Delhi District Court
Doubts On The Credibility Of Pw1. In ... vs . State Of Karnataka, Air 2008 on 15 July, 2021
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS, DELHI
STATE
VERSUS
OM PRAKASH KATARIA
Computer ID No. 65734/2016
FIR No. 1156/2015
P.S. Tilak Nagar
U/S 506/509 IPC
Ms. Vandana Gogia
W/o Sh. Rajeev Gogia
R/o WZ-23A, Krishna Puri,
Tilak Nagar, New Delhi.
... Complainant
VERSUS
Om Prakash Kataria
S/o Late Sh. Lalu Ram Kataria
R/o WZ-23A, Krishna Puri,
Tilak Nagar, New Delhi.
...Accused
Date of Institution : 19.11.2015
Date on which judgment was reserved : 08.07.2021
Date of judgment : 15.07.2021
Final Order : Convicted
JUDGMENT
The important facts of the present case are as follows :-
1. In the instant case, accused namely Om Prakash Kataria has been set up by the prosecution to face trial on the allegations that on 31.07.2015, the accused had asked the complainant to change the Chadar (bedsheet) in the temple, situated in his house and when the complainant did not do the same, the accused had telephonically abused the father-in-law of the complainant by calling bad names and had also insulted the complainant. At the same time, the accused was alleged to have threatened the complainant to get her falsely implicated in a false case and therefore, the accused was alleged to have committed offences punishable u/s 509/506 IPC.
2. The FIR was lodged at the instance of complainant Ms. Vandana Gogia against the accused by name in respect of offences punishable u/s 509/506 IPC. On conclusion of investigation, challan u/s 173 Cr. P.C was filed against the accused Om Prakash Kataria u/s 506/509 IPC.
3. Cognizance was taken against the accused by the then Ld. MM- 05 on 19.11.2015 and the accused was summoned. In the light of the above stated facts and proceedings and after making compliance of provisions of section 207 Cr.
P.C vide order dated 10.07.2017, charges u/s 506/509 IPC was framed against the accused Om Prakash Kataria by the then Ld. MM-05, to which the accused pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence. The prosecution examined 5 witnesses to bring home the guilt of the accused.
5. PW-1/complainant namely Ms. Vandana Gogia deposed that in the month of July, 2015, she had joined computer related office work at the office of the son of the accused namely Chanchal @ Bunty Kataria and that the said office was nearby her house. She deposed that her work was only relating to the printing of the bills and that she was not having any dealing with the customers. She further deposed that on 06/07.08.2015, when she was in the office and had opened the door for receiving courier, she found the accused was standing with the courier boy. Thereafter, she greeted the accused who was standing there, by touching his feet but the accused did not give any reply to her. Thereafter, she took the parcel and kept the same inside the office. When she came back to close the door, the accused was still standing there and the accused enquired regarding the reason for her presence at the office. In reply, PW-1 told the accused that she was working in the office. At that time, the accused directed PW1 to visit his house on the coming Sunday for changing the sheets of the Mandir which was being maintained in the house of the accused. However, PW1 did not give any reply to the accused and when PW1 failed to give reply, the accused said to PW1 that the accused shall be paying her for changing the sheets, as directed. Subsequently, on that day, PW1 left for her house. On the subsequent day, it was holiday being Sunday. PW1 further deposed that when she went for the work again on Monday, she met the wife of accused namely Lacchi Bhabi outside the office who was found to be sitting along-with one another lady. The wife of accused had asked PW1 whether everything was alright at her house to which PW1 replied that everything is fine. Thereafter, the wife of accused had told PW-1 that her younger son namely Bhanu had heard the accused abusing the father-in-law of PW-1 over the telephone. Subsequently, in the evening, when PW1 had reached back home, she enquired regarding the incident, which was disclosed by the wife of the accused, from her husband. PW1 was told by her husband that everything will be looked after by the community people and PW-1 need not worry. It was the version of PW1 that on the next day, she came to know from her husband that some of the elder persons of the family had visited the accused and that the accused also abused them and that they had also came back. PW-1 was also told by her husband that the accused had used abusive language against the father-in-law and the family of PW1 as she had not visited the house of accused on Sunday as the accused had directed. On a subsequent date of hearing, when PW-1 was recalled for further examination-in- chief, she deposed that the accused had enquired from her father-in-law regarding the reason for PW-1 not visiting the house of accused. To which, PW1/her father-in- law had replied that PW-1 would not be visiting the house of accused as the accused was living alone. Thereafter, accused further stated to the father-in-law of PW-1 that she had visited his house earlier also. In reply, her father in law had told the accused that on earlier occasions, PW-1 had not come alone and that PW-1 had come along with some other women (bhajan mandli).On hearing this, the accused had started using filthy language against her father-in-law and had threatened the father-in-law of PW1 to the effect that he (Father-in-law of PW1) should stop PW1 from going to the office, otherwise, the accused will get the office raided for the reason that PW-1 was doing wrong work (galat kaam). On the same night, PW-1 had posted a message on the Facebook regarding the misdeed and behavior