Delhi District Court
Vijay Dhall vs State on 11 October, 2018
IN THE COURT OF SHRI SANJEEV KUMARII,
ADDITIONAL SESSIONS JUDGE5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 375 /2017
IN THE MATTER OF:
Vijay Dhall
S/o Shri Kundan Lal Dhall,
R/o E86, F.F. G.K. Enclave1,
New Delhi .........Appellant
Versus
State ........Respondent
Instituted on : 22.09.2017
Reserved on : 23.08.2018
Pronounced on : 11.10.2018
JUDGMENT
This appeal has been preferred under Section 374 (3) of the Code of Criminal Procedure, 1973 (in short 'Code') as the appellant convict is aggrieved by the impugned judgment of conviction dated 25.07.2017 and order on sentence dated 24.08.2017 passed by the CA No. 375/2017 Vijay Dhall v. State Page 1 of 10 learned Metropolitan Magistrate, SouthEast District, Saket Courts, New Delhi in First Information Report (FIR) No. 576/2014, Police Station Greater Kailash1, New Delhi under Section 506 and 509 of the Indian Penal Code (hereinafter referred to as the "IPC"), titled as "State v. Vijay Dhall" whereby appellantaccused was convicted for the offences under Sections 506 and 509 IPC and was sentenced of fine of Rs.2,500/ for each of the offence.
2. FIR was registered on the statement of the victim Sangeeta Vasudeva that on 22.12.2014 at around 03:00 pm, victim was standing on her drive way, then accused (appellant) came there and used abusive languages and obscene gestures towards her. He used to abusive languages in front of her younger students as they were passing through. He said in rude manner that no one can pass through also he threatened her to slap and that she will face dire consequences. She was very much scared of that man. On this statement of informant/victim, present FIR No.576/2014 under Sections 506/509 IPC was registered at police station Greater Kailash1.
3. After investigation, police report/chargesheet was filed against the appellant for the offence punishable under Sections 506 and 509 IPC. By order dated 14.12.2015, charge for the offences under Sections 506 and 509 IPC was framed against the appellant.
4. The prosecution/respondent examined two witnesses, namely, PW1 Mrs. Sangeeta Vasudeva and PW2 Sub Inspector Jagbir Singh.
CA No. 375/2017 Vijay Dhall v. State Page 2 of 10In statement of accused under section 313 of the Code appellant stated that there is a dispute with respect to parking with the complainant because of which he had been falsely implicated.
5. Mr. P. K. Saxena, learned counsel appearing for the appellant has submitted that it is not mentioned in the FIR as to what were the abusive languages and gestures. Victim admitted in her cross examination that there was a dispute between her and appellant over parking of his vehicle. Investigating Officer (PW2) also categorically testified that the dispute is related to the car parking. There are contradiction in the statement of the victim recording during investigation and trial. There was no intention to insult the modesty of the victim. It is well settled that if two views are possible, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. As per cross examination of PW1, tenant and guard told to PW2 (IO) that no such incident took place. The victim said that call was made at 100 number was Investigating Officer said that no call was made at 100 number. No offence under Section 506 and 509 IPC has been committed by the appellant and there were dispute regarding car parking between the victim and appellant and same has been given criminal colour and therefore, impugned judgment and order of sentence may be set aside.
6. The learned Additional Public Prosecutor has opposed the appeal stating that the case of the prosecution has been fully supported CA No. 375/2017 Vijay Dhall v. State Page 3 of 10 by the victim and there are no material contradictions.
7. Trial Court Record shows that genuineness of documents that is copy of FIR and statement under Section 164 of the Code had been admitted by the accused under section 294 of the Code in presence of his counsel on 06.06.2017.
8. In respect of offence under Section 506 IPC, Hon'ble Delhi High Court in case Kanshi Ram v. State, 2001 (1) Crimes 20, observed/held:
"10. So far as the offence under Section 506 Indian Penal Code is concerned, the complainant Israr Ahmed stated in his case diary statement that at the relevant time the petitioner had exhorted his security personnel to thrash the journalists. According to Israr Ahmed, the exact words used by the petitioner were "Maro Salon Ko". Strangely enough, Israr Ahmed has nowhere stated in his statement that the alleged threat had caused an alarm to him. On the contrary the circumstances of the case clearly go to show that even after the alleged threat, the complainant or other media persons did not retrace their steps. It is well settled that mere threat is no offence. That CA No. 375/2017 Vijay Dhall v. State Page 4 of 10 being so the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 Indian Penal Code. Consequently, no charge under Section 506 Indian Penal Code can be framed against the petitioner on the basis of the said evidence."
9. In Surinder Suri v. State of Haryana & Ors., 1996 (2) RCR (Criminal) 701, Hon'ble Punjab & Haryana High Court quashed the FIR because the allegations made at the time of incident by petitioners/accused were not with an intent to cause alarm to the complainant.
10. In Satnam Singh v. State of Punjab, (Crl. Misc. No. M3141 of 2011), Hon'ble Punjab & Haryana High Court had held that gist of the offence under Section 506 IPC is that the threat is intended to have upon the mind of the person threatened and mere vague allegations will not satisfy the essential ingredient of Section 506 IPC.
11. In Anil Mehra v. Ajmer Singh, 1991 (1) RCR (Criminal) 699, Hon'ble Punjab & Haryana High Court quashed the criminal proceedings on the ground that empty threats, without mens rea to cause injury would not amount an offence under Section 506 IPC.
