Delhi District Court
State vs Ashok Sharma on 29 March, 2023
IN THE COURT OF SH. SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020162922016
State Vs Ashok Sharma
FIR No. : 707/2015
U/s : 509 IPC
PS : Dwarka North
JUDGMENT
a) Sl. No. of the case : 434109/2016
b) Unique Case ID No. : DLSW020162922016
c) The date of commission of : 07.08.2015.
the offence
d) Name of the complainant : Sarika Kapoor w/o Lt. Major Shiv Kapoor
R/o Flat no. D-265, Vijayveer Awas
Sector 18A, Dwarka North, Delhi.
e) Name, parentage & address : Ashok Sharma s/o Sh. D. S. Sharma
of accused R/o Flat no. 288, Vijayveer Awas
Sector 18A, Dwarka, New Delhi.
f) Offences complained of : 509 IPC
g) The plea of the accused : Pleaded not guilty
FIR No. 707/2015 State Vs. Ashok Sharma Page No.1 of 23
h) Final Judgment : Acquitted
i) Date of institution of case : 14.12.2016.
k) Date of Judgment : 29.03.2023.
BRIEF FACTS AND REASONS FOR DECISION:-
A. FACTUAL MATRIX:-
1. Briefly stated, the case of the prosecution is that on 07.08.2015 at about 04:00-4:15pm, when a meeting of residents' welfare association was going on at Vijay Veer Awas, Sector 18-A, Dwarka, New Delhi the accused with intention to insult the modesty of complainant Sarika Kapoor, Kamla Chikara, Bhawana Dwivedi, Anju Rawat and Asha Juyal had uttered abusive words to the complainants in a filthy language and started to quarrel with them. As such, it is alleged that the accused committed the offence punishable under Section 509 of the Indian Penal Code, 1860 (hereinafter, "IPC").
B. INVESTIGATION AND APPEARANCE OF ACCUSED:-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial vide order dated 14.12.2016.
3. On his appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against accused, notice under section 509 IPC was served upon the accused. The accused pleaded not guilty and claimed trial.
FIR No. 707/2015 State Vs. Ashok Sharma Page No.2 of 23 C. PROSECUTION EVIDENCE:-
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
Oral Evidence i. PW-1, Complainant Ms. Sarika Kapoor ii. PW-2, Complainant Ms. Bhawna Dwivedi iii. PW-3, Complainant Ms. Kamla Chikara iv. PW-4, Complainant Ms. Anju Rawat v. PW-5, Complainant Ms. Asha Juyal vi. PW-6, Ms. Swapna Roy, resident of the society and eye-witness to the incident vii. PW-7, Mr. Anil Kumar, shop owner in the society viii. PW-8, Inspector Ashok, IO of the case Documentary Evidence:
i. FIR number 707/2015 dated 25.08.2015
ii. Certificate under Section 65B of Indian Evidence Act
iii. Statement of prosecutrix under Section 164 CrPC recorded by
Ld. MM
5. PW-1 Ms. Sarika Kapoor deposed that in the morning of 07.08.2015 MCD officials visited the society and demolished one of the said shop of the society. Deposing about the incident she stated that at about 4:00-
4:15 PM, a meeting was going on of the resident welfare association when they received a call from the supervisor Bablu that some residents were quarreling near gate no. 2, shops of the society, with the shopkeepers of the society. She further deposed that the entire RWA went at the spot and inquired about the incident. She further deposed that she was told by the shopkeepers that complaint because of which the demolition was done in the morning was made by few residents of the society and the said fact was told to the FIR No. 707/2015 State Vs. Ashok Sharma Page No.3 of 23 shopkeepers by the MCD officials themselves. She further deposed that one Mr. Pathak, Mr. Roy and other residents were involved in the said complaint against the shopkeepers whereupon the RWA tried to persuade the shopkeepers and the residents.
