Delhi District Court
State vs Rakesh Dhyani on 6 October, 2023
IN THE COURT OF SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020319452017
CNR No.DLSW020319452017
Cr. Case No.8570/2017
FIR No.369/2016
PS: Dwarka North
U/S:323/341/506/509 IPC
State Vs.Rakesh Dhyani
JUDGMENT
A. Sl. no. of the case : 8570/2017
B. Date of institution : 13.11.2017
C. Date of offence : 04.07.2016
D. Name of the complainant : Dr. Jitendra Nath s/o Late Sh. Kansh
Raj
R/o Flat no. 05, PKT-1, Gangotri
Apartment, Sector-12, Dwarka, New
Delhi.
E. Name of the accused : Rakesh Dhyani s/o Late T. R.
Dhyani
R/o Flat no. 378, PKT-I, Gangotri
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 1 of 29
Apartment, Sector-12, Dwarka, New
Delhi.
F. Offence complained of : U/S 323/341/506/509 IPC
G. Plea of accused : Pleaded not guilty
H. Final order : Acquitted
I. Date of such order : 06.10.2023
____________________________________________________________ BRIEF STATEMENT OF REASONS FOR THE DECISION:-
A. FACTUAL MATRIX
1. The prosecution was set into motion in the present case on the basis of statement of the complainant i.e., Sh. Jitendra Nath dated 26.07.2016. In his statement the complainant had stated that he is a retired Government teacher and a resident of Gangotri Apartment. It is alleged that on 04.07.2016 at about 10:45 PM he was walking in his society when suddenly another society resident came towards him, blocked his way, threatened him and punched him on his face due to which he received injury on his left eye. It is also alleged that a call was made on 100 number and when the PCR reached the spot, it took the complainant to DDU hospital where he was treated for his injury. It is also alleged by the complainant that his wife Smt. Manju told him that the accused on the night of the incident came to their flat asking for the complainant and when she told him that the complainant was not present there, the accused misbehaved with her, abused her and then went away. It is the case of the prosecution that on 26.07.2016 the complainant went to the PS and lodged FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 2 of 29 his complaint. On the basis of aforesaid allegations the present case was registered and investigation was taken up.
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 25.10.2018.
3. Accused was summoned and provision of Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC') was complied with. On finding a prima facie case against accused, the particulars of offence were explained to accused and charge for offence punishable under Sections 323/341/506/509 Indian Penal Code, 1860 (hereinafter for brevity 'IPC') was framed against the accused to which he pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
C. PROSECUTION EVIDENCE:-
4. Oral Evidence:-
i. PW-1, Complainant Dr. Jitendra Nath, ii. PW-2, Smt. Manju (wife of the complainant), iii. PW-3, Sh. Ashok Kumar (eye-witness of the incident), iv. PW-4, ASI Banwari Lal (First IO of the case), v. PW-5, SI Vinay Kumar (Second IO of the case), and vi. PW-6, SI Sandeep Kumar (third IO of the case).
Documentary Evidence:-
i. FIR number 369/2016 dated 26.07.2016 (Ex. P/A/1), FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 3 of 29 ii. Certificate under Section 65B of Indian Evidence Act (Ex.
P/A/2),
iii. Statement of Smt. Manju under Section 164 CrPC recorded
by Ld. MM (Ex. X1),
iv. DD number 51A dated 04.07.2016 (Ex. P/A/4),
v. DD number 9A dated 05.07.2016 (Ex. P/A/3), and
vi. MLC number 5671/2016 dated 05.07.2016 of DDU Hospital
of complainant Dr. Jitender Nath Yadav (Ex. P/A/5).
5. After the examination of all the prosecution witnesses, the prosecution evidence was closed on 01.05.2023 and statement of accused was recorded on 01.05.2023 wherein accused denied the evidence that has come on record against him and stated that he has been falsely implicated in this case. Accused chose to lead evidence in his defence. Thereafter, accused examined two witnesses in his defence and thereafter DE was closed on 16.05.2023.
6. I have heard Ld. APP for State, Ld. Counsel for the complainant as well as Ld. Counsel for accused and have also carefully gone through the file.
7. Ld. APP for the State and Ld. counsel for the complainant had argued that the witnesses produced and examined by the prosecution in support of its case have proved the prosecution case beyond reasonable doubt and therefore the accused is liable to be convicted for the offences for which charged.