of accused. Thereafter, on the next day, she had along-with her husband went to the house of accused namely Om Prakash Kataria and knocked the door of his house. However, the accused did not open the gate and came in the balcony and started abusing her/ PW1 and husband. In the meantime, wife and son of the accused (who were living on the ground floor of the same house) came there and stood in favour of PW1. In the meantime, Bunty @ Chanchal Kataria (other son of accused) also came there and supported PW1. The said Bunty Kataria had also asked his father/ accused as to why the accused was abusing or threatening PW-1. After sometime, third son of accused also reached at the spot and he also stood with her. It was the version of PW1 that somebody had called at number 100 and therefore, police officials reached at the spot and tried to pacify the matter but accused did not stop and kept on abusing her and other persons, who were standing there. Thereafter, PW1 recorded her statement (Ex.PW-1/A) before a Police official. She also proved her statement (Ex.PW-1/B), recorded under section 164 Cr.P.C. during the course of investigation. During the course of her testimony, accused namely Om Prakash Kataria was correctly identified by the witness/PW1. Subsequently, after taking permission from the court, leading questions were asked by Ld. APP for the state from PW1 during her examination in chief. She admitted the suggestion of Ld. APP for the state, to the effect that the accused had asked PW-1 to come to his house and had also told PW1 that the accused would pay her and will not get the work done free, to be correct. PW1 also admitted the suggestion that on 31.07.2015, accused had asked her to come at the house of accused to change the chadar of the temple but she refused to go as the intention of the accused was not good, to be also correct. It is correct to suggest that the accused resides alone at his house. It is correct to suggest that there is one temple in the house of accused, where accused along with his friends used to drink liquor. It is further correct to suggest that after taking liquor, accused used to use abusive language against his family members. It is also correct to suggest that accused threatened her. It is also correct to suggest that she had handed over the reply on Facebook of accused namely Om Prakash Kataria to police officials.
6. In her cross-examination, PW-1 deposed that she knew the accused from the day, she got married in the year 2005 and that the house of accused is situated near her house as the distance between their houses is around 2 minutes of walking distance. She deposed that she was a graduate and that she had done work for 2-3 months in the office of Sh. Chanchal Kataria, which was by the name of "Kataria Tectorium" and that before joining the said office, she was sitting idle at her house. PW1 categorically denied the suggestion of the accused to the effect that before joining the office of Chanchal Kataria, she was a member of one Kirtan Mandali which was being run by Smt. Indu. She deposed that she knows Chanchal Kataria before joining his office since her marriage. When the accused inaugurated his new temple, she along with the Kirtan Mandali went to do pooja. It was her version that after the inauguration of the temple, she had never visited the temple thereafter as the said temple is not for the public. PW-1 further deposed that she does not know whether the accused had given any return gift to the members of the Kirtan Mandali or not. PW1 admitted the fact that on the day of inauguration, accused had not misbehaved with her and that before the inauguration, she had gone to decorate the temple along with one Indu, Veena Bhabhi, Suman Bhabhi and 2-3 children. She admitted the fact that that the day on which she along with the above said persons went to decorate the temple, accused did not misbehave with her. She categorically denied the fact that the accused had given money to all the persons who had decorated the temple before the inauguration. She deposed that she was called by the members of the kirtan mandali to decorate the temple and that she does not go to every place where the kirtan Mandali went for pooja and that the reason for visiting the house of the accused, where the temple was situated was that the said place was near to her house PW1 also admitted the fact that she had attended the retirement function of the accused. She also admitted the fact that the accused had never misbehaved with her prior to 31.07.2015. She also denied the fact that the door of the temple always remains closed. She also admitted the fact that she had not seen accused taking alcoholic drinks along with his friends in the temple. However, she had seen him when the accused had created nuisance. She categorically denied the suggestion of the accused to the effect that she had falsely implicated the accused in connivance with Sh. Chanchal Kataria i.e. son of accused. She also categorically denied the suggestion of the accused to the effect that the accused had never used abusive language against her or against her family members at any point of time. PW1 deposed that the complaint was filed by her after about 4-5 days because they were thinking of settlement with the accused but the accused was adamant and he refused to settle the matter. She deposed that she had not made a call at 100 number on the day of incident and that no other person except the courier man was present at that time of incident i.e. on 31.07.2015, and that the courier man came in the afternoon. She also admitted the fact that the accused never asked her to come alone at his house before the day of incident. It was also admitted by PW1 that she had posted comments against the accused on Facebook on 04.08.2015 