Deposing about the incident she testified that in the meanwhile, accused Ashok Sharma and his wife came inside the society in their car and the accused spoke in front of Mrs. Kamla Chikara that "main apne bete ki kasam kah ke kehta hu maine koi complaint nhi ki hai, mai yaha pe kama ke kahta or yaha per kuch auratein hai jo muft ka kahti. Yaha pe esi hi haramzadi auratein rehti hai." She further deposed that she and other residents objected to the said language used by the accused. She stated that the accused used filthy and abusive language in the presence of many residents. She further deposed that thereupon she along-with other complainants gave a written complaint to the Dwarka South, exhibited as Ex.PW1/A. Accused was correctly identified by the witness in the court. She further deposed that she was also called by the IO to Dwarka Court where her statement u/s 161 CrPC was recorded.
In her cross-examination by the Ld. defence counsel PW-1 deposed that she is a law graduate and is residing in the society since 2012 and that she was vice president of the RWA in 2015. She further stated that there were total three shops in the society which are not legalized. She further stated that she had not initiated any complaint against the said shops rather had taken steps to legalise them through DDA. PW-1 was confronted with one intimation letter marked as Mark X addressed to the president RWA and question was asked to her upon which she stated that it is correct that the said letter bears her signatures at point A. PW-1 was further asked regarding the FIR No. 707/2015 State Vs. Ashok Sharma Page No.4 of 23 termination of accused Ashok Sharma from the services of RWA being a defaulter on maintenance payment like several others.
PW-1 in her cross-examination deposed that she did not know the names of the team which came to demolish the shops and also stated that she as inside the society when that was done. PW-1 stated that Smt. Uma Pathak, Smt. Swapana Roy, Mr. S.P Pathak and Mrs Urmila were also present at the spot at the time of alleged incident. She further stated that she cannot tell whether there were CCTV cameras installed in the society on the day of incident. She denied the suggestion that there were CCTV camera at the time of alleged incident and since no such incident ever took place so she was concealing the fact as to when the cameras were installed. PW-1 further accepted as correct the suggestion that a DD No.70B dated 12.08.2017 u/s 107/150 CrPC was made against her and the other members of the society and further stated that the accused is the first party in those proceedings. She further denied the suggestion that the said kalandra was made when RWA lead by her stopped accused Ashok Sharma from entering the society. She further stated that she is not aware whether any complaint vide DD No. 58B dated 05.06.2017 was made to the DCP, SW by the accused in this regard.
6. PW-2 Ms. Bhawna Dwivedi deposed along the same lines as that of PW-1 with regard to the facts qua the MCD team which came to demolish the illegal shops in the society. With regard to the incident in question she deposed that they received a call at about 4:00 PM from supervisor Bablu that a some persons are quarreling near the Gate no. 2 of the society whereupon she alongwith other ladies of RWA reached the spot and saw Mr. S.P Pathak, Mrs. Uma Pathak and Mrs. Sapna Roy were arguing with the shopkeepers.
FIR No. 707/2015 State Vs. Ashok Sharma Page No.5 of 23 She further deposed that in the meanwhile, Major Ashok Sharma and his wife Manisha also reached the spot and they de-boarded their car whereafter Ashok Sharma first abused and stated "yaha ki sabhi Aurto ko muft ka khaney ki adat hai or hamari tax se unki pension aati" and also stated that the accused hurled that "Esi haramjadi aurtey yaha pe rehti hai". She further deposed that PW-1 Ms. Sarika was also present at the spot and she said to call at 100 number and also objected to the language used by accused Ashok Sharma. She further deposed that the accused Ashok reached to Mrs. Chhikara and asked her as to why his name is being dragged in the entire incident as he had nothing to do with the alleged demolition incident. She further deposed that Mrs. Chikara stated to the accused that no one had taken his name in the incident. Thereafter a call was made at 100 number and a written complaint exhibit as Ex. PW-1/A was also made along-with signatures of other aggrieved persons whereupon the police reached the spot and inquired about the facts from PW-2 and recorded her statement u/s 161 CrPC. The accused was correctly identified by the witness in the court.
