and their son who was in her lap was somehow saved. He also stated that at the time of aforesaid incident, he was walking ahead of his wife and mother and only when his wife raised an alarm, he ran towards her. He further stated that the public persons gathered there had informed them the name of the Accused as [ENTITY] and thereafter, his wife called at number 100 through his mobile phone. In his cross-examination, he also stated that there was one bakery shop FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 3 / 15 which was open at that time and there were street lights in the area. He also added that police did not record the statement of any other witness except from his wife and his family. Further, he stated that he was unable to tell the names of the public persons who had gathered at the spot. He also stated that he did not know the Accused prior to the incident in question. He denied the suggestion that no such incident had ever occurred or that he was deposing falsely. 5.3 ASI [ENTITY], posted as duty officer in PS - Nand Nagri on 10.04.2013 was examined as PW3. He deposed to have registered the present FIR no. 191/13 (Ex. PW3/B) on the basis of rukka sent to him by SI [ENTITY] through [ENTITY] [ENTITY]. He exhibited the endorsement made by him on rukka as Ex. PW3/A. He also exhibited the certificate u/[SECTION] [ACT] (Ex. PW3/C) issued by the SHO PS concerned with respect to the authenticity of the FIR registration. He also stated that he recorded the information regarding quarrel with a lady near Masjid, Gali no. 5-6, H-Block, Sunder Nagari, Delhi vide DD no. 40A in roznamcha register (Ex. PW3/D) and information of the same was given to SI [ENTITY] through phone for necessary action. During his cross-examination, nothing substantial was brought out to question his veracity. 5.4 [ENTITY], posted as Constable in PS - Nand Nagri on 22.04.2013 was examined as PW4. The testimony of this witness is relevant only to the extent of proving the arrest of Accused by the IO upon his surrender before the court of Ms. [ENTITY], the then ld. MM. He exhibited the arrest memo of the Accused as Ex.PW4/A and his personal search memo as Ex.PW4/B. Despite opportunity, the Accused preferred not to cross-examine the witness and hence, nil cross-examination was recorded for PW4. FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 4 / 15 5.5 SI [ENTITY], posted as SI in PS - Nand Nagri on 10.04.2013 was examined as PW5 being the IO of this matter. He reaffirmed the testimonies of all the other police witnesses and brought strength to the Prosecution case. He testified that on the day of incident, on receiving of information regarding eve teasing with a lady at about 10.10 p.m. vide DD No.40-A, he along with [ENTITY] [ENTITY] reached at the spot where they met the Complainant and her husband and Complainant gave a written complaint to them, upon which he prepared rukka (Ex. PW5/A) and handed over the same to [ENTITY] [ENTITY] for registration of FIR. He further testified that after registration of FIR, site plan was prepared at the instance of the Complainant (Ex.PW1/B) and he alongwith the Complainant, her husband and [ENTITY] [ENTITY] searched for the Accused but of no avail. He stated that he recorded the statement of Complainant and her husband u/[SECTION] [ACT] He further testified that on 22.04.2013, Accused surrendered before the court of Ms. [ENTITY], the then Ld. MM and he formally arrested (Ex. PW4/A) and personally searched (Ex. PW4/B) the Accused. He correctly identified the Accused as present in the Court. In his cross-examination, he clarified that he requested public persons present at the spot to join investigation but they refused and later, no written notice could be served upon them due to paucity of time. He admitted that TIP of the Accused was not got conducted and added that despite search operations, Accused could not be apprehended by them. 5.6 [ENTITY] [ENTITY], posted as constable in PS - Nand Nagri on 10/11.04.2013 was examined as PW6. In support of the testimony of PW5, he testified that on receiving of DD no. 40A, he alongwith IO went to the spot where Complainant alongwith her husband met them and told them that Accused had FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 5 / 15 misbehaved with her. He added that the Complainant handed over a written complaint (Ex.PW1/A) to the IO, which was taken by him to the PS concerned and thereafter, FIR (Ex.PW3/B) was registered in this matter. He further stated that he had handed over the original tehrir and copy of FIR to the IO and thereafter, statement of Complainant and her husband was recorded and site plan was prepared. He stated that he alongwith IO searched the house of Accused which was found locked from outside. During cross-examination, he admitted that statements of none of public witnesses were recorded as they refused to join investigation. He denied the suggestion of the Ld. Counsel for the Accused that he never joined the investigation or that the entire investigation proceedings were carried out while sitting in the PS itself. 6. After completion of Prosecution evidence, statement of Accused u/[SECTION] [ACT] was recorded on 06.03.2018 whereby he was put with all the incriminating evidence brought by the Prosecution against him. Accused denied the allegations of the Prosecution and stated that he has been falsely implicated in the present case. However, despite being given an opportunity, he preferred not to lead any evidence in support of his case and therefore, the matter was listed for final arguments. 