Delhi District Court
State vs . Dharmender Saroha & Anr. on 24 March, 2023
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 4401/2017
STATE Vs. DHARMENDER SAROHA & ANR.
State vs. Dharmender Saroha & Anr.
FIR No. 310/2016
Police Station : Saket
Under Sections : 323/506/509/34 IPC
Date of institution : 13.10.2017
Date of reserving : 21.03.2023
Date of pronouncement : 24.03.2023
JUDGMENT
a) Serial number of the : 4401/2017 case
b) Date of commission of : 12.02.2016 offence
c) Name of the complainant : Ms. Asha Saroha
d) Name, parentage and : i) Dharmender Saroha S/o Sh. Om address of the accused Prakash persons
ii) Om Prakash S/o Sh. Ram Singh Both R/o H. No. 90, Gali No. 20 & 21, Bhikam Colony, Ballabhgarh, Faridabad (Haryana).
e) Offence complained of : 323/506/509/34 IPC f) Plea of the accused : Accused persons pleaded not persons guilty State vs. Dharmender Saroha & Anr. FIR No. 310/2016, PS: Saket Page 1 of 16 g) Final order : Acquittal h) Date of final order : 24.03.2023 BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. Succinctly stated, the instant case was registered on the written complaint of complainant Ms. Asha Saroha, wherein she averred that her two matrimonial cases were pending trial in the Court of Ms. Shivani Chauhan, Ld. Metropolitan Magistrate, Saket Courts, New Delhi. She further averred that pursuant to the referral of her cases to the Mediation Centre, on 12.02.2016 between 02:45 to 03:15 PM, she along with her father and counsel came to the Mediation Centre, Saket Courts, New Delhi. There, accused No. 1 (husband of the complainant) and accused No. 2 (father-in-law of the complainant) along with their counsel also came. Both the parties appeared before Sh. Sunil Sehgal, the Ld. Mediator. When the complainant along with her father came out of the Mediation Centre, the counsel for the accused persons started talking with her and her father. Thereafter, the accused persons started arguing with the complainant, abused her and made remarks on her, stating "Tere To Sattar Yaar Hain" and she was also slapped. The complainant alleged that she was beaten and slapped by the accused persons in public and they extended life threat to her as well.
CHARGE
2. Vide order dated 16.01.2018, charge for the offences State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 2 of 16punishable under Sections 323/506/509/34 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") was framed against the accused persons, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 17.10.2022, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused persons were called upon to admit or deny the genuineness of i) The present FIR; ii) Rukka; iii) Diary No. 137-LC dated 12.02.2016; iv) Arrest of the accused; v) Storage capacity of the CCTV; and vi) Statement of the victim/complainant recorded u/s 164 CrPC vide Ex A1 to A6.
EVIDENCE OF THE PROSECUTION
4. Prosecution has examined total five witnesses i.e. PW1 Smt. Asha Malik (the complainant), PW2 Sh. Om Pal (father of the complainant), PW3 ASI Rajeev Kumar [the investigating officer (IO)], PW4 Sh. Pardeep Kumar and PW5 SI Rakesh Kumar.
5. PW1 Smt. Asha Malik/Asha Saroha is the complainant of the present case, who deposed that some matrimonial disputes related to her were pending, out of which one matter was referred to the Mediation Centre, Saket Courts, New Delhi. She further deposed that on 12.02.2016, she along with her father came to the said Mediation Centre. The parties attended the proceedings there and State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 3 of 16after proceedings, the matter was adjourned to some other date. Thereafter, the complainant along with her father came out of the Mediation Centre and held talk with both the counsels. At about 02:45 PM, the complainant was proceeding towards the stairs, where both the accused persons were standing. Accused No. 2/father-in-law of the complainant told her as "Iski Shakal Dikh Rahi Hai, Ise Paise Denge Hum, Ise Toh Court Mein Aise Hi Dhakke Khilwayenge, Sattar Khasam Rakh Rakhe Hai, Unse Mang Paise". Accused No. 2 also slapped the complainant. Thereafter, accused No. 1/husband of the complainant pushed the complainant and told her "Jaa Chali Jaa". Due to the push, the complainant collided with the wall at the spot. The complainant was rescued by her father. Accused No. 1 asked his father as to why he had slapped the complainant. Thereafter, Sh. Prashant Agnihotri, counsel for the complainant suggested to lodge a complaint in regard to the incident. On hearing the noise, the public persons and the police officials came at the spot. Both the parties approached the police chowki, where the police officials suggested them to settle the matter. Finally, the police officials suggested the complainant to go to the police station to lodge a complaint. The complainant approached the police station and tendered his written complaint. Site plan at the instance of the complainant was prepared. Statement of the complainant u/s 164 CrPC was also recorded. The witness/complainant correctly identified accused No. 2. The identity of accused No. 1 was not disputed he being exempted from his personal appearance on the day of evidence. The witness was duly cross-examined.