In her cross-examination by Ld. defence counsel PW-2 stated that she is a law graduate and was the president of RWA of the society in the year 2015. She further deposed along the same lines as that of PW-1 regarding the nature of shops and that she had not taken any steps to legalize the said shops, even though she was an office bearer. PW-2 was also confronted with the termination letter with which PW-1 was confronted and she accepted as correct the suggestion that same was given to the accused without any show-cause notice. Furthermore, the witness was also asked that if she received the reply of accused to the said letter to which she stated that she does not remember the same. Thereafter, the witness was put questions FIR No. 707/2015 State Vs. Ashok Sharma Page No.6 of 23 showing previous sour relations between the parties. PW-2 further deposed that in august 2015, the CCTV cameras were installed in the society premises and she further stated that she did not remember giving any CCTV footage to the police. She further denied the suggestion that no such footage was given as no incident had ever happened. Furthermore, PW-2 accepted as correct the suggestion that a DD No. 70B dated 12.08.2017 u/s 107/150 CrPC was made against her and the other members of the society. She denied the suggestion that the said kalandra was made when RWA leaded by her stopped accused Ashok Sharma to enter in the society. She further stated that she does not know if any complaint vide DD No. 58B dated 05.06.2017 was made to the DCP, South West by the accused in this regard.
7. PW-3 Mrs. Kamla Chikara, deposed that On 07.08.2015 at about 4-4.15 PM she came to know that some quarrel had taken place at gate no. 2 of the society and she was Called at the gate, whereupon she went there and stood quietly. She further deposed that many ladies were present at the spot at that time and in the meanwhile Major Ashok Sharma came to her and told her with folded hand that "Mrs. Chikkara main apne bate ki kasam khata hoon ki maine in dukaano ki shikayat nahi ki". She further deposed that upon being asked by her as to who was taking his name as a person who had made a complaint about the shops, he answered that "kuch haramzadi ladkiyan, meri maid bata rahi thi ki sir apka naam le rahi hain". She further deposed that she was shocked after hearing the statement and further stated that in the meanwhile Mrs. Sarika and Mrs. Anju told the accused that "aap kya bol rahe ho". She further deposed that thereafter all the ladies started quarreling FIR No. 707/2015 State Vs. Ashok Sharma Page No.7 of 23 and accused left the spot along-with his wife. PW-3 correctly identified the accused in the court.
In her cross-examination by Ld. defence counsel PW-3 deposed that in the year 2013 she was a member of RWA of the society. She further deposed that she does not remember the exact tenure during which she stayed as a member in RWA. She further deposed that she was a member of RWA in the year 2015. She further deposed that there were total 3 shops near gate no. 2 and further deposed that she did not know whether the said shops were legal or not. She further deposed that she is not aware about her role in RWA, however she used to give advice to the other members. She further deposed that she had not advised about the shops to the other members of the RWA for their legalization. She further deposed that in the month of August 2015 CCTV cameras were installed in their society. She further deposed that she did not remember whether she told about the CCTV camera to the police and also stated that she does not remember whether she had seen the CCTV footage of the incident.
8. PW-4 Ms. Anju Rawat deposed before the court that on 07.08.2015, a few shops were demolished by MCD inside their society and after entire episode of demolition, she reached back home. She further deposed that at about 04-04:15PM, she was present at her house, when she received the call from the society supervisor namely Bablu that commotion is taking place at gate no.2 of the society between the shopkeepers and few residents of the society. She further deposed that thereafter, she along-with other RWA members reached at the spot and tried to pacify the both the parties. She further deposed that at that time major Ashok Sharma along-with FIR No. 707/2015 State Vs. Ashok Sharma Page No.8 of 23 his wife reached at the spot and started shouting and approached Mrs. Chikara and said that "mera beta kargil me hai aur main uski kasam khata hoon ki ye dukane maine nahi turwai, main kama kar khata hoo aur yanha ki kuchh aurten free ki khati hain, yanha par aisi hi haramzadi auraten rahti hain." She further deposed that one Sarika Kapoor objected the accused as to how he can use such kind of language whereupon his wife pulled the arm of the accused and said to him that "aap kinse baat kar rahi hain." Thereafter, accused Ashok Kumat and his wife left the spot in their car. She further deposed that thereafter, th complainants made a call at 100 number and police reached the spot and recorded her statement. Accused Ashok Sharma was correctly identified by the witness in the court.