7. Ld. APP for the State as well as Ld. Counsel for the Accused vigorously addressed their arguments in support of their respective cases. Ld. APP for the State has pressed upon guilt of the Accused stating that all the Prosecution witnesses have withstood the test of cross-examination to successfully prove the case of the Prosecution beyond all reasonable doubts and hence, there remains no scope of doubt that Accused has committed the offence in question. . Further, Ld. APP for the State added that in women related offences, FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 6 / 15 even the sole testimony of the Complainant is sufficient to convict the Accused and here, we have another eye-witness present at the spot to support her case i.e. her husband and thus, even absence of other public witnesses would not be of much relevance to the Prosecution case. On the other hand, Ld. Counsel for the Accused has vehemently opposed the contentions of Ld. APP for the State arguing that Accused has been falsely implicated in this matter and rather the Accused, who is present in the court is not even named as [ENTITY] and rather known with the name [ENTITY] which has nowhere been mentioned in the entire trial proceedings. Ld. Counsel for the Accused has also argued that since Accused was unknown to the victim, it was indispensable to conduct TIP of the Accused and the failure of the same proves to be fatal to the case of the Prosecution, thus, meriting acquittal of the Accused from the present case. Submissions have been carefully heard. Record has been thoroughly perused. Before proceeding on to appreciation of evidence, it is yet again reiterated that Accused herein has not preferred to lead any evidence in his defence despite having an opportunity to do so and thus, his guilt or absence of the same has to be guaged only on the basis of the evidence led by the Prosecution. 8. Moving further, prior to scrutinizing the evidence led by the Prosecution, it is important to first examine and understand the charge for which the Accused has been framed i.e. [SECTION] [ACT]. This is one offence, carved in the [ACT], ever since its inception, in order to protect the dignity of women and to ensure that nobody invades their privacy without their permission. It is apt at this stage to have a quick glance at the content of the [SECTION] [ACT] in order to cull out its constituents and examine whether the same stand fulfilled in the case at hand or not. [SECTION] is FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 7 / 15 reproduced below for an easy reference. Assault or criminal force to woman with intent to outrage her modesty- 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 shall not be less than one year but which may extend to five years, and shall also be liable to fine. From the language of the above stated provision itself, the basic ingredients to complete the offence of outrage of modesty of a woman are manifest which include: a) Use of assault or criminal force upon a woman b) Intention/knowledge to outrage her modesty 8.1. From the first essential as mentioned above, it is clear that the victim in cases u/[SECTION] [ACT] can only be a woman. Further, the question as to what is the meaning of assault/criminal force finds its answer in the [ACT] whereby both the said terms find specific mention. [SECTION] [ACT] defines Criminal Force as follows: Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. Further, [SECTION] [ACT] defines Assault as follows: Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation. Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. In view of both the definitions given above, it is clear that not only by actual touch, but even without a physical contact i.e. by gesture or preparation, an FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 8 / 15 act can be covered within the ambit of this provision. Not only acts which cause actual hurt, fear or annoyance but also any gesture or preparation which suggests that criminal force is likely to be used shall be brought under the scope of [SECTION] [ACT]. 8.2. The other essential, which completes the offence u/[SECTION] [ACT] is the intention to outrage the modesty of a woman. The word intention brings the aspect of mens rea as a pre-condition for holding a person guilty of the outrageous act. At the same time, from the language of the provision quoted above, even without the intention, if the person has knowledge that his act is likely to outrage the modesty of a woman, it shall be covered u/[SECTION] [ACT]. 8.3. The most important aspect of the offence u/[SECTION] [ACT] is the meaning of the term outraging of modesty. This term has not been defined anywhere in the [ACT] or in any other Statute passed by the legislature. The same has to be determined on case to case basis depending upon several factors including the general perception of the right minded persons of the society about the act so committed. Nevertheless, certain leading judgments of the Hon'ble Superior Courts, do throw light upon the meaning of the said phrase and it would be appropriate at this stage to have a brief reading of the same. In the matter titled as Mrs. [PRECEDENT], holding that a slap on the posterior of a woman is covered within the scope of [SECTION] [ACT], the Hon'ble Apex Court of India referred to several definitions of modesty as follows: According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word `modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 9 / 15 [ENTITY]'s Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Ed) the meaning of the word `modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". Further, in its leading judgment titled as [PRECEDENT] the Hon'ble Supreme Court of India, throwing light upon [SECTION] held that: So far as the offence under [SECTION] [ACT] is concerned, intention to outrage the modesty of the women or knowledge that the act of the Accused would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. The culpable intention of the Accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
The word 'modesty' is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class.
