Delhi District Court
State vs . Shanker Dass on 21 March, 2018
IN THE COURT OF MM (MAHILA COURT02)
(SOUTHWEST), DWARKA COURTS, DELHI
PRESIDING OFFICER: NEHA, DJS.
IN THE MATTER OF :
State Vs. Shanker Dass
FIR No. 578/15
PS : Palam Village
U/s 354C/509 IPC
Date of Institution : 04.01.2016
Date of reserving of order : 06.03.2018
Date of Judgment : 21.03.2018
JUDGMENT
1. Serial No. of the case : 423074/16
2. Name of the Complainant : Ms. N.D.
3. Date of complaint : 11.10.2015
4. Name of accused person : Shanker Dass
S/o Sh. Sunil Dass
R/o H. No. B51, J. J. Colony,
Sector 7, Dwarka, New Delhi.
5. Offence charged : Under Section
354C/509 IPC.
6. Plea of accused : Not guilty
7. Final Order :Acquitted
FIR No. 578/15 State Vs. Shanker Dass Page No. 1 of 12
PS Palam Village
Counsels for the parties.
Ms. Rajesh Kumari, Ld. APP for the State.
Sh. Hemant Verma and Sh. Sanjeev Sharma, Ld. counsels for the accused.
BRIEF REASONS FOR ORDER:
1. The accused has been charged for committing offences punishable under Section 354C/509, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). It is alleged that on 11.10.2015 at about 11.15 am at B51, Sector7, J. J. Colony, Dwarka, the accused watched and captured the image of complainant while she was bathing in her bathroom. It is alleged that accused, with intention to insult the modesty of complainant, intruded upon the privacy of the complainant while she was bathing.
2. Complaint was made and an FIR was registered. IO conducted the investigation. After completion of investigation, the present chargesheet has been filed for offences punishable under Section 354C/509 IPC.
3. Cognizance of offence was taken and accused was summoned to face trial. The copy of the chargesheet was supplied under Section 207 Cr.P.C. to the accused.
4. Vide order dated 01.04.2016, charge for offences punishable u/s 354C/509 IPC was framed against accused, to which he pleaded not guilty and claimed trial.
5. Prosecution Witnesses have been summoned for evidence FIR No. 578/15 State Vs. Shanker Dass Page No. 2 of 12 PS Palam Village and total 5 prosecutions witnesses have been examined to prove the case of the prosecution against the accused.
6. PW1 is the complainant S. She has deposed that on 11.10.2015 on Sunday at about 10 a.m., she was taking bath inside the bathroom and gate of bathroom was in broken condition. She perceived that someone was taking her photograph as flash light was blinking inside the bathroom. She found that accused Shanker Das was clicking her photographs from downside of the door while she was taking bath. She tried to snatch the mobile phone of accused from the downside of the door but could not succeed. Thereafter, accused fled away to his floor and she came out from bathroom and made alarm.
Accused fled away to house of landlord namely Badal Dass.
7. PW1 has further deposed that she also went to the house of landlord Badal Dass and made alarm there. She went to Police Station where her statement was recorded vide Ex. PW1/A and police prepared site plan at her instance vide Ex. PW1/B. On 13.10.2015 her statement was recorded u/s 164 Cr. P.C. PW1 correctly identified the photographs of the gate of bathroom and same is Ex. P1.
8. PW2 Sh. Badal Dass is the landlord of the property. He has deposed that he is owner of house bearing no. H. No. B51, J. J. Colony, Sector 7, Dwarka, New Delhi. In 2015, complainant was residing at second floor and accused Shanker Dass was residing at third floor of his house. On 11.10.2015, accused Shanker Dass came to his house and informed that while he was going from stairs there FIR No. 578/15 State Vs. Shanker Dass Page No. 3 of 12 PS Palam Village was dark and he lighted the light of his mobile for visibility. Thereafter, he left the house. Within 10 minutes 30 minutes, complainant also came to his house and informed that accused Shanker Dass had clicked her photo while she was taking bath inside the bathroom. In the meanwhile, accused also came alongwith some associates. He checked mobile of the accused but he did not find any photos in mobile of accused. Thereafter, a quarrel took place between accused and complainant. The reason of dispute was water storage in the rented house as there was only one water tank for tenants. At the time of quarrel, complainant was insisting him to get the premises vacated from tenant / accused Shankar Dass.