In her cross-examination by Ld. defence counsel PW-4 deposed that she is a diploma holder in production engineering and further deposed that she was a general secretary in RWA of above society in the year 2015 and at that time there were approximately three shops situated near the gate no.2. She denied the suggestion that the said shops were illegal. She further deposed that the RWA was having a SDMC card for the grocery shop situated at gate no.2 and the relevant agreement of the mother dairy was handed over by the previous committee to the RWA in which she was general seretary. She further deposed that she does not remember whether the RWA made any complaint against the official of MCD for demolition inside the society. She further denied the suggestion that that no such complaint was ever made by her against the MCD. She further deposed that she does not remember whether CCTV Cameras were installed - in the society or not in the year 2015. She further deposed that she does not remember whether she handed over any CCTV footage to the police at any point of time. She further denied FIR No. 707/2015 State Vs. Ashok Sharma Page No.9 of 23 the suggestion that CCTV footage was not handed over to the police as no such incident had ever taken place. She accepted as correct the suggestion that kalandra vide DD No.70B dated 12.08.2017 under Section 107/150 CrPC was made against her and other members of the society. She also denied the suggestion that the said kalandra was made when RWA which was headed by her and other persons had stopped accused Ashok Sharma to enter in the society. She further deposed that she is not aware whether there was any complaint vide DD No.58B dated 05.06.2017 and DD No.32B dated 30.08.2015 were filed against the RWA by the accused Ashok Sharma. She further accepted as correct the suggestion that one Kanta Devi had also filed a case against her, however voluntarily said that the same is false. It is further deposed by the PW regarding other criminal cases pending between them.
9. PW-5 Smt. Asha Juyal deposed that in the month of August 2015, a shop (grocery and vegetables) at gate no.2, of the society namely Veer Awas Colony was demolished by MCD officials. She further deposed that in the evening of one day in the month of August at about 04:00 pm, officials/members of Residence Welfare Association (RWA) Team called her near the shop and the team of RWA was talking to each other and Major Sharma came there at the same time and told us that he did not demolish the above-said shop and he also said that he sworn that he had no role in making any complaint with regard to my shop and its demolition. She further deposed that the accused also told the members of RWA that his maid (who cooks the food) told him that he was being blamed for the demolition of the shop and his maid also told him that "kuchh haramjadi auraten aisi hai" and that they were blaming Major Sharma for the demolition. She further deposed that FIR No. 707/2015 State Vs. Ashok Sharma Page No.10 of 23 thereafter the accused went away from the said place and IO recorded her statement u/s 161 CrPC, she further deposed that she is also a complainant in the instant case. Accused was correctly identified by the PW in the court.
In her cross-examination PW-5 deposed that she is not the registered owner of the above-said shop. She further deposed that she was not on any executive post in RWA in the month of August 2015. She further deposed that there were 2-3 shops in the society and stated that she was not aware if the same were legal or not. She further accepted as correct the suggestion that accused did not use any derogatory language.
10. Thereafter, one Ms. Swapna Roy was examined as PW-6 and one Anil Kumar was examined as PW-7, however both the witnesses had turned hostile and despite of extensive cross-examination by Ld. APP for the State none of them deposed about any incriminating material against the accused.
11. PW-8 Inspector Ashok deposed that on 08.08.2015 when he was posted at PS Dwarka North as SI, he received a written complaint in the present case from complainant Sarika Kapoor and the said complaint was also signed by many other members of the society, upon which the instant FIR was registered. He further deposed that he got the statement of the complainant recorded u/s 164 CrPC and also recorded the statement of the witnesses. PW- 8 further deposed that he interrogated the accused Ashok Sharma in the present case. He further deposed that he went to the spot and met the members of the society and joined them in the investigation. He further FIR No. 707/2015 State Vs. Ashok Sharma Page No.11 of 23 deposed that he filed the charge-sheet in the court. The witness correctly identified the accused in the court.