Recently, further elucidating the scope of [SECTION] [ACT], in its judgment titled as [PRECEDENT] decided on 03.09.2013], Hon'ble High Court of Delhi held that:
31. In order to constitute the offence under [SECTION] [ACT] mere knowledge that modesty of a woman is likely to be outraged is sufficient without any deliberate intention to commit the said offence. There is no abstract conception of modesty that can apply to all cases. A careful approach has to be adopted by the Court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under [SECTION] [ACT] are as under:-
i) That the person assaulted must be a woman;
ii) That the Accused must have used criminal force on her;
iii) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
32. Intention is not the still criteria of the offence under [SECTION] [ACT] and it can be committed by a person assaulting or using criminal force to any woman if he knows that by such act FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 10 / 15 the modesty of the woman is likely to be affected. Knowledge and intention are essential things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offences alleged to have been committed. The factum of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weightage.
In the light of the discussion held above, as well as the legal aspects of the provision u/[SECTION] [ACT] as aforementioned, it is clear that the answer to the question as to whether the modesty of the victim has been outraged or not shall be determined not only from the perspective of the victim but also from the larger perception of women as a class.
9. Coming now to the facts of the case at hand, the first and foremost question which needs to be answered is with respect to the identity of the Accused. It has been stated by the Ld. counsel for the Accused that Accused has never been named as [ENTITY] and his name has always been [ENTITY]. This contention of the Ld. Counsel for the Accused, does not even carry an iota of weight for the purposes of trial in this case as it apparent from court record itself that the Accused himself admits to be known as [ENTITY] and the same has not been disputed by him anywhere during entire trial. In Ex.PW4/A i.e. the arrest memo of the Accused, which has gone unrebutted and hence proved, Accused has signed as [ENTITY] (in devnagri script). Further, in the charge served upon the Accused u/[SECTION] [ACT] on 28.03.2014 also he has signed as [ENTITY] and till date no dispute has been raised by the Accused with respect to framing of charge. Most importantly, in the surrender- cum-bail application filed by the Accused on record, his exemption applications on record, his warrant cancellation application on record, his bail-bonds on record and even the vakalatnama filed on his behalf as well as his medical cards issued from IHBAS, bear his name and signatures as [ENTITY]. It is also vital to note that Accused FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 11 / 15 had not been arrested at the spot and had rather himself come and surrendered in court for the present case which is filed against one [ENTITY] and not [ENTITY], which yet again implies his identification with this name. Thus, there is no denying the fact that Accused is certainly known by the name [ENTITY] and he himself also represents the same. Moreover, the Complainant while deposing on oath the Complainant has specifically identified Accused present in the court as the same person who committed the offence in question with her. It is only on his statement u/[SECTION] [ACT] has the Accused signed as [ENTITY] which shows his clear intentions to mislead the court.
With respect to the issue of conducting of TIP, Ld. Counsel for the Accused has also relied upon several judgments including [PRECEDENT], [PRECEDENT], [PRECEDENT]] and [PRECEDENT]]. All the said authorities have been perused and their crux is that if the witness identifies an unknown Accused in court, the same shall not hold much value if the TIP of the Accused has not been conducted. However, the said judgments or the arguments of the Ld. Counsel for the Accused, do not hold much significance for this case as the presence of the Accused at the spot of the incident has not been disputed by him. Rather, during the cross-examination of PW1, a suggestion has been put to her that her husband had quarreled with the Accused which goes on suggest that he was actually present at the spot of the incident.