9. PW3 Sh. Niranjan Dass is the husband of the complainant. He has deposed that on 11.10.2015 at about 7 am, he had gone to attend his duty. At about 10.30 am, his wife / complainant called him on mobile phone and informed that accused Shanker Das was peeping from the bottom of the gate of the bathroom when she was taking bath. He alongwith complainant went to PS. Complainant made a complaint before the police.
10. PW4 HC Rakesh is the duty officer who registered the present FIR. He proved the FIR as Ex. PW4/A and endorsement on the rukka as Ex. PW4/B.
11. PW5 ASI Birender Singh is the IO of the case. He has deposed that on 11.10.2015, he was on emergency duty from 8 pm to 8 am. On that day, at about 10 pm, complainant came to the PS with FIR No. 578/15 State Vs. Shanker Dass Page No. 4 of 12 PS Palam Village her family members. She narrated about the incident. She gave a complaint Ex. PW1/A and he prepared rukka Ex. PW5/A and handed over rukka to duty officer for registration of FIR. After registration of FIR, he went to the spot and prepared site plan Ex. PW1/B. The accused was not found at his address on that day and he served notice to accused u/s 41 A of Cr. P.C. vide Ex. PW5/B. Thereafter, he arrested accused on 18.10.2015 vide Ex. PW5/C and his disclosure statement was recorded vide Ex. PW5/D. Accused was released on police bail. During investigation, he got recorded statement of the witness/ complainant u/s 164 Cr. P.C. Ex. PW1/C. He recorded statement of witnesses and filed chargesheet. He had also taken the photo of the bathroom from outside which is Ex. P1.
12. All the witnesses were cross examined. The prosecution evidence was closed vide order dated 16.01.2018. Accused was examined under Section 313 Cr.P.C r/w Section 281 Cr.P.C. Substance of incriminating evidence was put to him separately. Accused denied all the incriminating evidence and has stated that there was quarrel with the complainant over storage and usage of water and the complainant wanted him to vacate the property. He has also stated that on that day he was coming downstairs and the staircase was dark and therefore, he lighted the torch of the mobile to see the staircase and come down.
13. The accused did not examine any witness in defence. Therefore, the matter was fixed for final arguments.
FIR No. 578/15 State Vs. Shanker Dass Page No. 5 of 12 PS Palam Village
14. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts against the accused. the accused had taken photograph of the complainant while she was taking bath and the photographs were later deleted by him and therefore, landlord Sh. Badal Dass and the complainant did not find any photograph of the complainant in the mobile of accused. The prosecution has proved all the ingredients of the offences punishable under Section 354C/509 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
15. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the complainant and her husband. The complainant and her husband have deposed falsely to get the premises vacated from accused and this fact is also proved by the prosecution witness Sh. Badal Dass. The prosecution has failed to prove beyond reasonable doubts that accused was involved in the alleged incident. Hence, it is prayed, the benefit of doubt may be given to the accused and he may be acquitted.
16. I have heard the rival submissions and carefully perused the material available on record.
17. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
FIR No. 578/15 State Vs. Shanker Dass Page No. 6 of 12 PS Palam Village
18. The accused has been charged with offence punishable under section 354C IPC. It is alleged that accused watched and captured the image of the complainant in his mobile while she was taking bath in her bathroom.
19. The material witnesses examined by the prosecution is the complainant /PW1 and the landlord /PW2, who was approached by the complainant immediately after the incident. PW3 Niranjan Dass is a hearsay witness. He has not seen the incident and he had been informed about the incident by the complainant.
20. The complainant has stated, in the examination, that she perceived that someone was taking her photo as flash light was blinking inside the bathroom. She found that accused was clicking her photographs from the downside of the door while she was taking bath. She even tried to snatch the mobile phone of the accused from the downside of the door but could not succeed.
21. As per the statement of the complainant, the gap between the floor and bottom of the door was so much that she could even take her hand out to snatch the mobile of the accused, while he was trying to take her photo. She has deposed, in the crossexamination, that the door of the bathroom was broken from bottom and one could see inside the bathroom from the broken portion of bottom and the broken portion of the bathroom was about one feet.
22. The statement of the complainant is contradictory to the statement of landlord Sh. Badal Dass in respect of the gap in door of FIR No. 578/15 State Vs. Shanker Dass Page No. 7 of 12 PS Palam Village the bathroom. PW2 Badal Dass has stated, in his cross examination, that the door of the bathroom was not in broken condition and no one could take photographs from the mobile phone. He has also stated that there is no space in the bathroom from where one could click photographs from a mobile.