In his cross-examination by Ld. defence counsel PW-8 deposed that he was the chowki Incharge on 08.08.2015 and further stated that he does not remember date and time when he went to the society. He further deposed that he does not know whether any 100 number call was there with regard to the present incident. He further deposed that Bablu who was the Supervisor of the society did not meet him when he was contacted by the IO and despite of the efforts he was not found in the society. PW-8 denied the suggestion that he did not record the statement of Bablu Supervisor as he was not supporting the case of the present complainant. PW-8 further deposed that he had not recorded the statement of guards of the society as none of them came forward with it. PW-8 further denied the suggestion that he had intentionally not recorded the statement of guards as they were not supporting the case of the complainant. He further deposed that he did not remember whether any MCD officer was present there at the time he reached there. He further deposed that he was not aware about any request of any person with regard to police protection at the time when the demolition took place in the society. He accepted as correct the suggestion that he was the Divisional Officer of the area in which the society was located. He further deposed that he did not remember whether any CCTV camera was available at the spot or not and further deposed that he does not remember whether he had inquired from the society office bearers with regard to the CCTV Camera. PW-8 denied the suggestion that he did not inquire about CCTV Camera as no such alleged incident had happened. PW-8 further deposed that he had not prepared any site plan and further deposed that he had recorded the statement of witnesses FIR No. 707/2015 State Vs. Ashok Sharma Page No.12 of 23 u/s 161 CrPC at the chowki. He further deposed that he had not inquired about any other dispute between the society members other than the present case. PW-8 further denied the suggestion that he had carried out all the proceedings while sitting at the police chowki.
12. As the accused vide his statement dated 20.03.2019 admitted the documents namely (i)FIR number 707/2015 dated 25.08.2015, (ii) Certificate under Section 65B of Indian Evidence Act, and (iii) Statement of prosecutrix under Section 164 CrPC recorded by Ld. MM, accordingly witnesses at serial number 13 and 14 were dropped from the list of witnesses.
13. Thereafter, on oral submissions of Ld. APP for the State prosecution evidence was closed on 22.02.2023 and the statement of accused was recorded.
D. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE:-
14. Before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused denied all allegations and stated that he wishes to examine himself in his defense.
E. DEFENSE EVIDENCE:-
15. The accused led the following oral evidence in his defense:
16. DW-1 Ms. Urmila Ghildiyal deposed that she is a resident of Veer Aawas Yojana society since year 2006. She further submitted that in the FIR No. 707/2015 State Vs. Ashok Sharma Page No.13 of 23 month of August 2015 on one day at about 4.00 pm while she was coming from her office she saw that huge crowd had gathered at the society gate. She further deposed that she parked her car and went to the gate and saw that one vegetable shop which was already demolished by the agencies. She further stated that there were talks going on that the said action has been taken on the complaint of three society members namely Mrs. Roy, Mr. Pathak and Major Ashok Sharma (accused). She further deposed that in the meanwhile, Ashok Sharma reached at the spot along with his wife and he went to Mrs. Chikara who was already present at the spot and said to her with folded hand that he has not made any complaint with regard to the said shop. She further deposed that in the meanwhile, one Mrs. Ajnu Rawat who was already on the spot used some derogatory language against the accused and Army whereupon arguments took place between the members of the society and thereafter she left the spot. She further deposed that later on her statement was recorded by the IO.
In her cross-examination by Ld. APP for the State, DW-1 deposed that she was working at FORC, Shanker Vihar in year 2015 and used to leave her house at 8.00 am and used to get free from my office at 2.303.00 pm. She accepted as correct the suggestion that she is having friendly relations with the accused as a neighbour as the accused used to stay in a flat situated in her block only and she met him many times on the stairs. She further deposed that she had contested elections of RWA in the year 2019. She further deposed that she does not know whether she told to the police that Mrs. Anju Rawat had used abusive words to the accused and defamatory words to the Army. She further deposed that she was not aware of the present FIR at any point of time even when police came and met her FIR No. 707/2015 State Vs. Ashok Sharma Page No.14 of 23 and recorded her statement. DW-1 further stated that she does not remember the exact date of incident.
17. I have heard the Ld. APP for the State and Ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
F. INGREDIENTS OF THE OFFENCE
18. The accused has been charged for the offence under Section 509 of the IPC, which is reproduced hereunder for reference:
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
19. The offence under the section 509 of IPC will be attracted if a person intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman. (see M.M. Haries v. State of Kerala (16.02.2005 - Crl. M.C. No. 9717 of 2002).