8. On the other hand Ld. defence counsel had argued that the testimony of the prosecution witnesses is totally contradictory and untrustworthy and therefore no conviction can be based upon such unreliable witnesses. Ld. defence counsel had also argued that no public FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 4 of 29 witness/ independent witness was asked by the IO to join the investigation of the present case and this fact also casts a doubt upon the prosecution version. It was also argued by Ld. defence counsel that the incident had taken place on 04.07.2016 and the present case was registered on 26.07.2016 and there is a delay of more than twenty days in registration of the FIR and the said delay has remained unexplained and is fatal for the prosecution version.
9. A careful analysis of the testimony of the PWs as well as DWs is very much essential for deciding the rival submissions as well as for deciding the present case.
10. PW-1 i.e., Mr. Jitendra Nath is the complainant/ victim and is the most important witness in the present case. He deposed that on 04.07.2016 at about 10:45 PM he was walking in his society after having his dinner. He further deposed that in his absence his neighbour/ accused Rakesh Dhyani came to his house and asked him about him from his wife and when she refused that he was not at home; the accused abused her, touched her chest and pushed her. He further deposed that thereafter his wife raised an alarm upon which the accused started coming towards his own house and met the complainant in the corridor of the society in front of his flat. PW-1 further deposed that the accused gave a fist blow on the left eye of the complainant due to which his specs got broken and he fell on the ground. He further deposed that he got unconscious after the beatings and the accused ran away from the spot. PW-1 further deposed that thereafter when he regained consciousness he came to know that he had passed urine in his pants and his wife made a call at 100 number. He further deposed that his statement was recorded by the police and exhibited FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 5 of 29 as Ex. PW-1/A. PW-1 also deposed that the police took him to DDU hospital where his medical examination was got conducted. PW-1 also exhibited the site plan and correctly identified the accused in the court.
In his cross-examination by Ld. defence counsel PW-1 deposed that at the time of the incident he was joint secretary of the RWA and at that time one Mr. Ashok was walking near him who was the vice- president of the society. He further deposed that he did not remember the flat number of PW Ashok and deposed that the said Ashok had filed a case against the accused in which the complainant herein, is a witness. PW-1 further deposed that none of the neighbours had reached the spot when the alleged incident happened with his wife and denied the suggestion that both PW-1 and Mr. Ashok are interested witnesses in the case. PW-1 further denied the suggestion that he had not shared the fact with any neighbours as it had never happened. PW-1 further denied the suggestion that while he was walking Mr. Ashok was walking with him but was at some distance. However, PW-1 was not able to tell the exact distance between them. He further deposed that the distance between the spot and guard room of gate number 03 of the society was about 5-10 feet. PW-1 denied the suggestion that the neighbours were also taking walk in the society at the time of the incident. He accepted as correct the suggestion that the CCTV cameras are installed at the guard room at gate number 03 however voluntarily added that the said CCTV was not working at the time of the incident. He denied the suggestion that the CCTV was in working condition and the same was not handed over to the IO as no such incident had ever happened. He further denied the suggestion that there are guards deployed throughout the day and night at the guard room situated near the flat of the complainant. PW-1 denied the suggestion that there are 3 guards FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 6 of 29 at back gate of society and voluntarily added that the said gate number 03 gets closed at 10 PM thus no guard is there to man the said gate at night. PW-1 stated that Mr. Ashok did not intervene in the beatings which were given by the accused to the complainant as he was frail and aged. PW-1 further deposed that his statement was taken by the police right after the incident. He further deposed that he narrated the entire incident to his son as he was undergoing training in the army. He further stated that his FIR was registered after he pursued his complaint with the ACP, Dwarka where his statement was recorded by Banwari Lal. He denied the suggestion that he was having good relations with the ACP and the instant FIR was registered upon being pressurized by the ACP. He further deposed that the statement of his wife was also recorded just after the incident. He denied the suggestion that no statement was ever recorded by the police on the date of the incident. PW-1 stated that he does not remember the date when his wife's statement under Section 164 CrPC was recorded. PW-1 denied the suggestion that the accused had not beaten him and that he had suffered injuries upon falling on road. PW-1 denied the suggestion that his MLC did not mention any injury to his eye. PW-1 denied the suggestion that as no incident had ever happened hence he had not told his neighbours about the same. PW-1 denied the suggestion that he had some previous grievance with the complainant with regard to an RWA election and that is why he had falsely implicated the accused in the instant case in conspiracy with one Ashok. PW-1 stated that his wife had told him that prior to giving her beatings the accused had also misbehaved with her and abused her. PW-1 stated that he was not present at the spot when the accused had allegedly beaten his wife and stated that he was not aware if his wife had made a call through mobile or landline. PW-1 further denied the suggestion that he had wrongfully restrained one Mr. Rawat in 2004 and gave beating to him and FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 7 of 29 the instant accused Rakesh had saved Mr. Rawat from the clutches of the complainant. PW-1 denied the suggestion that at the time of the incident he had passed derogatory statements against the accused or the police department. PW-1 further denied the suggestion that he was not happy with the accused not voting for him in the RWA election and that he had filed false case against him. He voluntarily added that he had won the elections unopposed.
