Delhi District Court
State vs . Sudhir Kumar on 10 October, 2011
1
IN THE COURT OF MS. PRIYA MAHENDRA
METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
SAKET COURT COMPLEX : NEW DELHI.
STATE Vs. Sudhir Kumar
FIR No.291/05
P.S. : Vasant Vihar
U/S 509 IPC
THE JUDGMENT
1. DATE OF INSTITUTION OF CASE :26.06.2006
2. SERIAL NUMBER OF THE CASE : 557/2
3. DATE OF COMMISSION OF OFFENCE : 28.06.2008
4. NAME OF THE COMPLAINANT :Ms. Meenakshi
5. NAME OF THE ACCUSED & ADDRESS : Sudhir Kumar s/o Sh.
Sudama Singh,
R/o Room No. 30,
Chanderbhaga Hostel,
JNU, New Delhi.
Permanent address:
Mohalla Baramsiya,
PNT Chowk, Katiyar,
Distt. Katiyar, Bihar
St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 2 6. OFFENCE COMPLAINED OF :U/S 509 IPC 7. THE PLEA OF THE ACCUSED : Pleaded not guilty. 8. DATE OF RESERVE OF JUDGMENT : 10.10.2011 9. THE FINAL JUDGMENT : Acquitted 10.THE DATE OF FINAL JUDGMENT : 10.10.2011 BRIEF REASONS FOR DECISION OF CASE:
1. The case of the prosecution is that in the period of June to July 2005, the accused used to send indecent/vulgar SMS and email to the complainant Ms. Meenakshi and was also making unwanted calls from No. 09431154776. Thereafter, the FIR was registered on the complaint of the complainant against the accused and investigation was carried out.
2. Charge sheet under Section 509 IPC was filed in the court, accused was supplied the documents in compliance of section 207 Cr.P.C and vide order dated 28.06.2008, notice for offence under Section 509 IPC was served on St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 3 accused, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined eight witnesses and the prosecution evidence was closed vide order dated 16.05.2011.
4. PW1 W/ASI Rajni, deposed that on 05.08.2005 she was posted as Duty Officer at PS Vasant Vihar, from 08.00 a.m. to 04.00 p.m.. At about 02.40 p.m. she received a Rukka through constable Subhash. On the basis of Rukka he registered FIR No. 291/05 U/S 509 IPC which bears her signatures at point A. She has brought the original FIR which is in his hand(Original seen and returned). Carbon copy of FIR is Ex. PW1/A and her endorsement on Rukka is Ex. PW1/B which bears his signature at point A. After registration of FIR, she handed over the carbon copy of FIR and original Rukka to Ct. Subhash for handing over the same to SI Ram Avtar. In her crossexamination she denied the suggestion that FIR registered is anti dated and anti time.
5. PW2 Const. Dharambir deposed that on 05.08.2005 he was posted at PS Vasant Vihar as constable and on that day he was on emergency duty from St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 4 08.00 a.m. to 08.00 p.m. On that he joined investigation of this case along with IO and he along with IO reached at JNU, where accused Sudhir Kumar was arrested vide arrest memo Ex. PW2/A, who is present in the court, at the instance of complainant Meenakshi, his personal search was conducted vide memo Ex. PW2/B. On interrogation accused made disclosure statement, which was reduced in writing, same is Ex. PW2/C. Two mobiles phone one belonging to complainant Meenakshi and another was of accused were kept in two separate pullandas and both were sealed with the seal of SAS and after use seal was handed over to him. Mobile phones were taken in possession vide memo Ex. PW2/D and PW3/E bearing his signature at point A respectively. All memos bear his signature at point A. He can identify the said mobile phones if shown him. He identified the both the mobiles phones Ex. P1 and P2. In his crossexamination, he deposed that disclosure statement was recorded in PS. He does not remember whether any independent witness was associated at the time of disclosure statement by the IO or not. He does not remember whether IO obtained any ownership proof for the mobile from the complainant or accused in his presence. He does not remember which mobile belong to whom. He does not remember whether any memo was prepared by the IO for handing over the same or not. After reaching the PS he deposited the same in Malkhana. He does not remember whether any entry was made by the Malkhana Moharar at the time St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 5 of depositing the seal. He does not remember whether IO recorded the statement of any witness in JNU except complainant. He cannot tell what statement of the complainant was recorded as he does not know English. He does not remember whether personal search was conducted in JNU or not. He does not remember whether the other papers of the proceedings were prepared in PS or in JNU. He denied the suggestion that he has not joined the investigation or he is a planted witness. He denied the suggestion that no mobile was seized from the accused. HE further denied the suggestion that he has been planted as a witness later on at the instance of IO. He denied the suggestion that he is deposing falsely.
