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Section 354 in The Indian Penal Code
Section 509 in The Indian Penal Code
Section 506 in The Indian Penal Code
Section 376 in The Indian Penal Code
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Delhi District Court
State vs Mr. Tonny -:: Page 1 Of 15 ::- on 1 February, 2014
Author: Ms. Nivedita Sharma
                                                 -:: 1 ::-



           IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
                   ADDITIONAL SESSIONS JUDGE
                 (SPECIAL FAST TRACK COURT)-01,
                 WEST, TIS HAZARI COURTS, DELHI

Sessions Case Number                                         : 160 of 2013.
Unique Case ID Number                                        : 02401R0593722013.

State

Versus

Mr.Tonny
Son of Mr.Attar Singh
Resident of WZ-339, 80 Yards, Harijan Colony
Tilak Nagar, Delhi.


First Information Report Number : 458/2013.
Police Station Tilak Nagar.
Under sections 354/376/506/509 of the Indian Penal Code.


Date of filing of the charge sheet before                             : 20.11.2013.
the Court of the Metropolitan Magistrate
Date of receipt of file in this Court                                 : 17.12.2013.
{ASJ (SFTC)-01, West, THC, Delhi}
Arguments concluded on                                                : 01.02.2014.
Date of judgment                                                      : 01.02.2014.


Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the
             State.
             Accused in judicial custody.
             Mr.Dwarka Sawale, counsel for the accused.
             Ms.Shubra Mendiratta and Ms.Poonam Sharma, counsel for
             Delhi Commission for Women.
*************************************************************
Sessions Case Number : 160 of 2013
Unique Case ID Number : 02401R0593722013
FIR No. 458/2013, Police Station Tilak Nagar
Under sections 354/376/509/506 of the Indian Penal Code.
State versus Mr. Tonny                                                  -:: Page 1 of 15 ::-
                                                  -:: 2 ::-



JUDGMENT

"To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is meant brute strength, then, indeed, is woman less brute than man. If by strength is meant moral power, then woman is immeasurably man's superior. Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her, man could not be. If nonviolence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?"----Mahatma Gandhi.

1. Mr.Tonny, the accused, has been charge sheeted by Police Station Tilak Nagar, Delhi for the offence under sections 354/376/506/509 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 13.09.2013 at about 8.00 p.m at unknown place within the jurisdiction of Police Station Tilak Vihar, he intended to insult the modesty of the prosecutrix (name withheld to protect her identity) uttered abusive words to her; for the last ten days prior to 13.09.2013 he had been continuously following prosecutrix and contacted her to foster personal interaction repeatedly despite a clear indication of disinterest by her and thereby committed the offence of stalking; he outraged the modesty of prosecutrix by misbehaving/teasing and holding her hand; during the above said period he threatened the prosecutrix to kill her or throw acid on her face or that he would commit suicide by hanging thereby implicating her in a criminal case, if she did not marry him; and during the above said period once or twice he committed rape upon prosecutrix .

2. After completion of the investigation, the charge sheet was filed Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                         -:: Page 2 of 15 ::-
                                                  -:: 3 ::-



before the Court of the learned Metropolitan Magistrate on 20.11.2013 and after its committal, vide order dated 16.12.2013 of the learned District and Sessions Judge, West, the case has been assigned to this Court of the Additional Sessions Judge (Special Fast Track Court)-01, West, THC, Delhi for 17.12.2013.

3. After hearing arguments, charge for offence under sections 509/354/354D/506/376 of the IPC was framed against the accused vide order dated 17.01.2014 to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution has examined two witnesses HC Mange Ram as PW1 and the prosecutrix as PW2.

5. PW-1 HC Mange Ram, duty officer had recorded the formal FIR of this case.

6. All the safeguards as per the directions of the Hon'ble Delhi High Court and Hon'ble Supreme Court while recording the statement of the prosecutrix have been taken and the proceedings have been conducted in camera. Guidelines for recording of evidence of vulnerable witness in criminal matters, as approved by the "Committee to monitor proper implementation of several guidelines laid down by the Supreme Court as well as High Court of Delhi for dealing with matters pertaining to sexual offences and child witnesses" have been followed.