12. In Meen Raj v. State, represented though the Inspector of Police CA No. 375/2017 Vijay Dhall v. State Page 5 of 10 [Crl.O.P. (MD) No. 10951 of 2012], Hon'ble Madras High Court held/observed the defecto complainant's daughter arrayed as one of the witnesses and the statement recorded under Section 161 of the Code, revealed that the petitioner made a life threat to the second respondent and his daughter; that it will not constitute any offence against the petitioner because the empty threats does not prima facie mean that the case under Section 506 IPC is made out against the petitioner.
13. In Sarvesh Chaturvedi & Anr. v. State NCT of Delhi & Anr., (CRL.REV. P. 31/2013) decided on 10.02.2015 by Hon'ble Delhi High Court, the accused was acquitted for the offence under Section 506 IPC by the learned Metropolitan Magistrate holding that mere threat does not fall within the definition of criminal intimidation unless it is proved that the threat given by the accused caused an alarm to the witness and appeal filed against the said order was also dismissed by the learned Court of Session. Revision filed against the said orders was also dismissed by Hon'ble Delhi High Court.
14. Hence, for the offence of criminal intimidation punishable under Section 506 IPC, the threat should be a real one and same should not be empty. Further, it has to be shown that threats were made with an intent to cause alarm or that an alarm was caused to the complainant.
15. In the present case, allegations for offence of criminal CA No. 375/2017 Vijay Dhall v. State Page 6 of 10 intimidation punishable under Section 506 IPC against the appellant in FIR was that he threatened her to slap and that she will face with dire consequences. In statement under Section 164 of the Code, she stated in this regard while going from there that he would see her and threatened that she can do nothing against him and he would continue to behave like that. Now, I come to deposition during trial wherein she testified in this regard that accused started abusing her and assaulted her by showing slap towards her; the abusive language used by accused was "bedi aai houn tuition padhane jhoparpati se aai houn, may tujhe dekh lunga". From these three statements of victim, it is apparent that she has given different versions in these statements. In FIR, she alleged that he threatened her to slap and face dire consequences; in statement under Section 164 of the Code, she stated that he would see her and she threatened that she can do nothing against him and he would continue to behave like that; during trial she stated that he abused stating that "bedi aai houn tuition padhane jhoparpati se aai houn, may tujhe dekh lunga". She stated in FIR about threat of dire consequences but this threat do not find mention in her statement under Section 164 of the Code and statement given during trial. Further, these threats can not be said to have been given with intent to cause an alarm. There is no case of prosecution that appellant was having any weapon or something like that to execute the threat. She has nowhere stated in her statement that alleged threat had caused an alarm to her. The alleged threats can be said to be empty CA No. 375/2017 Vijay Dhall v. State Page 7 of 10 threats and not real one. That being so the threat to have been given by the appellant does not fall within the mischief for Section 506 IPC
16. Now I come to offence under Section 509 IPC. Victim in respect of offence is Sangeeta Vasudeva as per case of the prosecution. In respect of this offence also, all the three statements of victim are not consistent. In FIR, she alleged that she was standing on her drive way, then accused came there and used abusive language in front of her younger students and obscene gestures towards her. She has not stated in her statement under Section 164 of the Code that accused made obscene gestures towards her. She stated in said statement that accused started abusing her. She has also stated in said statement under Section 164 of the Code regarding threat. There is no allegation in respect of offence under Section 509 IPC in her statement recorded under Section 164 of the Code. She stated during trial that he (accused) started abusing her and assaulted her by showing slap towards her; the abusive language used by accused was "bedi aai houn tuition padhane jhoparpati se aai houn, may tujhe dekh lunga". From the said testimony, it is difficult to say that accused, intending to insult the modesty of victim, uttered those words. For the offence under Section 509 IPC, words should be uttered with intend to insult of modesty of any women and not with intend to insult any women. To my mind, from the uttering said words, it cannot be said that accused has committed offence under Section 509 IPC.
CA No. 375/2017 Vijay Dhall v. State Page 8 of 1017. Further, PW1 has deposed in her cross examination that four students were present in her house and first incident took place with one of her student namely Rahul with the accused but that incident did not take place in her presence. She further stated that however, Rahul came and narrated the incident to her; there were three more children namely Ajay and Akshita who were witnessed the incident. None of the four students have been examined by the prosecution to corroborate the testimony of PW1. It is admitted by the PW1 in her cross examination that there was dispute between her and accused about the parking of his vehicle on the ground floor and same had been going on since 2008; that accused parked his vehicle near the gate and he always parked his car near the gate; that there was a dispute pending between the accused and the original owner since 1993 for the same parking at the same place near the gate; that there are three gates on the ground floor to enter the premises; that on one of the gates, the car of the accused is parked; that the other two gates are used and can be used to enter her premises. From these testimonies of victim, it appears that there are dispute between the accused and her for parking space/place. The incident is also alleged to have been happened due to said dispute of parking place. Accused has also taken defence in his statement under Section 313 of the Code that he is innocent and have nothing to do with the present case; that he is retired from Air Force and he knows how to respect a woman; that there is a dispute with respect to parking with the victim because of CA No. 375/2017 Vijay Dhall v. State Page 9 of 10 which he has been falsely implicated in the present case. Investigating Officer (PW2) has testified in his cross examination that the guard told him that he had no information about the said incident and nor any incident has taken place as per his knowledge. PW2 further testified that a tenant also informed her that no incident had been taken place in his presence. He further testified that no complaint to PCR was made by the victim/complainant about the incident and the complaint was received at the police station directly from the complainant.
18. In view of above discussion, appeal is allowed and impugned judgment of conviction and order on sentence are set aside.
Announced in the open (Sanjeev KumarII)
court on 11.10.2018 Additional Sessions Judge05,
South East, Saket Courts, New Delhi
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