Delhi District Court
State vs Utkarsh Agnihotri@Sanu on 17 October, 2023
IN THE COURT OF SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020032522021
CNR No. DLSW020032522021
Case No.827/2017
FIR No.596/2020
PS: Dwarka North
U/S:506/509 IPC
State Vs. Utkarsh Agnihotri @ Sanu
JUDGMENT
A. Sl. no. of the case : 827/2021
B. Date of institution :13.01.2021
C. Date of offence :23.09.2020
D. Name of the complainant : Seema Yadav w/o Manoj Kumar Yadav
R/o A-6, Rantakar Apartment,
Sector-4, Dwarka, New Delhi
E. Name of the accused : Utkarsh Agnihortri @ Sanu
S/o Manoj Kumar
R/o A-18, Plot no. 21, Ratnakar
Apartment, Sector-4, Dwarka,
FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 1 of 12
New Delhi-110078.
F. Offence complained of :U/S 506/509
G. Plea of accused :Pleaded not guilty
H. Final order :Acquitted
I. Date of such order :17.10.2023
___________________________________________________________ BRIEF FACTS AND REASONS FOR THE DECISION:
1. The story of the prosecution is that on 23.09.20202 at about 06:00 PM at office of Ratnakar Apartment, Dwarka the accused intending to insult the modesty of the complainant Mrs. Seema Yadav uttered the abusive words intending that the same may be heard by her and also committed criminal intimidation by threatening the complainant to kill her and thereby the accused was alleged to have committed the offence under Section 506/509 of Indian Penal Code, 1860 (hereinafter for brevity "IPC").
2. On the basis of the said allegations and on the basis of the complaint of the complainant Mrs. Seema, an FIR bearing number 596/2020 under section 506/509 IPC was lodged at Police Station Dwarka North on 16.11.2020.
3. After investigation, charge-sheet under section 173 Criminal Procedure Code, 1973 (hereinafter for brevity "CrPC") was filed on 13.01.2021.
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4. On the basis of the charge-sheet, a charge for the offences punishable under section 509/506 IPC was served upon the accused Utkarsh Agnihotri and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 26.09.2022.
JUDICIAL RESOLUTION:
5. 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.
6. 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).
7. 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 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.
FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 3 of 12 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.
8. 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).
9. 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 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.
FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 4 of 12 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 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 FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 5 of 12 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 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".
10. 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.
11. Furthermore, the accused is also charged under Section 506 (II) IPC. To prove the said offence the prosecution is required to prove the ingredients in the said section read with Section 503 IPC which defines FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 6 of 12 'criminal intimidation'. With regard to Section 506 Part II IPC, ingredients which make the section 506 Part II IPC are to be read with Section 503 IPC which defines criminal intimidation:
1. Threatening a person with any injury;
(i)to his person, reputation or property; or
(ii)to the person or reputation of any one in whom that person is interested.
2. Threatening a person with death or with grievous injury.
(a) to cause alarm to that person, or
(b) to cause the person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat, or
(c) to cause that person to omit to do any act which that person is legally entitled to do so as the means of avoiding the execution of such threat.
12. It has been held by Hon'ble Delhi High Court in the case of Kanshi Ram vs State 86 (2000) DLT 609 that for an offence under Section 506 (II) IPC to be made out, mere threats would not be sufficient rather the threats extended must cause some alarm to the complainant/ victim which in turn made them to do any act which they were not legally bound to do, it has been held by Hon'ble High Court that "10. So far as the offence under Section 506 IPC is concerned, the complainant Isran 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 Isran Ahmed, the exact words used by the petitioner were "Maro Salon Ko".Strangely enough, Isran 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 FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 7 of 12 after the alleged threat, the complainant or other media persons did not retrace their steps. It is well settled that more threat is no offence. That being so the threat alleged to have been given by the petitioner does not fall within the mischief of Section 506 IPC. Consequently, no charge under Section 506 IPC can be framed against the petitioner on the basis of the said evidence."
13. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent, clinching and convincing evidence. Further in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Also the burden of proving the charge(s) against the accused in a criminal trial remains with the prosecution throughout the trial, which never shifts on to the shoulders of the accused.
14. Now in the instant case, in the light of facts and circumstances of the case and settled law as discussed hereinabove; to prove its case under Section 506 (II) IPC and Section 509 IPC against the accused the prosecution/ complainant was required to prove the ingredients of the offences in question.