11. PW-2 Ms. Manju, wife of the complainant and alleged eye- witness of the incident deposed that on 04.07.2016 at about 10:45 PM, she was present at her house and her husband had gone for a walk after having dinner when the accused came to her house and started abusing her and told her to take her husband out of the house. PW-2 further deposed about the abusive words that the accused had uttered in her presence by writing it on a plain paper and exhibiting as Ex. PW2/A. She further deposed that the accused had also pushed her at her chest due to which she fell on the ground while he was drunk. She further deposed that thereafter the accused ran away from the spot. PW-2 further deposed that in the meanwhile she heard alarm being raised by her husband and when she went outside she saw the accused beating her husband, whereupon she also raised an alarm. PW-2 further deposed that thereafter she made a call at 100 number and police reached the spot. She further deposed that her husband was bleeding from his eyes and the police shifted him to DDU hospital. PW-2 correctly identified the accused in the court.
In her cross-examination by Ld. defence counsel PW-2 deposed that she was working as government teacher on the date of her testimony. She further deposed that she along-with her husband and son FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 8 of 29 were staying at the said house and her son had gone to training at the time of the incident and was called back after about one and half month. She further deposed that she was having two flats bearing number 05 and 06 in the Gangotri apartments and accepted as correct the suggestion that there is iron-gate fixed at the stairs before entering the flat. She denied the suggestion that she had rented out flat number 06 at the time of the incident. She further deposed that the flat number 04 was occupied at the time of the incident and stated that if anybody has to enter the flat number 05, they have to pass through the iron-gate located at the stairs. PW-2 further deposed that she could have talked to the accused without opening the gate. PW-2 denied the suggestion that the accused had not come to her house on the date of the incident or that she had not opened the iron-gate. PW-2 denied the suggestion that one cannot push anyone while standing at the stairs and voluntarily added that she had opened the door and accused had entered. PW-2 further deposed that her husband was in the corridor when he was being beaten by the accused. She stated that there is a guard room situated just down the stairs of her flat and a CCTV camera is also installed there. PW-2 denied the suggestion that one guard is always present at the guard room and voluntarily added that the guard usually goes after 10:00 PM as the back door of the society is locked thereafter. PW-2 denied the suggestion that no such incident ever took place and that is the reason no CCTV footage was provided to the IO and voluntarily added that the camera was not working on the date of the incident. She further deposed that one Ashok Kumar who is the member of the society had witnessed the incident. PW-2 further deposed that her statement was recorded by the police on the date of the incident itself. She denied the suggestion that no such statement was ever recorded on 23.06.2017 as no such incident is mentioned in the judicial file. She further deposed that her FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 9 of 29 statement was recorded by the magistrate under Section 164 CrPC but stated that she does not remember the date when the same was recorded. She further accepted as correct the suggestion that she had not mentioned the exact abuses in her statement under Section 164 CrPC. She further stated that she was not taken to hospital for her examination as she had sustained minor injuries.
12. PW-3 Mr. Ashok Kumar, eye-witness as per the prosecution story deposed that on 04.07.2016 at about 10:45 PM while he was walking towards the LIG flats in his society itself and the complainant was walking 8-10 steps ahead of him, who stopped when he reached near his flat's staircase and was standing on the first lane of the stairs. He further deposed that in the meanwhile he also reached near the complainant and saw the accused Rakesh coming down from the stairs and giving a fist blow to the left eye of the complainant due to which the complainant's glasses got broken and he got injured. He further deposed that blood was oozing from the complainant's left eye. He further deposed that thereafter the accused ran towards the gate no.01 of the society. PW-3 correctly identified the accused in the court. He further deposed that after the incident the injured was in a state of shock and was not able to get up. He further deposed that he helped him to reach the stairs and shifted him to his flat. He further deposed that thereafter Ms. Manju made a call at 100 number and police reached the spot. He further deposed that the police enquired about the facts of the case from him and his statement was recorded by him. He further deposed that the injured was shifted to the hospital by the police and he accompanied him to the hospital.