6. PW 3 Ms. Meenakshi Kumari, deposed that on 30.07.05 she has given complaint against accused Sudhir Kumar present in the court today. She was having mobile Phone which has number 9350184808. On her mobile phone she received obscene messages and threatening calls from the number 9350968998 which belongs to accused. She and the accused were the class mates of JNU, studying in Mphil. The details of all the said messages have been mentioned in her complaint given to the police. She also received calls and messages from the side of the accused not to appear in the Mphil examination. Her complaint is Ex. PW3/A which bears her signatures at point St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 6 A. The accused present in the court was arrested and his personal search was conducted by the IO in her presence Ex.
PW2/B which bears her signatures at point B. Arrest memo of the accused was also prepared by the IO in her presence Ex. PW2/A which bears her signatures at point B. The mobile phone of accused was also seized by the IO in her presence vide memo Ex. PW2/D which bears her signatures at point B. Her mobile phone bearing number 9350184808 was also seized by the IO vide memo Ex. PW2/E which bears her signatures at point B. She further deposed that she can identify the case property if shown to her. Thereafter two mobile phones were taken out on seeing the same witness has correctly identified, same is Ex P1 and P2. In her crossexamination by ld. defence counsel she deposed that she does not know the name of the person who has conducted proctorial enquiry in the JNU which finds mention in her complaint. She voluntarily stated that the said enquiry was initiated against the accused by her and it is generally conducted by the administration branch of JNU. She know the names of the Prof. before whom the accused accepted his guilt. The name of the Prof. are Sh. Ganga Nath Jha, Madam Manmohini Kaul, etc. The content of the letters and the SMS sent to her by the accused were similar. The accused has given his apology in written to the Professors and to the Proctor. It has already been confirmed from the Reliance Company that the number 9350968998 is in the name of St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 7 the accused. IO obtained the documents from the Reliance Company that the said number belongs to the accused. The statement of Laxmi Didi was not recorded by the IO in her presence. The accused has also sent email on my mail id. She denied the suggestion she has not given any email to the IO which was sent by the accused to her at her email ID. She does not know to whom mobile number 09431154776 belongs. She also does not know the said number pertains to which State. She signed on arrest memo, personal search, seizure memo's. She know the meaning of seizure. While the seizure memo of phones were prepared, some initials were put by the IO in her presence. She does not know that the seal after use was handed over to whom. She visited many times to PS in connection with the present case. She alongwith her some college friends visited to PS. The statement of her friends who were visiting to PS were not recorded. She has herself typed her complaint in cyber cafe near to JNU which was given to the IO. No friends were present when she handed over my complaint to the IO. She denied the suggestion the mobile in question does not belong to the accused. She denied the suggestion that no SMS was sent by the accused on her mobile phone. She further denied the suggestion that that she is deposing falsely.
7. PW 4Ct. Omhari, deposed that on 26.10.05 he was posted at PS Vasant St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 8 Vihar, on that day he received two sealed mobile phones with the seal of RAS from the MHCM. On 24.10.05 the said mobile phone were deposited vide road number 66/21 CFSL office (Government Examiner for question documents section) Hyderabad. So long as the case property remained with him nobody has tempered the same.
8. PW5 Retired SI Ram Avtar, deposed that on 05.08.05 he was posted at PS Vasant Vihar as a SI. On that day on receipt of complaint by the complainant Meenakshi, the said complaint was marked to him for investigation. He arrested the accused Sudhir Kumar present in the court today vide arrest memo Ex. PW2/A which bears his signatures at point C. He conducted the Personal Search of the accused vide memo Ex. PW2/B which bears his signatures at point B. The accused made his disclosure statement. He recorded his disclosure statement same is Ex. PW2/ C which bears his signatures at point B. The mobile phone of accused Sudhir Kumar bearing number 9350968998 was taken in possession by him vide memo Ex. PW2/D which bears his signatures at point C. He also seized the mobile phone bearing number 9350184808 of the complainant same is Ex. PW2/E which bears his signatures at point C. Both the mobile phones were sealed in the sealed pullanda with the seal of RAS. Seal after use was handed over to Ct.
St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 9 Dharamvir. The case property was deposited in the Malkhana. He recorded the statement of witnesses. He deputed the Ct. Omhari for depositing the mobile phones in CFSL department Hyderabad. He also obtained the result of CFSL after completion of investigation the challan was filed. He can identify the mobile phones if shown to him. The mobile phones were shown to the witness and were correctly identified by him and same is Ex. P1 and P2. In his crossexamination, he deposed that he had not recorded the statement of any person from Sabarmati Hostel. He never met to the warden of that hostel. He has not seized any ownership proof of the mobile from accused Sudhir or complainant Meenakshi. No one accompanied with the complainant when she came to the police station to file her complaint. He denied the suggestion that complainant had come with 4/5 friends to lodge the complaint. He never met to the proctor of the college. He never met to Prof. Ganga Nath Jha and Madam Manmohini Kaul regarding this case. He never verified the number 9350968998 from reliance company whether it is in the name of the accused or not. He voluntarily stated that although he received the call details of both the mobile numbers from reliance company. He did not collect any detail of email from the accused as well as from the complainant. He voluntarily stated that he received the complaint regarding SMS only. He never received any email address from the complainant. He never verified the mobile no. 09431154776, on whose name this number is running or to whom St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 10 it belongs to. He does not know whether the complainant visited in the PS after registration of the present case or not. He denied the suggestion that the complainant came to PS with her friends and he voluntarily did not record their statements. SHO received the complaint and after registration of the case investigation was handed over to him. Complainant never furnished any ownership proof of mobile no. 9350184808 to him. He denied the suggestion that he knowingly and voluntarily not enquired about the said numbers which have been mentioned in the complaint as one belonged to complainant and another belonged to accused. He denied the suggestion that he had not properly investigated the matter. He denied the suggestion that he has not got recorded the statements of other witnesses either from the college or from the hostel and falsely implicated the accused in the pressure of SHO. He denied the suggestion that he is deposing falsely.