State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 4 of 166. PW2 Sh. Om Pal is the father of the complainant, who deposed that on 12.02.2016, he along with his daughter Asha came to Saket Court on a hearing in the Court of Ms. Shivani Chauhan. Accused Om Prakash and Dharmender had also come there. Both the parties were accompanied by their respective counsels. The parties were advised to settle the matter and accordingly, they were sent to the Mediation Centre, Saket, New Delhi. PW2 further deposed that in the mediation proceedings, his daughter Asha asked for Rs.25.00 Lakh for the settlement but Om Prakash/accused No. 2 agreed to give the amount of Rs.13-14 Lakh, and as a result, the settlement failed. Thereafter, both the parties came out of the Mediation Centre and went on for further settlement. PW2 further deposed that he was sitting on the bench and her daughter Asha was standing. In the meantime, Om Prakash/accused No. 2 made remarks on her daughter/complainant as "Teri shakal hai 13-14 lakh rupee wali or tu 70 khasam karti ghumti hai". Thereafter, the daughter of PW2/Complainant replied as "Bata kaha hai mere 70 khasam". Thereafter, accused Om Prakash gave tight slap to the daughter of PW2. Accused No. 1 i.e. Dharmender also joined his father Om Prakash/accused No. 2 and both of them pushed the daughter of PW2 against a wall. The daughter of PW2/Complainant shouted for help, saying "Papa bchao bchao". Thereafter, crowd gathered there, and PW2 along with the help of other people, set her daughter Asha, accused No. 1 Dharmender and accused No. 2 Om Prakash apart. The daughter of PW2 received injury on her nose and face. Thereafter, a complaint was made in that regard in Saket Police Station. The daughter of PW2/Complainant was medically examined at PSRI Hospital, New Delhi. PW2 correctly identified State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 5 of 16both the accused persons. The witness was duly cross-examined by Ld. Defence Counsel.
7. PW3 ASI Rajeev Kumar is the IO of the present case, who deposed that pursuant to the investigation of the present case assigned to him, he came to the Saket Courts Complex, New Delhi to obtain the CCTV footage of the alleged incident. However, he could not obtain the same, as it was told by the CCTV Operator that CCTV footages of the Court premises could be reserved only for 18 days and after its expiry, the CCTV footages automatically get deleted/destroyed. PW3/IO further deposed that he got the statement of the complainant recorded u/s 164 CrPC, prepared site plan at her instance, interrogated and arrested both the accused persons, collected certified copy of the MLC and received reply from the PSRI Hospital. PW3 correctly identified both the accused persons. The witness was duly cross-examined by Ld. Defence Counsel.
8. PW4 Sh. Pardeep Kumar is the In-charge, Medical Record, PSRI Hospital, New Delhi, who proved the MLC No. 292 vide Ex PW4/A. The witness was duly cross-examined by Ld. Defence Counsel.
9. PW5 SI Rakesh Kumar deposed that on 12.02.2016, on receipt of one written complaint, he conducted preliminary inquiry on the same. Thereafter, on 16.03.2016, he made endorsement (Ex PW5/A) on the complaint and handed it over to the Duty Officer for registration of the present FIR. The witness was duly cross-
State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 6 of 16examined by Ld. Defence Counsel.
STATEMENT / DEFENCE OF THE ACCUSED PERSONS
10. In their respective statements recorded under Section 313 of the Code, both the accused persons denied the entire evidence against them. They stated that they are innocent and have been falsely implicated in this case. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
11. The record has been thoroughly and carefully perused. The respective submissions of Sh. Rajat Bansal, Ld. Assistant Public Prosecutor for State and Sh. Jagat Singh, Ld. Counsel for both the accused persons have been considered.
12. It is an admitted fact that various matters are pending between the parties who are related. Accused no.1 and Accused no.2 are the husband and father in law of the complainant. Therefore, at the time of the incident, the relationship between the parties was acrimonious. It is further admitted by the accused persons that on 12.02.2016, the accused persons and the complainant were at the Delhi Mediation Centre, Saket, New Delhi for mediation proceedings. Therefore, the only issue to be examined is whether the accused persons, in furtherance of common intention, slapped and gave beatings to the complainant and used filthy language intending to insult her State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 7 of 16modesty.
Appreciation of Evidence
13. The complainant, in her examination in chief, has averred that on the date of the incident, the accused Om Prakash used filthy language and thereafter, slapped her. When the complainant asked him as to why he slapped her, accused Dharmender pushed her and asked her to leave. On detailed perusal of the record it is apparent that there are various inconsistencies and inadequacies in the prosecution's case which are discussed in detail below.