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 10 of 29 In his cross-examination by Ld. defence counsel PW-3 deposed that he is a retired government employee and that he usually stays at his home and sometimes goes to the library to study. He further deposed that he is staying in Gangotri apartment since the year 2002 and that he knew the complainant since 1-2 years since the date of the incident. He further deposed that the complainant used to reside at flat number 05 and the distance between his flat and the flat of PW-3 is about 100 meters. He further deposed that he was the Vice-president of the RWA in the year 2015-16 and Dr. Yadav was the secretary at that time. He further accepted as correct the suggestion that there were some altercations between his son and the accused in the year 2015 regarding car parking and that he had made a call at 100 number at that time. He further deposed that he had complained against the accused and got one FIR bearing number 331/2017 PS Dwarka North registered against him under the provision of prevention of atrocities against SC/ST Act. He further deposed that the accused got discharged in the said case and voluntarily added that he had not pursued the said case. He further accepted as correct the suggestion that Dr. Yadav (the complainant herein) gave a statement against the accused in case FIR number 331/2017 PS Dwarka North. He denied the suggestion that he was giving the statement in the instant case as a matter of obligation towards the complainant. He further deposed that the police had inquired about the facts of the case from him on the date of the incident itself, but was not able to recollect the name of the IO who recorded the same. He further deposed that he did not remember the exact time when his statement was recorded and denied the suggestion that the police did not record any statement on the date of the incident itself or that no enquiry was made from him on the date of the incident. He accepted as correct the suggestion that the guard room is a t a distance of about 5-6 steps from the place of FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 11 of 29 the incident and accepted as correct the suggestion that the cameras are installed at the guard room. He denied the suggestion that other public persons of the society were also walking in the society at the time of the incident nearby the spot. He further stated that his statement was recorded only once that too on the date of the incident only, however he again said that it was recorded on 14.06.2017. He further deposed that he did not inform about the incident to any other member of the society. He further deposed that he did not remember from which hand the accused gave a fist blow to the complainant. He further deposed that the police reached the spot after about 1-1.5 hours. He further deposed that Mrs. Manju made a call at number 100 in his presence and denied the suggestion that he did not meet Mrs. Manju on the date of the incident. He lastly denied the suggestion that he was an interested witness and hence he was deposing falsely.
13. PW-4 SI Banwari Lal was the first IO of the case and deposed that on 26.07.2016 the complainant came to the PS and his statement was recorded by him, whereupon a rukka was prepared and handed over to the IO for registration of FIR. He further deposed that the DO handed him over the copy of FIR and original tehrir.
In his cross-examination by Ld. defence counsel PW-4 deposed that the incident took place on 04.07.2016 and the case was handed over to him on 26.07.2016 when the statement of the complainant was recorded by him at the PS. He further denied the suggestion that the FIR was registered at the instance of the ACP and not registered any earlier as no cognizable offence was made out.
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 12 of 29
14. PW-5 SI Vinay Kumar deposed that the further investigation of the case was handed over to him by the SHO in the year 2016 however, he did not remember the exact day and month. He further deposed that he prepared the site plan at the instance of the complainant and supplementary statement was also recorded by him.
In his cross-examination by Ld. defence counsel he deposed that he was unable to remember the exact date when the accused was called on written notice. He further deposed that he went to the spot 2-3 times. He further deposed that he did not remember whether there was any guard room at the place of incident or not. He accepted as correct the suggestion that the incident took place near the staircase at the ground floor and the complainant resided at the first floor at the time of the incident. He further accepted as correct the suggestion that he had not taken the statement of any public person during the time when he was investigating the case. He further deposed that he had not made any DD entry when he left the PS for investigation of the case as he was the chowki in-charge and most of the time he was on patrolling duty in the area. He further deposed that he had mentioned the said fact in the case diary and further denied the suggestion that he had not visited the spot at any point of time. He further deposed that he had not given any notice under Section 91 CrPC to the authority of the concerned society to provide the CCTV footage installed near the place of the incident. He further deposed that upon inquiry he found that those CCTVs were not in working condition at the time of the incident. He further denied the suggestion that no such incident took place at any point of time and that is why he had not recorded the statement of any public person or that he had not carried out the investigation in fair and proper manner.