9. PW6 A.K. Singh deposed that on 24.10.05 he was posted as Assistant Government Examiner. On that day two mobile phones make Nokia models 2280 and 2112 were received in CFSL, Hyderabad for examination. After examination of the said mobile phones report was prepared by him which is Ex. PW6/A bears his signatures at point X. The annexures regarding examination of said mobiles are attached with the report. The annexures are St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 11 collectively Ex. PW6/B.
10.PW7 HC Bhagwan Sahai deposed that on 06.08.05 he was posted as MHCM at PS Vasant Vihar. On that day case property of the present case i.e two sealed pullandas with the seal of RAS was deposited in Malkhana vide serial no. 1165 photocopy of the said entry in register 19/05 is Ex. PW7/A (OSR). On 21.10.05 Ct. Om Hari came to him with pullandas with the seal of RAS for sending the same in CFSL, Hyderabad. He had given road no. 66/21 to Ct. Om Hari and thereafter, copy of the said road no. 66/21 was returned back to him by Ct. Om Hari. He has brought the original road no. 66/21 copy of the same is Ex. PW7/B (OSR).
11.PW8 Retd. ASI Roshan Lal deposed that on 07.05.2005 he was posted as Duty Officer at PS Vasant Vihar. At about 03.25 a.m. He received a rukka sent by SI Chander Bhushan. On the basis of rukka he registered FIR no. 202/05 U/s 328/509 IPC. He has brought the original FIR which is in his hand (OS&R). Carbon copy of FIR is Ex. PW8/A bearing his signatures at point X. After registration of FIR he handed over the carbon copy of FIR and original rukka to Ct. Ganga Ram for handing over the same to SI Chander St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 12 Bhushan.
12.The statement of accused was recorded u/s 313 Cr.P.C., in which he denied all the allegations leveled against him and stated that he and complainant were classmates. He never harassed the complainant. In fact they used to prepare for their exams together. He refused to prepare for one exam along with her and that miffed her. Consequently, she filed this false case against him. The telephone number does not belong to him. The accused has opted not to lead DE.
13.The counsel for accused has contended that the accused has been falsely implicated in the present case and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. On the other hand, Ld. APP for State has contended that sufficient material has been placed on record by the prosecution to bring home the guilt of the accused beyond reasonable doubt and is liable to be convicted u/s 509 IPC. I have heard the rival contentions made at bar and also meticulously perused the record.
14.In the present case accused in my considered opinion is entitled to acquitted St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 13 in the present case for following reasons.
15.The case of the prosecution as revealed from the testimony of the complainant is that accused was sending obscene messages to the complainant on her mobile no. 9350184808 from his mobile phone 935096898. The prosecution has not placed any material on record to show that mobile number 935096899 was subscribed or used by the accused at the relevant time. IO during his cross examination admitted that he never verified the number from reliance company whether the said number is in the name of accused or not. He also admitted that complainant never furnished ownership proof of her mobile number 9350184808 to the IO. Thus there is nothing on record to connect the accused with the offence.
16.Further the mobiles in question sent to CFSL received back with the report that SMS/messages could not be retrieved from the mobile phones and the said report of CFSL was duly proved on record as PW6/A. Moreover the complainant in her testimony has not specially stated that contents of the messages which have been received by her on her phone from the mobile phone of the accused. Therefore contents of messages are not proved by the St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar 14 prosecution. Thus the essential ingredient of proving the offence u/s 509 is also missing. I am therefore not hesitant to conclude that the accused is entitled to be acquitted. Therefore, accused Sudhir Kumar is acquitted for the offence under Section 509 IPC. Bail bond is cancelled and surety stands discharged. Endorsement, if any, be cancelled. File be consigned to record room.
Announced in the open court on this th 10 day of October, 2011 (PRIYA MAHENDRA) Metropolitan Magistrate:
Mahila Court South Delhi, Saket Court Complex, New Delhi.
St. Vs. Sudhir Kumar FIR no. 291/05 P.S. Vasant Vihar