7. The prosecutrix, as PW2, has deposed that accused Tonny lives Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                         -:: Page 3 of 15 ::-
                                                  -:: 4 ::-



in her locality opposite to her house in Tilak Vihar, Tilak Nagar. She has correctly identified the accused Tonny. She has deposed that whenever she used to go to her work, accused would chase her and tease her. He used to abuse her and call her by her name while chasing her. Accused did not do anything else with her. She had lodged a complaint to the Police Station Tilak Nagar regarding the behaviour of the accused (Ex. PW2/A). She has deposed that she can sign in Hindi but she cannot read and write since she is a illiterate. Her statement (Ex.PW2/B) was recorded by the learned Metropolitan Magistrate and out of anger, she had stated before the learned Metropolitan Magistrate that the accused had attempted to do some wrong acts with her (galat kaam karne ki koshish ki thi). Galat kaam means accused tried to hold her hand forcibly. She was not taken by the police to any hospital for her medical examination.

8. As the prosecutrix was hostile and had resiled from her earlier statement, the Additional Public Prosecutor has cross-examined her.

9. In her cross examination by the Additional Public Prosecutor, PW2, the prosecutrix, has deposed that she had spoken truth before the learned Metropolitan Magistrate on 17.09.2013. She had stated before the learned Metropolitan Magistrate that accused Tonny used to chase her when she would go to her work to clean the utensils in the houses and by chasing accused would threaten her at the point of knife and would ask her to marry him. She has admitted that she had stated before the learned Metropolitan Magistrate that the accused once or twice had forcibly taken her to somewhere in a room and at a point of knife, he got removed her clothes Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                       -:: Page 4 of 15 ::-
                                                  -:: 5 ::-



and also removed his clothes and had physical relations with her. She has further admitted that she had stated before the learned Metropolitan Magistrate that the accused used to threaten her that he would commit suicide by hanging himself from a fan and would implicate her in that case and accused had also threatened to kill her husband and children. She had made her statement, as deposed above, before the learned Metropolitan Magistrate out of anger and she had spoken lies. She has admitted that she was counseled by a counselor from some NGO in the Police Station Tilak Nagar on 17.09.2013 vide report (Ex.PW2/C). She has admitted that she had told the counselor all the facts which are mentioned in the report. However, the same are not correct. She has denied the suggestion that she had been won over by the accused and his family who are staying in a house opposite to her house. She has denied that that whatever she had stated before the learned Metropolitan Magistrate and counselor, that had actually happened with her.

10. In her cross examination by the counsel for accused, PW2, the prosecutrix, has admitted that the accused has never raped her. She has admitted that the accused has never threatened to kill her or throw acid on her face. She has admitted that accused had never threatened to commit suicide by hanging himself and implicating her in a criminal case and that accused has only followed her, forcibly held her hand and abused her. He had followed her only two or four times. The prosecutrix has stated that she wants that the accused should be given an opportunity to reform himself and a lenient view should be taken against him.

Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                             -:: Page 5 of 15 ::-
                                                  -:: 6 ::-



11. The prosecutrix, has not deposed an iota of evidence of her being threatened and raped at all. She has not even mentioned the word "rape" in her evidence nor has deposed anything incriminating against the accused Mr. Tonny. She has categorically deposed that accused never threatened to kill her or throw acid or never threatened to commit suicide by hanging himself and implicating her in a criminal case. She has only deposed that the accused had followed her, stalked her, held her hand and abused her.

12. At this stage, the counsel for accused as well as the accused had submitted on 31.01.2014 that the accused wants to plead guilty for the offence under sections 509, 354 and 354D of the IPC. He had moved an application to the same effect for pleading guilty. The accused had been told about the consequences of his pleading guilty and that he can be sentenced to imprisonment, fine and both but he had persisted in his plea of guilt. His statement regarding his plea of guilt was separately recorded on 31.01.2014. The same was kept for consideration for 01.02.2014.