14. The complainant, in her examination in chief, deposed that the police officials in police chowki did not register her complaint and asked her to approach P.S. Saket. It is averred that the complainant, her father and her counsel went to P.S. Saket and she gave a written complaint (Ex. PW1/A) on 12.02.2016. However, in the same cross-examination, she later averred that she had not visited the P.S. on 12.02.2016. PW2/ Om Pal has also averred that their statements were recorded on the same day i.e. 12.02.2016. However, the IO has stated that no statements were given by the complainant and her father (PW2) on 12.02.2016. The statements recorded under Section 161 of the Code of the victim and her father are dated 12.07.2017 and 15.04.2017 respectively. Moreover, the IO, has deposed that he went to PW2's residence to record his statement. Therefore, it raises suspicion whether the prosecution witnesses are deposing truthfully with respect to the statements given by them to the investigating officials?
State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 8 of 1615. Further, there is uncertainty with respect to the bodily injury allegedly incurred by the complainant. The IO, PW5 SI Rakesh Kumar has deposed that he did not notice any visible injuries on the victim/complainant when she visited P.S. Saket on 12.02.2016. Further, it is pertinent to note that the medical record which is Ex. PW4/A mentions that no visible or external injury is visible. Also, it is pertinent to note that in the recital of the medical report, the concerned doctor has mentioned that the victim has alleged assault by her husband (on the left eye brow). However, PW2, father of the complainant had deposed that she suffered injury on her nose and face. However, this averment w.r.t injury on the nose is not supported by the observations of the doctor.
16. For reasons best known to the prosecution, the key independent witness in the instant matter i.e. the complainant's counsel has not been examined. He was present at the time of the incident and also at the time of registering the complaint with P.S. Saket. Further, the counsel would have deposed with respect to the incident and the injuries incurred by the complainant. No reasonable explanation is also forthcoming w.r.t. his absence in the list of witnesses. Further, neither has the mediator nor the staff of the mediation cell who ought to have been present at the place of incident have been examined. They could have shed some light on the alleged criminal acts of the accused persons. No security guard posted at the Mediation Centre have been examined. The complainant, in her examination in chief, has deposed that public persons and police officials had come to the spot hearing the noise.
State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 9 of 16However, none of these public persons or police officials have been examined. The statement of the IO that he could not record statements of any of the above persons or any public person who was witness to the incident does not seem credible, especially in light of the fact that the PW5 SI Rakesh Kumar has admitted that he visited the place of incident on 12.02.2016 itself. Especially, in such cases, where the parties are embroiled in various litigations, it is reasonable to expect the prosecution to examine as many independent witnesses as possible in order to establish that the complainant, who already has an axe to grind with the accused persons, was not framing them falsely. This further weakens the case of the prosecution.
Re: Section 506 of IPC
17. In Amulya Kumar Behera vs. Nabaghana Behera [1995 CriLJ 3559], the complainant alleged that the accused abused him in filthy language and if the witnesses had not intervened and saved him, the accused would have given him more injuries than a mere fist blow. The complainant admitted that he was not alarmed by the threat given to him by the accused. The Hon'ble High Court of Orissa observed that creating an alarm in the mind of the threatened person is an essential ingredient to attract 506 IPC and since this important element was missing, it did not amount to criminal intimidation. In Surinder Suri vs. State of Haryana [Decision dated 09.05.1996 of the Hon'ble Punjab and Haryana High Court in Criminal Misc. No. 20737-M of 1995], the Hon'ble Punjab and Haryana HC observed that the gist of the offence under Section 503 State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 10 of 16IPC, is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one that can be put into execution by the person threatening. A mere vague allegation by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation. In Subramanian Swamy vs. C. Pushparaj [1998 (1) CTC 300], the complaint was filed on a speech delivered by the petitioner which the complainant found offensive and threatening under 506 IPC. The court observed that for an offence to amount to criminal intimidation one must look at to whom it was intended, whether the alarm was caused, what are the actual words employed. The mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court. The court held that mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506 of IPC.
18. With respect to Section 506 of IPC, the Hon'ble Supreme Court in Manik Taneja and another vs. State of Karnataka [2015 7 SCC 423], observed:
"It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant."
19. The above mentioned judgments on the interpretation of Section 503 and 506 is squarely applicable to the instant case, as the complainant neither in her complaint nor in her testimony has State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 11 of 16averred that the threats from accused Om Prakash caused her alarm. In case, an alarm was caused, she would have immediately made a PCR Call which is not the case. Also, mere outburst of the accused subsequent to mediation proceedings do not fall within the mischief of Section 506 of IPC. Moreover, as mandated by the Hon'ble Apex Court, no material has been placed on record to show that the intention of the accused Om Prakash was to cause alarm to the complainant. Therefore, the prosecution has failed to establish commission of offence under Section 506 of IPC.