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 13 of 29
15. PW-6 Inspector Sandeep Malik deposed that he was marked the investigation of the instant case in June, 2017 and during investigation he tried to search CCTV camera/ footage but was not able to find out the same as the camera was stated to be not working. He further deposed that he was told the same by the President of the RWA. He further deposed that he collected the final opinion on the MLC of the injured and also recorded the statement of Mrs. Manju and Mr. Ashok u/s 161 CrPC. He further deposed that after discussing with seniors he added section 509 IPC and after investigation filed the charge-sheet before the court.
PW-6 in his cross-examination by Ld. defence counsel deposed that he did not remember the exact date when the matter was marked to him. He further deposed that he had not inquired the guard posted at guard room near gate number 03 which is near the place of the incident. He further deposed that the matter was marked to him after nearly one year from the date of the incident and that is why he did not get the MLC of the wife of the complainant done. He further deposed that the doctor in MLC of injure deposed that injury was simple but he had not enquired from the doctor as to how the same can be caused. He stated that he did not get the statement of Smt. Manju under Section 164 CrPC recorded. He further deposed that he later filed the same by way of supplementary charge-sheet. He further deposed that he had not inspected any duty register as to the duty of guards in the society and the guard room during the course of the investigation. He further deposed that he did not make any site plan on the statement of complainant Manju. PW-6 accepted as correct the suggestion that there was one complaint by Sh. Ashok against the accused. Ld. defence counsel also placed a copy of the FIR bearing number 331/2017 PS Dwarka North. He further deposed that he FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 14 of 29 had recorded the statement of Sh. Ashok on 23.06.2017 in this case. He further deposed that SI Hitender was marked the PCR call vide DD number 9A but he was not made a witness in the list of prosecution witnesses. He voluntarily added that SI Hitender had not done any investigation in the instant case. He lastly denied the suggestions as to biased investigation, etc.
16. Accused in his statement recorded u/s. 313 CrPC denied the evidence that has come on record against him. Accused examined two witnesses in his defence.
17. DW-1 Sh. Shrikant deposed that he used to provide the security services to the society in the year 2016 and that he used to provide guards at three posts for twenty-four hours. However, he had no personal knowledge of the case.
In his cross-examination by Ld. APP for the State he deposed that he was not present at the spot at the time of the incident and during investigation he had not provided any document to the IO with regard to providing his services to the society namely Gangotri apartments.
18. DW-2 Sh. Ajit Kumar deposed that he was residing in the Gangotri apartments at the time of his deposition and was the president of the RWA on the date of his deposition. He further deposed that there are four gates in the society which are manned by four guards. He further deposed that at the time of the incident the CCTV camera was installed at the gate number 03.
In his cross-examination by Ld. APP for the State DW-2 deposed that he was not present at the spot at the time of the incident.
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 15 of 29
19.In the present case, charge for offences punishable under Sections 323/341/506/509 IPC was framed against the accused.
20. Section 323 IPC provides punishment for voluntarily causing hurt. Voluntarily causing hurt has been defined in Section 321 of IPC. Section 319 of IPC defines hurt. Section 341 IPC provides punishment for wrongful restraint. Section 339 IPC defines wrongful restraint. Section 506 IPC provides punishment for criminal intimidation, whereas it is defined under Section 503 IPC. Section 509 IPC provides punishment for uttering word, or gesture or act intended to insult the modesty of a woman.
21. I have carefully gone through the aforesaid sections of law and the same are not repeated herein for the sake of brevity.
22. In the present case, prosecution was under an obligation to prove the essentials ingredients of the said offences in order to bring home the guilt of accused.
23. First and foremost before proceeding further, this court deems it appropriate to see if the aspect of delay in registration of FIR has been duly explained by the prosecution. It is the story of prosecution that the alleged incident took place on 04.07.2016 at about 10:45 PM and it is also an admitted fact that the FIR was lodged on 26.07.2016 at 09:15 PM i.e., after a delay of more than twenty days. It further needs to be appreciated that the said delay in lodging of FIR has not even been explained by the prosecution despite of testimony of 06 prosecution witnesses. It has only been stated by the complainant that his FIR was registered after he pursued it with the ACP. However, upon a perusal of the entire charge-sheet and accompanying documents it is revealed that the complainant or the IO has FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 16 of 29 not placed on record any written complaint to the SHO of the PS or the ACP having jurisdiction, with which he had or may have approached the concerned SHO or the ACP prior to registration of FIR. Thus, putting the very claim of the complainant in shadow of doubt.