APPRECIATION OF EVIDENCE:
15. The prosecution in order to prove the above said allegations against the accused Utkarsh Agnihotri has to prove that the said accused had intentionally gave abuses to the complainant with intention that the same shall outrage her modesty and also gave threats to the complainant so as to cause alarm to her.
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16. In order to prove the said allegation, the prosecution has to procure the attendance of the said witness and has to examine her in order to bring home guilt of the accused. It needs to be appreciated that the complainant was not produced by the prosecution as she had expire during the pendency of the trial itself and her death verification report was also called from the concerned SHO, who reported that the complainant had expired on 02.05.2021.
17. Thereafter, the witness/ Seema Yadav was dropped from the list of witnesses on 29.05.2023 as it was not possible to procure her attendance due to her demise.
Besides the complainant, there is no other witness who can prove the case of the prosecution, as none of the witness, is eye witness in the present case. As the complainant has not appeared before the court to depose, no purpose could have been served by summoning and examining the remaining witnesses, who are merely formal witnesses in the present case.
18. The court still went on to examine PW-1, IO/ASI Ram Kishan who deposed regarding the investigation carried out in the case. However, he did not state about any other eye-witness being present at the spot.
19. For a better appraisal of the issue at hand, a brief discussion of the testimony of the aforesaid prosecution witness is being dealt with hereinbelow.
FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 9 of 12 a. PW-1 ASI Ram Kishan deposed that in the year 2020 he was posted at PS Dwarka North as an ASI and on 16.11.2020 he was on emergency duty and the complainant came to the PS to give her written complaint to the SHO which was marked to him. He further deposed that upon the same he prepared the rukka and got the FIR registered, whereafter he went to the spot with the complainant and prepared the site plan at her instance. He further deposed regarding the serving of notice to the accused under Section 41A CrPC and also applied for recording of statement of the complainant under Section 164 CrPC by the Magistrate. He further deposed that after recording and placing on record the statements of the witnesses he filed the charge-sheet before the court.
In his cross-examination by Ld. defence counsel PW-1 deposed that the complainant came to the PS on 16.11.2020 to give her complaint and in her complaint she had mentioned the date of the incident as 23.09.2020. He further deposed that he had not inquired from the complainant the reason for delay in lodging the complaint. He further deposed that during investigation when he went to the spot, he found no other public witness in support of the allegations made by the complainant. He further deposed that he had not collected the CDRs of the accused and the complainant and that he had also not checked any CCTV footage from the spot. He lastly denied the suggestion that he had not carried out the investigation in a fair and proper manner.
It needs to be appreciated that in the absence of the testimony of the Complainant Mrs. Seema Yadav, it is not possible for FIR No. 596 /2020 State Vs. Utkarsh Agnihotri@Sanu Page no. 10 of 12 the prosecution to prove the guilt of the accused person through the testimony of remaining witnesses, who are formal witnesses in the present case. Accordingly, prosecution evidence was closed.
20. Statement of accused under section 313 CrPC read with section 281 CrPC was recorded on 06.10.2023, the accused stated in his statement that he was falsely implicated in the instant case by the complainant as he had filed a case against the complainant's son in response to which she had filed the instant case against the accused.
21. A perusal of the aforementioned testimony of the prosecution witness it needs to be appreciated that the witness produced by the prosecution before the court is witness to investigation and not witness to the incident. The PW in his testimony had clearly stated that there were no public persons/ eye-witness of the incident at the spot. Thus, the testimony of investigating officers and witnesses to investigation in the instant matter qua the factum of Section 506/509 IPC cannot be stated to be sufficient for conviction of the accused. Furthermore, the Ld. APP for the State has also harped upon the statement of the witness under Section 164 CrPC during investigation as a ground for convicting the accused however, what needs to be appreciated that the statement of the complainant recorded under Section 164 CrPC is merely a corroborative piece of evidence and in absence of testimonial examination of the complainant in court the same does not get any corroboration and thus remains to be insufficient to convict the accused for the offences with which he is charged.
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22. In light of the facts and circumstances of the case as there was no other eye-witness to the incident and even the complainant was not present before the court to give her statement, accordingly the accused is acquitted of the offences under Section 506/509 IPC. As per section 437A of the CrPC, as amended vide the amendment act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today. Documents, if any be returned to the rightful claimant against acknowledgement. File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court SANKALP
by SANKALP
KAPOOR
today i.e. on 17.10.2023. KAPOOR Date:
2023.10.17
16:39:24 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
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