20. The legislative object behind section 509 of IPC is that a woman must be protected not only from physical aggressions made in the course of FIR No. 707/2015 State Vs. Ashok Sharma Page No.15 of 23 outraging her modesty, but she should also be shielded from various other acts which do not involve even a touch. In M.M. Haries v. State of Kerala (16.02.2005 - Crl. M.C. No. 9717 of 2002), it was held that: Legislature was quite aware that a woman's modesty can be insulted or outraged in various ways. A mere word, a wink, a touch or even a look would suffice to insult the modesty of a woman. Physical advances may not be necessary in all cases. Everything depends on the intention of the mischief-maker and the manner in which he conveys his intentions. It is evident that legislature intended that any aggression into a woman's modesty whether by any word, deed, touch or look need be curbed and deterred.
21. Therefore, the gravamen of section 509 IPC is the intent to 'insult the modesty' of a woman. It is a settled position of law that there is distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract section 509 IPC, what is required is not merely insulting a woman rather the insult to the modesty of a woman is required to have been done by mere words uttered by the accused. (see Abhijeet J.K. v. State of Kerala, 2020 SCC OnLine Ker 703).
22. However, the term 'modesty' is not defined in IPC. It has been held by Hon'ble Supreme Court of India that the essence of a woman's modesty is her sex, i.e., modesty is a virtue which attaches to a female owing to her sex (see Raju Pandurang Mahale v. State of Maharashtra: (2004) 4 SCC 371). To elaborate further, the following extract from Raju Pandurang has been reproduced hereinafter:
"What constitutes an outrage to female modesty is nowhere defined. The essence of FIR No. 707/2015 State Vs. Ashok Sharma Page No.16 of 23 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 in this section 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 act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word "modesty" is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn.) defines the word "modesty" in relation to a woman as follows: "Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste."...
15. ... From the above dictionary meaning of "modesty" and the interpretation given to that word by this Court in Major Singh case [AIR 1967 SC 63 : 1967 Cri LJ 1] the FIR No. 707/2015 State Vs. Ashok Sharma Page No.17 of 23 ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059].
17. Further, in Rupan Deol Bajaj v. K.P.S. Gill, (1995) 6 SCC 194, it was held that:
Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning.
According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means 'womanly propriety of behavior, 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; shame fast'. Webster's Third new International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency' a regard for FIR No. 707/2015 State Vs. Ashok Sharma Page No.18 of 23 propriety in dress, speech or conduct". In the Oxford English Dictionary (1993 Ed) the meaning of the word 'modesty' is given as "womanly propriety of behavior, 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".
23. Therefore, based on the aforesaid precedents, it is evident that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman, keeping in mind that the essence of a woman's modesty is her sex.
24. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
25. The sum and substance of the allegation made by the complainants in their examination in chief is that when they reached the spot upon complaint of Bablu Supervisor about verbal altercations between some residents and the shopkeepers, they were abused by the accused Ashok Sharma. Now, at this stage it needs to be appreciated that even if the version of the complainants is believed to be true, the very abuse that is uttered by the accused is not against a specific woman or a group of individuals rather it FIR No. 707/2015 State Vs. Ashok Sharma Page No.19 of 23 was stated that "Esi haramjadi aurtey yaha pe rehti hai". At this juncture this court will like to refer to the judgment of Hon'ble Supreme Court in the case of S. Khushboo vs Kanniammal & anr (decided on 28.04.2010) wherein it has been held by the Hon'ble Apex court that:
"Section 509 IPC criminalises a `word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act."
A bare reading of the statements given by the complainants even if take on face value shows that the accused had allegedly stated a generic statement against non-identifiable group of women.
26. It further needs to be appreciated that the prosecution has failed to bring on record Bablu, the security supervisor of the society who was the first person to inform the RWA abut an altercation between the society members and the shopkeepers. It is upon the information of the said Bablu that the complainants reached at the spot and thereafter an altercation ensued whereupon the accused committed the said act against them. However, the IO has never joined the said person in the investigation and in his cross- examination has also clearly deposed that he was nowhere to be found at the time of the investigation. Furthermore, there are several contradictions in the testimonies of the complainants and they do not inspire the confidence of this FIR No. 707/2015 State Vs. Ashok Sharma Page No.20 of 23 court.