in the late night and that she was subsequently stopped by her relatives to comment upon the accused. However, PW1 denied that she had posted comments on Facebook against accused in order to defame accused. She also deposed that her husband was along with her at that time when she had knocked the door of accused and when, the accused started abusing her and her husband. She deposed that nobody asked her about her identity when she knocked the door of the house of accused. It was her version that she came to know regarding the bad intentions of the accused, the way, the accused had asked her to come at his house alone and that the accused will pay her. It is incorrect to suggest that accused is a responsible member of the society or that in order to defame accused. PW1 repeatedly denied the suggestion of the accused to the effect that she had falsely lodged this case against accused in connivance with the son of accused namely Chanchal Kataria.
7. PW-2/Sh. Ved Prakash/father-in-law of the complainant deposed that in the year 2015, her daughter-in-law namely Vandana Gogia had joined the office of Sh. Chanchal Kataria and that the father of the said Chanchal Kataria namely Sh. Om Prakash Kataria/ accused had asked her daughter in law to change the clothes of the mandir and had also told her daughter-in-law that the accused will give money to her daughter in law for the same. He further deposed that when his daughter in law refused to do the same, thereafter, accused had called PW-2 and had asked PW-2 to tell his daughter in law to change the clothes of mandir, but he/PW-2 also refused the same. Thereafter, on hearing the same, the accused namely Om Prakash Kataria had told him/PW-2 that his daughter in law should not come for her job again and that he/accused also threatened PW2 that the accused will file a suit against him and his daughter-in-law. Thereafter, accused had also threatened PW-2 by saying that if his daughter in law came to the office, the accused will get the office raided where PW-1 does wrong work (galat kaam). He further deposed that the accused had also used filthy language against PW-2 and also abused PW-2. It was the version of PW2 that when the accused had again asked PW-2 to send his daughter-in- law to his house, PW-2 had replied to the accused that as the accused was staying alone in his house, therefore PW-2 will not send his daughter-in-law there. Thereafter, the accused again started abusing PW-2 on phone and created pressure upon PW-2 to send his daughter in law in the house. He deposed that his daughter-in-law posted a message on the Facebook regarding the misdeed and bad behavior of accused Om Prakash Kataria. Thereafter, the accused also used to threaten them several times. Thereafter, police recorded the statement of PW-2 under section 161 Cr. P.C. at PS Tilak Nagar. In his cross-examination, PW-2 deposed that he was working as a teacher and had retired in the year 2001 and that he knew the accused for the about 30 years. He deposed that he had visited the temple situated at the accused's house once, on the occasion of inauguration of the temple and that he never visited the house of the accused. He further deposed that his daughter-in-law namely Vandana Gogia had visited the house of the accused at the time of the inauguration of the temple along with the mandali of the locality. During his cross-examination, PW2 admitted the fact that that his daughter in law had gone to the temple for its decoration a day before the date of inauguration of the temple. However, as per PW2, her daughter-in-law had gone along with the mandali. He deposed that he had not gone along-with her, however, he had seen the decoration work and thereafter returned back. He also deposed that the accused had called him/PW-2 before the registration of FIR. He deposed that the accused had stated to him that he should not send his daughter-in- law to do job at his sons place and in reply, PW-2 had told the accused that his daughter in law was not working under the accused but was working under the son of accused. PW-2 had also assured the accused that he will not send his daughter in law to the temple alone and that she will go only along with the mandali. Thereafter, the accused had threatened PW-2 that if his daughter- in-law continued to work with the son of accused, the accused will implicate PW-2 in a false case. PW-2 had not called 100 number. PW-2 admitted the fact that he had not made any written complaint, however, the his son and daughter in law had made a written complaint later on. PW- 2 deposed that he was informed by his daughter in law about the objectionable contents posted by the accused on the Facebook against PW-1. PW2 categorically denied the suggestion of the accused to the effect that the accused had never asked PW-2 to send his daughter in law for work. PW2 admitted the fact that there was a senior citizen group of which he was a joint secretary and that the accused was also a member of that senior citizen group. He deposed that the said group remained in existence for around 10-15 years and that the name of the group was "Derewal Beradari". He deposed that the reputation of the accused in the said group was satisfactory at that time. PW2 deposed that whenever the accused was told to live peacefully with his family, he used to get agitated and did not listen to the group members and that he had not heard anything adverse against the accused during those 10-15 years. PW-2 also deposed that he had stated that accused was having bad intention against his daughter in law on the basis of the incident that took place. He also admitted the fact that he had attended retirement party of the accused. PW2 categorically denied the fact that the accused has been falsely implicated in the instant FIR.