Re: Section 509 of IPC
20. Section 509 of IPC provides the following:
"Word, gesture or act intended to insult the modesty of a woman - 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, of 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 one year, or with fine, or with both."
21. On reading of Section 509, it is apparent that in order to bring an act committed by a person within the purview of Section 509, the act must have been committed with the intention to insult the modesty of any woman or to intrude upon the privacy of such woman. Thus, intention is the basic ingredient of the offence under Section 509 IPC.
22. The act of insult alleged against the accused Om Prakash is that he abused the complainant outside the Mediation Centre, Saket State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 12 of 16District Courts. The main question that needs to be answered is whether the accused hurled abuses at her with an intent to outrage her modesty. Mere utterance of abuses does not automatically amount to outrage of modesty. In Abhijeet J.K. vs. State of Kerala [2020 SCC OnLine Ker 703], the Hon'ble High Court of Kerala held that there is a 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, merely insulting a woman is not sufficient and insult to modesty of a woman is required to have been done. Section 509 criminalizes 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. In State of Punjab vs. Major Singh [AIR 1967 SC 63], the Hon'ble Supreme Court held that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty. In Rupan Deol Bajaj vs. K.P.S. Gill [AIR 1996 SC 309], it was held that if the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of decency of a woman, then it can be found that it is an act of insult to the modesty of the woman. In Basheer vs. Kerala [2014 KHC 5026], it was held that there must be a definitive allegation of insult to the modesty of woman or intrusion into the privacy of woman.
23. As mentioned above while appreciating the evidence on record, the veracity of the complainant's averments with respect to State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 13 of 16the abuses is itself questionable especially in the absence of any other independent witness. In arguendo, even if the allegations are admitted, there is no definitive allegation that her modesty was actually insulted or her privacy was intruded. Mere utterance of abuses would not automatically tantamount to outraging modesty. Therefore, this court has no hesitation to conclude that the allegations under Section 509 of IPC stand unproved.
Re: Section 323 of IPC
24. Section 323 imposes punishment on causing hurt voluntarily. Hurt is defined in Section 319 of IPC as causing bodily pain, disease or infirmity to any person. As mentioned while appreciating the evidence on record, there is no independent corroborative evidence placed on record with respect to the allegations of voluntary causing of hurt. The lack of independent witnesses coupled with the nature of the medical report which does not indicate any injuries and the deposition of the PW5 SI Rakesh Kumar that he did not notice any visible injuries to the victim strike a death knell to the prosecution's case. The prosecution has not been able to prove the allegations of hurt qua the accused persons.
Re: Section 34 IPC
25. The allegations w.r.t. usage of filthy language and voluntary causing of hurt have been levelled against the accused Om Prakash. There are no direct allegations against accused Dhamender Saroha. The prosecution has implicated accused Dharmender under Section 34 IPC alleging that the criminal acts were done by accused Om State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 14 of 16Prakash in furtherance of common intention of both the accused persons. The Hon'ble Supreme Court has interpreted Section 34 of IPC in State of Rajasthan vs. Gurbachan Singh and others [Decision dated 07.12.2022 of the Hon'ble Supreme Court of India in Crl. Appeal No. 2201 of 2011] as follows:
"Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention."
26. As the primary accused Om Prakash has been exonerated of the charges, imputation of liability on accused Dharmender is not at all an eventuality. Even if the incident were to be believed, common intention has not put forth by way of evidence by the prosecution. No inference of common intention can be drawn against the accused persons from the information available on record.
27. As accused persons and the complainant were known to each other and involved in multiple litigations, false implication of the accused persons by the complainant in the present case cannot be ruled out in view of the fact that no motive has come on record as to why the complainant was allegedly beaten up by the accused persons. The testimony of the complainant has failed to throw any light in this aspect. It seems that the complainant has not disclosed State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 15 of 16the complete facts during the course of investigation nor at the stage of trial. Due to the material contradictions, embellishments and improvements in the testimonies of the victim and her father (PW1 and PW2) a doubt has been created in the story of prosecution pointing that false implication of the accused persons cannot be ruled in the present case. Hence, in view of the foregoing discussion, it is crystal clear that the prosecution has miserably failed to lead convincing and clinching evidence against accused persons namely Om Prakash and Dharmender Saroha to bring them within the four corners of the offences under Section 323/506/509/34 of IPC. Accordingly, the aforesaid accused persons are acquitted of the offences punishable under Section 323/506/509/34 of IPC.
Dictated and announced in open Court on 24.03.2023.
(T. Priyadarshini) Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 24.03.2023 State vs. Dharmender Saroha & Anr.
FIR No. 310/2016, PS: Saket Page 16 of 16