The complainant had deposed in his examination that he had received the treatment for his injury and thereafter he was relieved from the hospital. It is not the case of the prosecution that the complainant was admitted in the hospital for long. However, the complainant seems to have not acted upon the incident. It is pertinent to note herein that two DD entries, one bearing number 51A of date 04.07.2016 and the other DD entry bearing number 09A of date 05.07.2016 have been annexed with the charge-sheet and the same were marked to SI Hitender Singh, who may have investigated or atleast inquired upon the same. However, for the reasons best known to them, the IOs, have not made SI Hitender a witness of this case even though he was the first person who took the complainant to the hospital for treatment. This court is of the view that prompt registration of the FIR of the incident was withheld, which raises questions of embellishment and thus raises the question that the complaint is a creature of an afterthought. The prosecution has nowhere bothered to explain the said delay in lodging of the FIR and a perusal of the complaint of the complainant also reveals that he had taken the first step after about twenty days atleast. It is hard to fathom as to what had caused such inordinate delay for giving the information and also lodging of FIR by the complainant. Hon'ble Supreme Court in the case of Satpal Singh v. State of Haryana, (2010) 8 SCC 714, wherein it was held that:
FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 17 of 29 "Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety."
In the instant case, the prosecution has not clearly explained the inordinate delay in lodging of the instant FIR and this delay coupled with the fact that SI Hitender who reached the spot upon receipt of DD entries (as aforesaid) or the police official who accompanied the injured/ complainant to the DDU hospital are also not made a witness by the IOs; raises serious questions of embellishment and cannot be lost sight of by this court.
24. Another aspect that needs to be appreciated at this very stage is the presence of PW-3/ Mr. Ashok at the place of the incident. PW-3 stated in his deposition that after the police came, he left the spot. He also deposed that the police had enquired from him about the incident and recorded his statement on the date of the incident, yet there is no mention of him till about one year later from the incident. Furthermore, there is not FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 18 of 29 even a single word regarding Mr. Ashok in the entire complaint of the injured or in his supplementary statement. It needs to be mentioned herein that if PW-3 Ashok, would have been present at the spot, he would have atleast accompanied the injured to the hospital or if not; the complainant would have named him in his complaint, which was admittedly lodged after about 20 days from the date of the incident. Another aspect which needs to be considered is that both PW-1 and PW-3 were part of the same RWA governing body and working as Joint Secretary and Vice-president at the time of the incident. Thus, their proximity cannot be outrightly rejected. Hence, considering the proximity of the complainant and PW-3, his very presence at the spot of the incident as claimed by them appears to be highly suspicious. If the said witness was at the spot, why he did not accompany the complainant with the police to the hospital from the place of incident. It is also not understandable as to why none of the eye- witnesses met SI Hitender who was inquiring upon the DD entries or the IOs who were in-charge of the case till about one year from the date of the incident. On account of repetition it is interesting to note that PW-3 was eye-witness to the incident but his name does not appear in investigation till approximately after 12 months of the incident. Moreover, the Ld. defence counsel has also placed on record the copy of FIR registered by the PW-3 against the accused, thus raising suspicion of prior enmity between the witness Mr. Ashok and the accused.
PW-3 is apparently planted witness. FIR is not recorded on his statement. His statement was recorded admittedly on 23.06.2017 i.e., about one year after the date of the incident, the presence of PW-3 at the spot is highly doubtful. No independent/ public witnesses have been examined by the prosecution even though the alleged incident had taken place around 11 FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 19 of 29 PM in the society, in summer season when generally several residents walk in the societies after dinner.
25. The testimony of PW-4, PW-5 and PW-6 is of formal nature. The testimonial examinations of PW-1 and PW-2 are most important in the present case.
26. A careful perusal of the testimony of PW-1 vis-a-vis the aforesaid sections of law shows that PW-1 in his testimony recorded in court had failed to state/ depose that he was wrongfully restrained by the accused at the time of the incident. PW-1 merely stated that he met the accused in the corridor of the society in front of his flat when the accused gave him a fist blow, whereupon he fell on the ground and got seriously injured. PW-1 in his entire testimony had not stated even a single word about him being restrained by the accused or being prevented from moving in any direction. The testimony of PW-2 is also silent in this regard. In view of the aforesaid facts and circumstances, I am of the considered view that the prosecution has failed to prove all the essentials ingredients of the offence punishable u/s. 341 IPC beyond reasonable doubt.