8. PW3/ Ct. Lokender Singh deposed that at the relevant time, he was posted as a Constable in PS Tilak Nagar and had participated in the investigation of the instant FIR along with the IO. He proved the arrest memo Ex. PW3/A of the accused and his personal search Memo Ex. PW3/B. He deposed that the accused was arrested by the IO after interrogation on 13.08.2015. In his cross examination, PW3 deposed that the son of the accused was present at the address, from where the accused was arrested.
9. PW4/ SI Satpal Singh/ DO proved the FIR of the instant case. He deposed that he had recorded the FIR bearing No. 1156/ 2015, on receiving a rukka from SI Jai Singh. The copy of the FIR is Ex. PW4/A and the endorsement made by PW4 on the rukka is PW4/B. PW4 also proved the certificate u/s 65B of the evidence Act. The same is Ex. PW4/C.
10. PW-5/IO/ SI (Retd.) Jai Singh deposed that on 06.08.2015, when he was posted at PS Tilak Nagar as an SI, he was on emergency duty. On the said day, in the evening, complainant/PW-1 came to PS Tilak Nagar and gave her written complaint (Ex.PW-1/A). Thereafter, on the basis of the same, FIR of the instant case, was lodged by the Duty Officer. Thereafter, on receiving the copy of the FIR, PW-5 went to the spot along with the complainant at WZ-23A, S.No.8, Krishnapuri, Tilak Nagar, Delhi and had made enquiry from the family members and the neighbours. Thereafter, he had the recorded the statement of the father in law of the complainant/PW-1 under section 161 Cr. P.C. Subsequently, on 10.08.2015, the statement of complainant under section 164 Cr. P.C (Ex. PW1/B) was recorded by the concerned Ld.MM. Thereafter on 13.08.2015, the accused was arrested by him from his house and that he/PW-5 had along with Ct. Lokender personally searched the accused namely Om Prakash. During the course of his examination-in-chief, PW5 had correctly identified the accused. PW5 proved the arrest memo (Ex.PW-3/A) and personal search memo (Ex.PW-3/B) of the accused. Thereafter, the accused was released on police bail. He further deposed that during the course of investigation, PW-5 also recorded the statement of Ct. Lokender under section 161 Cr. P.C. After completing the investigation, PW-5 filed the challan in the Court against the accused. In his cross-examination, PW-5 deposed that he was present at PS Tilak Nagar when the complainant came along with three persons i.e. her father in law, her husband and the son of accused, to lodge her complaint on 06.08.2015. He deposed that on 06.08.2015 at about 09:00 pm, PW-5 went to the spot of occurrence and had met family members of complainant/PW-1. PW-5 deposed that he had not made any entry regarding his visit to spot of occurrence in his case diary. He also deposed that the neighbours had refused to record their statement when PW-5 had gone to on the spot. In his cross examination, PW5 admitted the fact that the incident had occurred on 31.08.2015 and that there was a delay in the registration of the said complaint. PW5 deposed in his cross examination that he had enquired from the complainant/PW-1, the reason for delay in registration of complaint, to which the complainant/PW-1 had stated that there were family relations between the complainant and the accused.