13. As PW2, the prosecutrix, who is the star witness has turned hostile and has not supported the prosecution case in respect of commission of offences under section 506 and 376 of the IPC and more importantly has not assigned any criminal role to the accused regarding his giving threats to her and raping her and as the accused is pleading guilty to the offences under section 509, 354 and 354D of the IPC, the prosecution evidence is closed, declining the request of the Additional Public Prosecutor for leading further evidence, as it shall be futile to record the testimonies of other witnesses, who are official in nature. The precious Court time should not be wasted in Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                         -:: Page 6 of 15 ::-
                                                  -:: 7 ::-



recording the evidence of formal or official witnesses when the prosecutrix herself is partly hostile and has not supported the prosecution case regarding offences under section 506 and 376 of the IPC and as the accused is pleading guilty to the offences under section 509, 354 and 354D of the IPC.

14. Statement of the accused regarding offences under section 506 and 376 of the IPC is dispensed with as there is nothing incriminating against him when the prosecutrix is hostile regarding the accused threatening and raping her and nothing material has come forth in her cross examination by the prosecution.

15. The statement of the accused wherein he has pleaded guilty to the offences under section 509, 354 and 354D of the IPC appears to have been made voluntarily and without any threat, pressure, influence or coercion. The accused, even today i.e. on 01.02.2014 has persisted in his plea of guilt. In the circumstances, the plea of guilt of the accused regarding the commission of offences under sections 509, 354 and 354D of the IPC is hereby accepted.

16. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.

17. In the light of the aforesaid nature of deposition of the prosecutrix, PW2, who happens to be the material witnesses, I am of the considered view that her deposition cannot be treated as trustworthy and Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                        -:: Page 7 of 15 ::-
                                                  -:: 8 ::-



reliable regarding the commission of offences under sections 506 and 376 of the IPC. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:

"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."

18. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.

19. Consequently, no inference can be drawn that the accused is guilty of threatening and raping the prosecutrix. There is no material on record to suggest that the prosecutrix was ever threatened and raped by the accused. No case is made out against the accused as there is no incriminating evidence against him regarding the commission of offences under sections 506 and 376 of the IPC.

20. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the prosecutrix has herself claimed that the accused has not committed any offences under sections 506 and 376 of the IPC. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.

Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                        -:: Page 8 of 15 ::-
                                                  -:: 9 ::-




21. From the above discussion, it is clear that the evidence of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish threat and rape by the accused. The evidence of the prosecutrix makes it highly improbable that such an incident ever took place. The prosecutrix has completely absolved the accused by deposing that never threatened her nor raped her at any point of time.

22. However, in view of the plea of guilt of the accused regarding the commission of offences under sections 509, 354 and 354D of the IPC, it becomes clear that on 13.09.2013 at about 8.00 p.m at unknown place, the accused intended to insult the modesty of the prosecutrix uttered abusive words to her; for the last ten days prior to 13.09.2013 he had been continuously following prosecutrix and contacted her to foster personal interaction repeatedly despite a clear indication of disinterest by her and thereby committed the offence of stalking; he outraged the modesty of prosecutrix by misbehaving/teasing and holding her hand.

23. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to successfully bring home the charge against the accused Mr. Tonny regarding the commission of offences punishable under sections 509, 354 and 354D IPC. The prosecution has failed to bring home the charge against the accused Mr. Tonny regarding the commission of offence punishable un- der sections 506 and 376 of the IPC.

Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                       -:: Page 9 of 15 ::-
                                                 -:: 10 ::-



24. Accordingly, the accused, Mr. Tonny, is hereby convicted for having committed offences punishable under sections 509, 354 and 354 D IPC and is hereby acquitted for the offences under sections 506 and 376 of the IPC.

25. Let him be heard of the point of sentence.

Announced in the open Court on (NIVEDITA ANIL SHARMA) this 01st day of February, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

************************************************************ * Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                                       -:: Page 10 of 15 ::-
                                                 -:: 11 ::-



           IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
                   ADDITIONAL SESSIONS JUDGE
                 (SPECIAL FAST TRACK COURT)-01,
                 WEST, TIS HAZARI COURTS, DELHI




Sessions Case Number                                                   : 160 of 2013.
Unique Case ID Number                                        : 02401R0593722013.


State versus Mr.Tonny
Son of Mr.Attar Singh

Resident of WZ-339, 80 Yards, Harijan Colony Tilak Nagar, Delhi.

First Information Report Number : 458/2013.

Police Station Tilak Nagar.

Under sections 354/376/506/509 of the Indian Penal Code.