27. PW-1 in her testimony deposed that the accused came to Mrs. Kamla Chikara and made the abusive statement in front of her. However, Ms Kamla Chikara when she stepped into the witness box deposed that the accused stated to her that "kuch haramzadi ladkiyan, meri maid bata rahi thi ki sir apka naam le rahi hain". A perusal of the said statement in deposition by PW-3 Mrs. Kamla reveals two things firstly that the statement was not given or hurled to a specific group of women and secondly it reveals that the said statement was told to the accused by his maid. Thus, it appears from a bare reading of the said statement that it was uttered by the accused's maid which he uttered in front of PW-3.
28. Furthermore, it also needs to be appreciated that in these times of technological advancement, when the camera and CCTV footage are eyes and ears of the investigating agencies no CCTV footage has been brought forth by the complainants/ prosecution regarding the incident. Furthermore, there is also an inconsistency in the statements of the PWs regarding the CCTV cameras and whether the same were installed in the society premises when the incident occurred or not.
29. The PW-8/ IO of the case had clearly stated in his cross- examination that he had not prepared the site plan in this case. Furthermore, he also stated that he had no information as to the CCTV footage of the society. What is further needed to be appreciated is that out of the complainants who filed the initial complaint against the accused two had turned hostile. Furthermore, despite the incident being of broad daylight no one else than the complainants have been produced by the IO/ prosecution as FIR No. 707/2015 State Vs. Ashok Sharma Page No.21 of 23 witness of the incident. The entire case rests on the mere testimonies of the complainants which is also mired with inconsistencies. I am of the opinion that in order to bring home the charge, the prosecution was required to prove the nature of abuses or filthy language which was allegedly used towards the complainant by the accused. In absence of the same, there is no means to ascertain whether the alleged abuses were mere insults or insults to the modesty of the complainant.
30. The term "verbal abuse" is defined in Black's Law Dictionary (9th edn.) in the following manner: Verbal abuse. Emotional abuse inflicted by one person on another by means of words, esp. spoken words, in a way that causes distress, fear, or similar emotions. Verbal abuse may include name-calling, insults, threatening gestures, excessive and unfounded criticism, humiliation, and denigration. - Also sometimes termed vulgar abuse. 22. Therefore, while the definition of abusive language/ verbal abuse does include 'insults' within its meaning, it cannot be equated with insult to modesty of a woman. The court cannot presume that the filthy/ abusive language used amounted to insulting the modesty of the complainant and the prosecution was required to prove the same. However, the prosecution has failed to prove/ show/ bring on record the nature/ wording of insults which were hurled towards the complainant. Apart from the allegation of usage of abusive/ filthy language, there is nothing specific on record which points towards the guilt of the accused. As noted above, the essence of a woman's modesty is her sex. The alleged abusive language appears to have been made in the context of a quarrel/ fight and there is no evidence on record that the said language was used with any sexual overtones.
FIR No. 707/2015 State Vs. Ashok Sharma Page No.22 of 23
31. Further, it is pertinent to note that the complainant has deposed in her cross-examination that other society members had gathered at the scene of the incident. However, none of the public witnesses have been examined in the present case. This fact also creates adequate doubts regarding the version of the prosecution.
32. As such, none of the essential ingredients of the offence stands fulfilled in the present case.
G. CONCLUSION:-
33. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under Section 509 IPC beyond reasonable doubt, which the prosecution has failed to do. Resultantly, the accused Ashok Sharma is hereby found not guilty. He is hereby ACQUITTED of the offence under Section 509 IPC.
34. File be consigned to record room after necessary compliance.
Announced in the open court Digitally signed today i.e.29.03.2023. SANKALP by SANKALP KAPOOR KAPOOR Date: 2023.03.29 16:59:38 +0530 (SankalpKapoor) Metropolitan Magistrate-06 South West/Dwarka Court/New Delhi FIR No. 707/2015 State Vs. Ashok Sharma Page No.23 of 23