11. Thereafter, vide proceedings conducted under section 294 Cr .P.C, the accused had admitted the genuineness of the statement of the complainant under Section 164 Cr. P.C., recorded by the Ld. MM, West Dist., THC and therefore, the concerned Ld. MM was dropped from the list of witnesses. Subsequently, the PE was directed to be closed at the request of Ld. APP for the State as all the relevant prosecution witnesses had been examined and the matter was proceeded for recording the statement of accused recorded u/s 313 Cr. P.C. In his statement under section 313 Cr. P.C, the accused denied all the allegations and pleaded innocence. The accused submitted that due to some family dispute between him and his son namely Chanchal Kataria, he has been falsely implicated by the complainant in the instant FIR, in connivance with Chanchal Kataria, in order to pressurize him to transfer property in the name of Chanchal Kataria. He also submitted that he had requested his cousin brother/PW2 to shift the place of working of his daughter-in-law/PW1 from godown to the shop and this request, was not received by PW2 in good spirit and the same was the reason for PW2 deposing against him. He submitted that he wished to lead Defence Evidence and therefore, the matter was fixed for leading DE.
12. The accused choose to examine his son namely Chanchal Kataria @ Bunty himself as sole defence witness. DW-1/Sh. Chanchal Kataria deposed that he was presently residing in Gali No.3, Krishnapuri, Tilak Nagar, Delhi and that on the day of the alleged incident, in the morning, he had heard loud noises which were coming from Gali No.3, where his father was residing. Thereafter, he went to Gali No.3 and saw that one Ms. Vandana Gogia/complainant was hurling abuses at his father and she had also threatened her father that she would falsely implicate his father and any other person in a false case, who would come in between her and the accused. He deposed that at that time, his father/ accused was standing in the balcony of the first floor and the complainant was also throwing stones and danda from the ground floor at his father, who was standing at the first floor. It was his version that at that time he did not knew the cause of the said incident or the reason as to why the complainant Ms. Vandana Gogia was abusing his father. He deposed that in the evening hours of the said day, his father had gone to the PS and that apart from the same, he does not have any knowledge regarding the number or the identity of the other persons, who might have gone to the PS in respect of the alleged incident. It was his version that his father/accused in the instant FIR is not in the habit of taking intoxicants and that he remains sober. He further deposed that they have constructed one temple on the second floor of the house, where his father is residing. In his cross-examination, DW-1 deposed that the complainant namely Ms. Vandana Gogia was his distant relative and that he knows the father in law of the complainant since childhood. He deposed that the complainant/PW-1 had posted on Facebook, the reason for hurling abuses at his father on the day of the alleged incident. However, he was not able to recall the contents of the 'post' which was posted by the complainant/PW-1 on Facebook. He also deposed that his younger brother was also residing at the ground floor of the house where his father/accused is residing. As per the version of DW1, the complainant was working as his employee for a period of 20 days (approximately) prior to the date of the incident, at his office, which is also situated near his residence. He deposed that all his family members, including his mother/wife of the accused as well as his younger brother was present, when the complainant was abusing his father. DW1 deposed that the incident, regarding which he has deposed in his examination in chief took place before him and he had witnesses the same. However, he had not made any police complaint regarding the incident but his father/accused had made a police complaint against the complainant. During his cross examination, DW1 deposed that the complainant was accompanied by her husband at the time of the incident. At the time of the incident, his family members had tried to pacify the complainant, however, the complainant namely Ms. Vandana Gogia was not ready to listen to anyone as she was very angry at that time. He deposed that the complainant/PW-1 was also hurling abuses on all such persons, who were trying to pacify her. DW1 further deposed that his father had only requested the complainant to change the chadar/bedsheet and also to clean the premises, where the madir is situated and this enraged the complainant, who resultantly started hurling abuses at his father. DW1 also deposed that after the day of the incident, the complainant never turned up again for the job for which she was employed. DW1 categorically denied the suggestion of Ld. APP for the State to the effect that he was deposing falsely in order to save his father from possible conviction. DW1 admitted the fact that he was having cordial and warm relations with his father.
13. After his examination as a defence witness, the accused choose to close DE. Therefore, DE was directed to be closed and the matter was fixed for addressing Final arguments.