27. Furthermore, with regard to the offence under Section 506 IPC, it needs to be seen as to whether the testimony of PW-1 and PW-2 satisfy the ingredients of Section 506 IPC or not. 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 FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 20 of 29 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 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."
In the instant case, the witnesses have nowhere testified regarding any threat issued by the accused to the complainant or his co- complainant i.e., his wife. A perusal of the testimonies of the prosecution witnesses reveals that there is not even a word deposed by the witnesses regarding any threat issued by him. Furthermore, what needs to be appreciated is that a mere threat if at all issued would also not be sufficient to amount to an offence under Section 506 IPC as the threats issued to the FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 21 of 29 complainant must also be sufficient to cause an alarm to the complainant. However, in the instant case the testimony of PW-1 and PW-2 does not suffice the ingredient of any of the section 506 IPC. Thus, I am of the considered view that the prosecution has also failed to prove all the essentials ingredients of the offence punishable under Section 506 IPC beyond reasonable doubt.
28. Now, coming on to the offence under Section 509 IPC. 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. State of Kerala (16.02.2005 - Crl. M.C. No. 9717 of 2002, Hon'ble HC of Kerala), 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." 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). Thus, the offence under the section 509 of IPC will be attracted if a person FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 22 of 29 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. (M.M. Haries supra).
A perusal of the testimony of PW-1 and PW-2 would reveal that only PW-2 i.e., Mrs. Manju is the eye-witness of alleged act of words uttered by the accused intended to insult her modesty, which were made by the accused to her. In regard to the same, it needs to be appreciated that the said allegations of abusive words intending to outrage the modesty of Mrs. Manju being uttered by the accused have come to the fore only at the time of registration of FIR. A perusal of the DD entries as aforesaid would reveal that there is no word about any such utterances to the co- complainant in them. Furthermore, on account of reiteration it needs to be appreciated that the co-complainant was also not examined during investigation by the IO till about 1 year from the date of the incident and only then the nature of such utterances has come on record. This court is of the view that non-reporting of the specific utterances by the co- complainant till about one year after the alleged date of incident cannot sideline the high probability of embellishment in such a case. Furthermore, Mrs. Manju has also not specifically stated the utterances even in her examination under Section 164 CrPC and the first time she deposed about the same was in her testimonial examination before the court.
This court also cannot lose sight of the fact that the IO had not examined any public person i.e., the neighbours or any other member of the society of the complainant who may have heard any such utterances; hence, raising pertinent questions regarding the very occurrence of the FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 23 of 29 incident in question. Moreover, PW-2 firstly in her examination-in-chief deposed that her statement was recorded on the day of the incident itself but later she improved and deposed that it was recorded on 23.06.2017. Upon a perusal of the testimony of PW-2, this court is also astonished to see that the co-complainant was able to exactly remember the date on which her statement under Section 161 CrPC was recorded but was not able to tell the date on which her statement under Section 164 CrPC was recorded, thereby raising question as to prior tutoring and improvements. Moreover, co-complainant Mrs. Manju was also not taken to the medical even though as per the prosecution story she had allegedly fallen due to the thrust and action of the accused, thereby raising question upon her presence at the both the spots.
Lastly, in the context of this case and in light of aforementioned judgments of Hon'ble HC of Kerala and Hon'ble SC case it also needs to be appreciated that a 'verbal abuse' has to be differentiated from utterances outraging modesty of a woman. 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.
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 FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 24 of 29 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 by superior courts in a catena of judgments, the essence of a woman's modesty is her sex. The alleged abusive language, if at all made, 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.
In view of the aforesaid facts and circumstances, I am of the considered view that the prosecution has also failed to prove all the essentials ingredients of the offence punishable u/s. 509 IPC beyond reasonable doubt.
29. Lastly, coming on to the charge of Section 323 IPC famed against the accused. To decide whether the accused is liable to be convicted for offence punishable under Section 323 IPC or not, reference to Section 319 IPC is essential. Section 319 IPC defines hurt and it lays down that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. A bare perusal of Section 319 IPC clearly shows that even causing bodily pain falls within the ambit of Section 319 IPC and if the said bodily pain is caused voluntarily then the said offence is punishable under Section 323 IPC. No particular kind/ nature of injury is required/ essential for attracting the provisions of Section 323 IPC.