Also, as already stated above, Accused has not led any defence evidence which goes against his case. Had he actually disputed his presence at the spot or his identity as [ENTITY], he would have proved the same by bringing sufficient FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 12 / 15 evidence to that effect. However, for the reasons best known to him, Accused has refrained from stepping into the witness box and thus, his defence remains open- ended even till the conclusion of the trial.
10. Moving ahead, the case of the Complainant is that Accused molested her on the street by touching her breast and making an attempt to hug her as a result of which the child whom she was holding in her hand was almost saved from falling. The Complainant has not only reiterated her complaint given to the police in her examination-in-chief but also undoubtedly faced the questions in cross-examination and made her testimony firm. The testimony of her husband also supports her case to the largest extent possible, leaving no scope of doubt that the incident alleged had occurred with her.
Ld. Counsel for the Accused argued that husband of the Complainant i.e. PW2 is not an eye-witness to the incident as he had his back towards the Complainant at the time of the alleged incident. This submission of Ld. Counsel for the Accused has been countered by Ld. APP for the State contending that even if, PW2 had his back towards the Complainant, he did hear her screams at the time of the incident and thus, is a witness to the alleged act. Further, Ld. APP for the State has argued that even if for the sake of assumption it is taken to be true that husband of the Complainant was not an eye-witness, then certainly, he was a res- gestae witness and thus, his testimony becomes of utmost relevance. Moreover, during his cross-examination, it has nowhere been suggested to PW2 that he did not hear the Complainant screaming or that he not see the Accused on the spot.
Both the public witnesses brought by the Prosecution have testified in line with each other, thus, adding more strength to the Prosecution case. Further, with respect to the argument of the Ld. Counsel for the Accused in regard to false FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 13 / 15 implication of the Accused, no merits are found in the same as no motive has been shown by the Accused as to why would the Complainant at the stake of her dignity implicate a man whom she does not even know. Even the IO of this matter i.e. PW5 has supported the version of the Complainant that she did not know him personally and only knew him by name. For alleging that the Accused has been wrongly implicated in this matter, it was highly important for the defence to at least show a motive of the Complainant, however, defence has miserably failed to do the same.
11. With respect to the other evidence brought by Prosecution, yet again, all the formal police witnesses have deposed as per challan filed by the IO. Further, neither the registration of FIR has been disputed by the Accused nor his arrest from the Court. It has been suggested to the IO of this matter by the Ld. Defence Counsel that the Accused was not present at the spot of the incident. However, this suggestion also does not carry much weight for two reasons; one, that it has been put to the Complainant by the Ld. Counsel for the Accused that Accused had quarreled with her husband implying that he was present at the spot and two, plea of alibi has neither been taken by the Accused during his statement u/[SECTION] [ACT] nor proved by leading defence evidence.
12. Further, with respect to the question as to whether the act of the Accused comes within the ambit of [SECTION] [ACT], needless to say, the very nature of the act committed by the Accused i.e. touching the breast of the Complainant, under any circumstance falls within the definition of outraging of modesty. Not only this act but the very audacity of the Accused to commit such an act in presence of mother and husband of the Complainant and that too in full public glare, shows the fearlessness in his mind with respect to commission of a crime. It is such kinds of acts which might last for a few seconds but leave a deep impact on the victim for FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 14 / 15 years to come.
13. In view of the above discussion, this court has no hesitation in holding that by bringing cogent and consistent evidence, Prosecution has discharged its burden of proving the case beyond all reasonable doubts against the Accused. However, on the other hand, not leading evidence in this case has turned out to be the biggest shortcoming of defence, hence pushing the Accused nearer to culpability.
Thus, Accused [ENTITY] is hereby held guilty and convicted for the offences u/[SECTION] [ACT]. This being the case, the Accused shall be heard separately on point of sentence. Copy of this judgment be given to the Accused free of cost. One digitally signed copy of this judgment be also uploaded on the official website.
ANNOUNCED IN THE OPEN COURT ON 24.04.2018 ([ENTITY]) MM (Mahila Court-03) SHD/KKD Courts/Delhi [This judgment contains 15 signed pages] [ENTITY] Digitally signed by [ENTITY] Date: 2018.04.24 GUPTA 16:50:36 +0530 FIR no. 191/13, u/[SECTION] [ACT] titled State vs. [ENTITY] 15 / 15