14. I have heard the submissions addressed by the Learned APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
15. While opening the arguments, Ld. APP for the state submitted that the star witness of the prosecution/complainant/PW1 namely Ms. Vandana Gogia examined during trial, has fully supported the case of prosecution on all material points. Ld. APP has referred to the testimony of PW1 and has submitted that despite the fact that she was subjected to cross examination at length by the Ld. Counsel for the accused, nothing could be elicited from her mouth, which could shake her credibility. He further submits that the father-in-law of the complainant/PW2, who himself happens to be a cousin brother of the accused, has fully corroborated the testimony of PW1 on all the material points. He has argued that nothing has come on record to show that there was any previous enmity between the accused and the complainant and therefore, there is no possibility of any false implication in this case. On the strength of these arguments, he has argued that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt and accordingly, he has prayed for conviction of the accused.
16. On the other hand, Ld. defence counsel argued that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. He argued that PW1/ star witness of the prosecution, has made material improvements in her version, during her testimony and thus, the testimony of PW1 is not worthy of credence, as the same does not inspire confidence and the same ought to be rejected at the threshold. He has further argued that apart from the complainant/PW1 and her father-in-law, who are interested witness, the prosecution failed to examine any other public person/ independent witness in support of its case. During of the course of the final arguments, Ld. Defence counsel has submitted that many persons namely the courier boy, husband of the complainant and the wife of the accused, who all were material witnesses, were not examined by the prosecution and their non-examination also goes to the root of the case, attempted to be built by the prosecution. Ld. Defence counsel submitted that the version of events, as has been deposed by the complainant/PW1 cannot be taken as a gospel truth and the same ought not to be accepted at it face value. Ld. Defence counsel argued that the complainant has deliberately and intentionally improved her version at the time of her deposition in court to falsely implicate the accused. On the strength of the aforesaid submissions, Ld. defence counsel argued that reasonable doubt has been created in the case of prosecution qua the accused and the same will inexorably result in acquittal of the accused in respect of the alleged offences.
17. In the present case, the accused has been charged for committing offences punishable under Section 506/ 509 IPC. Section 506 IPC provides punishment for criminal intimidation. Offence of criminal intimidation has been defined under Section 503 IPC. At the same time, Section 509 IPC provides punishment for insulting the modesty of a woman. The Sections read as under :
S. 503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.--A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
S. 509. 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, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
18. In the instant case, apart from the Victim/complainant/PW1 namely Ms. Vandana Gogia and her father-in-law/ PW2, the other cited prosecution witnesses were related to the investigation of the present case. Thus, the only issue which arises for consideration is that whether the testimony of the victim/ complainant/PW1 and her father-in-law/ PW2 are worthy of credence and can be relied upon by the prosecution for bringing home the guilt of the accused.
19. PW1/Victim/ complainant is the informant of the case and her version is not a deviation from the facts divulged in her original complaint Ex. PW1/A except a few minor discrepancies. Though, Ld. Counsel for the accused has vociferously argued that there are material contradiction(s) in the testimony of the complainant/ PW1 and the same goes to the root of the case, however, in my opinion, the alleged discrepancies in the testimony of PW1, cannot be considered as material discrepancy(s). The alleged discrepancies are trivial in nature and cannot be considered as material. At the same time, despite extensive cross-examination, nothing has been elicited from the mouth of PW1 by the accused, which could throw doubts on the credibility of PW1. In Shivappa Vs. State of Karnataka, AIR 2008 SC 1860, the Hon'ble Supreme Court of India held that the minor discrepancies or some improvements also would not justify rejection of testimonies of the eye witness if they are otherwise reliable. Some discrepancies are bound to occur because of the social background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in the court. At the same time, in my opinion, the evidence of PW1 is reliable and trustworthy, especially in view of the fact that PW1 is herself a victim and it is a settled law that evidence of a victim stands on a higher pedestal.