There are contradictions in the testimonies of PW-1 and PW- 2, while PW-1 deposed that the accused gave a fist blow on his face and then went running away from the spot, PW-2 deposed that when she came FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 25 of 29 downstairs upon hearing the cry for help of the injured/ her husband she saw that the accused was beating her husband. In the same vein, it also needs to be appreciated that PW-2 deposed that she heard the cry for help of her husband from her house thus making it highly improbable that other neighbours who were in the apartments right opposite to theirs would not have heard it.
30. Furthermore, the defence has the plea that the IO had purposefully not placed on record the CCTV footage of the spot as it would have exculpated the accused. However, it has been argued by Mr. Mihir Samson, Ld. counsel for the complainant relying upon the judgment of Arun Kumar vs State (2018) SCC Online Del 7852 that the pronouncement of Hon'ble SC in the case of Tomaso Bruno vs State (2015) SC would not be applicable to the facts of the instant case and no adverse inference can be drawn against the prosecution in otherwise established chain of circumstances. In light of the said discussion it needs to be appreciated that the complainant himself was placed at an important position in the RWA at the time of the incident and has very conveniently stated that the CCTVs at the spot were not working on the date of the incident. However, neither the IO nor the complainant has placed on record any complaint of the then RWA regarding the said malfunction to any authority or dealer. Furthermore, the IO has not placed on record any statement of concerned person stating that the cameras were not working on the date of the incident. Thus, raising very valid doubts regarding the said stance of the prosecution that the CCTV cameras were not working on the date of the incident.
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31. Furthermore, another aspect which needs to be appreciated is that the complainant in his testimony has deposed that the spectacles worn by him at the time of incident got broken due to the sheer force with which he was beaten/ punched by the accused. In light of the same, it needs to be appreciated that the said broken spectacles were never collected by the IO during the entire course of investigation and the same were also not produced by the complainant at the time of his testimony in the court. Thus, raising questions regarding the aspect of allegation that his spectacles got broken during the incident.
32. Another aspect/ lacunae in the prosecution case which has also been dealt with hereinabove in preceding paragraphs but considering its importance needs to be appreciated is that the IOs have not made the first police personnel who was marked the instant inquiry upon receipt of DD number 9A dated 05.07.2016 as a witness in the instant case also raises several questions regarding the shoddy investigation which has been carried out by the IOs. Moreover, HC Rajveer whose name appears on the MLC of the accused also has not been cited as a witness by the prosecution nor has ever been examined by the IOs.
33. Furthermore, non-citing of any public person as a witness in the case other than Mr. Ashok (whose presence at the spot itself was questionable) also raises several questions regarding the prosecution story and the nature of investigation carried out by the IO who have for the reasons best known to them stopped short of making efforts to collect the best evidence in the instant case, where primarily the FIR was lodged after considerable delay and there is prior enmity between the parties. The IO did not even record the names and details of such witnesses, who could FIR No.369/2016 State Vs. Rakesh Dhyani Page no. 27 of 29 have been easily summoned for evidence during the trial. All the prosecution witnesses who have been examined as eyewitness to the incident are complainant and other interested witnesses. It needs to be appreciated that non-examination of independent witnesses per se is not fatal to the case but in this matter which is alleged to have occurred in residential area around 10:45 pm to 11:00 pm, the investigating officer could have taken on record statements of the witnesses and produced them before the court. Furthermore, the absence of any independent witnesses and material inconsistencies in the testimonies of PW-1 and PW-2 further shakes the very foundation of the prosecution case.
34. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 323 of the IPC beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The testimony of the PW-1, PW-2 and PW-3 is highly doubtful and unreliable because of the material improvements and inconsistencies as mentioned hereinbefore. The investigation has deficiencies on material points. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused persons beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused persons. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused persons. In light of the same, the prosecution has not been able to establish the ingredients of Section 323 IPC against the accused.
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35. Resultantly, the accused is entitled for benefit of reasonable doubt and is hereby found not guilty. He is hereby ACQUITTED of the offence under Section 323/341/506/509 of the Indian Penal Code, 1860. File be consigned to record room after due compliance.
Announced in the open Court Digitally signed by
SANKALP SANKALP KAPOOR
today i.e. on 06.10.2023. KAPOOR Date: 2023.10.06
16:33:35 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
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