Date of filing of the charge sheet before : 20.11.2013. the Court of the Metropolitan Magistrate Date of receipt of file in this Court : 17.12.2013.

{ASJ (SFTC)-01, West, THC, Delhi}
Arguments concluded on                                                 : 01.02.2014.
Date of judgment                                                       : 01.02.2014.


Appearances: Ms.Neelam Narang, Additional Public Prosecutor for the State.

Convict is in judicial custody.

Mr.Dwarka Sawale, counsel for the convict.

Ms.Shubra Mendiratta and Ms.Poonam Sharma, counsel for Delhi Commission for Women.

*********************************************************** Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                                    -:: Page 11 of 15 ::-
                                                 -:: 12 ::-




ORDER ON SENTENCE


1. In pursuance of judgment dated 01.02.2014 as passed by this Court convicting the accused namely Mr. Tonny for offences punishable under sections 509, 354 and 354 D of the Indian Penal Code (hereinafter referred to as the IPC) and acquitting him for the offences under sections 506 and 376 of the IPC, I have heard the Additional Public Prosecutor for the State and the counsel for the convict as well as the convict on the point of quantum of sentence to be awarded to the convict and also perused the case record.

2. The Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that he does not deserve any leniency keeping in view the offence committed by him.

3. The convict and his counsel, on the other hand, have requested for a lenient view to be taken against him as convict had himself pleaded guilty and admitting that he had committed the offences under sections 509, 354 and 354 D of the IPC. He is aged 25 years and is the sole bread winner of his family comprising of his aged parents. He was working as a labourer prior to his arrest. He is in custody w.e.f. 14.09.2013. He is a first offender and has never committed any offence earlier. It is also submitted that he shall not Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                          -:: Page 12 of 15 ::-
                                                 -:: 13 ::-



commit any offence in future.


4. Considering the aforesaid submissions from both the sides, the family circumstances of the convict and perusing the case record, I consider it proper to award a substantive sentence upon the convict. He should not be released on probation nor only fine should be imposed upon him. He has subjected the prosecutrix to unwanted physical contact, outraged her modesty and stalked her. However, as the prosecutrix has deposed that "I want that the accused should be given an opportunity to reform himself and a lenient view should be taken against him.", I am inclined not to impose the maximum sentence upon him.

5. Keeping in view the abominable and repulsive act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path.

6. Therefore, considering these aggravating facts, I hereby sentence Mr. Tonny, the convict as follows:

for offence under section 509 of the IPC to rigorous imprisonment for one year and a fine in the sum of Rs.1,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of two months.

for offence under section 354 of the IPC to rigorous imprisonment Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                       -:: Page 13 of 15 ::-
                                                 -:: 14 ::-



for one year and a fine in the sum of Rs.2,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of six months.

for offence under section 354D of the IPC to rigorous imprisonment for one year and a fine in the sum of Rs.2,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of six months.

7. The sentences shall run concurrently. Benefit of section 428 of the Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules. The convict is in judicial custody w.e.f. 14.09.2013. He is sent to judicial custody for serving the remaining sentence. The fine has been deposited by the convict vide receipt number 000991406 dated 01.02.2014.

8. A copy of the judgment dated 01.02.2014 and a copy of the or- der on sentence dated 01.02.2014, duly attested, besides the complete set of copy of the relevant case record, in compliance of directions of the High Court, be given to the convict, namely, Mr.Tonny, free of cost immediately.

9. A copy of the judgment dated 01.02.2014 and a copy of the order on sentence dated 01.02.2014 also be given to the Additional Public Prose- cutor, as requested.

Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                        -:: Page 14 of 15 ::-
                                                 -:: 15 ::-




10. After completion of the formalities and expiry of the period of limitation, the ahlmad is directed to consign the file to the record room.

Announced in the open Court on (NIVEDITA ANIL SHARMA) this 01st day of February, 2014. Additional Sessions Judge, (Special Fast Track Court)-01, West, Tis Hazari Courts, Delhi.

Sessions Case Number : 160 of 2013 Unique Case ID Number : 02401R0593722013 FIR No. 458/2013, Police Station Tilak Nagar Under sections 354/376/509/506 of the Indian Penal Code.

State versus Mr. Tonny                                                     -:: Page 15 of 15 ::-