20. In "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in "Vadivelu Thevar vs State of Madras" 1957 SER 981 wherein it was observed by the Hon'ble Court as under:-
1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
21. Thus, the Hon'ble Supreme Court has held that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
22. In the case at hand, the testimony of the victim/ PW-1 has given a trustworthy and reliable account of the incident and defence has not been able to impeach his credibility. There is no reason to disbelieve the testimony of PW-1. The testimony of the complainant/PW1 has ring of truth and is cogent, credible and trustworthy. At the same time, PW2/ father-in-law of the complainant, has deposed on same lines as PW1 and has corroborated the testimony of PW1 on all the material aspects. Therefore, the court is of the view that no further corroboration is required. Thus, absence of testimony of any public witness/ independent witness is immaterial and will not have any adverse effect on the case, attempted to be built by the prosecution. At the same time, I must hasten to add here that I am not oblivious to the fact that the accused has also examined his son namely Sh. Chanchal Kataria as a defence witness (DW1), in order to prove his defence. However, in my opinion, the testimony of DW1 is not worthy of credence and has to be discarded, as DW1 is the son of the accused and therefore, his testimony has to be read in light of the fact that he has every reason to depose falsely in order to save his father from possible conviction. At the same time, the testimony of DW1 is not reliable as the same flies in the teeth of his statement recorded under section 161 Cr. P.C, during the course of investigation.
23. Now, coming to the other main question, arising in the instant case/ FIR, i.e. whether the words allegedly uttered by the accused, if taken at their face value, amount or do not amount to insulting the modesty of a woman.
24. Since the word "modesty" has not been defined in the Indian Penal Code, we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word "modest" in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast", Webster's Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Ed) the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive a version to impure or coarse suggestions".
25. It was held by the Hon'ble Apex Court in Rupen Deol Bajaj v.
KPS Gill (AIR 1996 Supreme Court) that, "the dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case, (AIR 1967 SC 63), it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman".
26. When the above test is applied in the present case, keeping in view the total factual situation, it cannot be held that the alleged words of the accused amounts to insulting the modesty of complainant. None of the words uttered by the accused was suggestive of intruding upon the privacy of complainant. Apparently the words used by the accused could not be perceived as one which are capable of shocking the sense of decency of a woman. Thus, even if, the version of the victim/PW1 is accepted as gospel truth and is taken at its face value, in such case also, it cannot be said that the accused has uttered any word or made any sound gesture with intention to insult modesty of a woman and therefore, offence under section 509 IPC is not made out against the accused.
27. The emphasis of the prosecution to invoke the present provision of IPC is on the words used by the accused. In order to appreciate the applicability of this provision, the alleged utterances i.e. "upar aaja, tujhe main paisa dunga, free mein kaam nahin karwaunga" are to be seen in the context/ background of facts, under which they were made by the accused. As per the victim herself, she was told by the accused to change the chaddar (bedsheet) of the Mandir, which was being maintained by the accused at his residence/ house. And when the victim/ complainant did not reply to the accused, the accused uttered the above-stated words. In the opinion of this court, if the alleged utterances, made by the accused are taken at their face value, and are appreciated in light of the factual background of the case, there is no such word which may amount to insulting the modesty of a woman. In fact, it cannot be said beyond doubt that the accused clearly had an intention to indulge into a calculated lowering down of the dignity, modesty, sense of decency of the complainant/ victim by using this kind of language or bringing her stature down in her own eyes.
28. Thus, despite the fact that the allegations regarding incident dated 31.07.2015, made by the complainant/ victim are accepted by this court to be true, the allegations do not satisfy the ingredients of offence punishable under Section 509 IPC. However, at the same time, the testimony of the victim/PW1, which has been duly corroborated and supported by PW2, clearly proves the fact that the accused had threatened and criminally intimidated the victim/ PW1 and her father-in- law/ PW2. Consequently, the accused can be said to have committed an offence of criminal intimidation punishable under section 506 IPC.
29. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case qua the offence punishable under section 506 IPC. At the same time, the prosecution has failed to bring home the guilt of the accused qua the offence punishable under section 509 IPC.
30. Accordingly, the accused namely Om Prakash Kataria stands convicted in respect of the offence punishable under section 506 IPC. However, he stands acquitted qua the offence punishable under section 509 IPC.
31. Let the convict namely Om Prakash Kataria s/o Sh. Lalu Ram Kataria be heard on the quantum of sentence.
32. Copy of judgment be given to the convict free of cost and copy of judgment be placed on case file.
Decided on 15.07.2021.
Announced through VC (Cisco Webex)
PUNEET Digitally signed by
PUNEET NAGPAL
NAGPAL Date: 2021.07.15
18:15:20 +05'30'
(PUNEET NAGPAL)
MM-07, West District
THC/Delhi.