23. The statement of the two prosecution witnesses are contradictory in respect of the gap in the door. The prosecution has not reexamined landlord Sh. Badal Dass in respect of his statement that there was no gap in the door of the bathroom that any body could take a photo or see inside the bathroom.
24. In the evidence, the IO has stated that the door was not broken but there was gap between the door and the floor. However, he could not take the exact measurement between the door and the floor. He has stated that the photograph of the door, Ex. P1 was clicked by him from his mobile.
25. The photograph Ex. P1 shows that the door was not broken at any portion and there is slight gap between the floor and the door. From the photograph, it can not be said with certainty that a person could easily put a mobile or take out hand outside bathroom.
26. The statement of PW2 Badal Dass has also proved that the relation between the complainant and accused was not cordial. Though, the complainant has deposed that there was not dispute or altercation with accused Shanker Dass or his family prior to the incident. However, the husband of the complainant/ PW3 Sh. FIR No. 578/15 State Vs. Shanker Dass Page No. 8 of 12 PS Palam Village Niranjan Dass has stated that the relation with accused Shanker Dass was not friendly.
27. PW2 Badal Dass, landlord of the house, has deposed that the reason of dispute between the complainant and accused was water storage in the house as there was only one water tank for the tenants. He has also stated that quarrel took place between the complainant and Badal Dass threefour times. He has also categorically stated that at the time of quarrel on that day, the complainant was insisting to get the premises vacated from accused Shankar Dass and she was also pressing to keep her brother in law (devar) as a tenant in place of accused Shankar Dass. He has also categorically stated that he checked the mobile of the accused but he did not find any photo in the mobile.
28. It is thus proved from the statement of the landlord and husband of the complainant that the relation between the complainant and accused was not cordial.
29. In view of the above, this Court is of the view that the complainant and her husband are interested witnesses and they have a motive to implicate the accused. Therefore, sole testimony of the complainant can not be relied upon to convict the accused.
30. It is also worthdiscussing here that the accused had allegedly taken the photographs of the complainant in his mobile. However, the mobile of the accused has not been seized by the police during investigation. The incident took place on 11.10.2015. The FIR FIR No. 578/15 State Vs. Shanker Dass Page No. 9 of 12 PS Palam Village was registered on the same day and the accused was arrested on 18.10.2015. The IO did not seize the mobile phone of the accused after his arrest.
31. It is settled position of law that best evidence is to be produced to prove a case. The best evidence in this case was the mobile phone in which the accused had taken photo of the complainant. The mobile has neither been seized nor the same has been sent to Forensic Lab for examination to check whether there was photograph of the complainant in the said mobile or not which might have been deleted by accused as argued by the Ld. APP for the State.
32. There are also many material contradictions in the statement of the complainant. In the complaint to police, the complainant has alleged that the accused was seeing her while she was taking bath and he was also taking her photo. However, in the statement under Section 164 Cr. P.C., she has stated that one male was taking her photo and she noticed from inside and held the phone but that male snatched his mobile and she came out of the bathroom in wet cloths and that person started apologizing her. There is no averment in the police complaint or in the evidence that complainant had held the mobile of the accused while he was taking her photograph or that accused tendered his apology.
33. Further, in the statement under Section 164 Cr.P.C, the complainant has stated that prior to this incident also, that person had shown her obscene photographs in his mobile phone. However, in the FIR No. 578/15 State Vs. Shanker Dass Page No. 10 of 12 PS Palam Village complaint to police and in the evidence also, the complainant has not made any such allegation that accused had ever shown any obscene photograph or video in his mobile phone.
34. All these material contradictions in the statement of the complainant make the statement of complainant unreliable.
35. The accused has taken defence that he had switched the light of the mobile to see the stairs as it was dark.
36. In the evidence, the complainant has admitted that accused Shankar was residing at fourth floor and she was living at third floor and bathroom was constructed besides stairs. She has also admitted that there was dark on the stairs.
37. In the evidence, PW2 Badal Dass has also admitted that the person who used the stairs also lighted the torch of mobile phone to step down safely. He has also admitted that water remained filled up due to over flow of water from the bathroom at the stairs and some times stairs remained dark and sometimes there was visibility.
38. PW3 Niranjan Dass /husband of the complainant has also admitted that the gate of the bathroom is faced towards the stairs. He has also stated that there was a small zero watt bulb installed in the stairs and if the bulb was not lit, there would be dark at the staircase.
39. It is clear from the statement of all three prosecution witnesses that some source of light was required to safely use the staircase. The statement of the prosecution witnesses strengthens the defence of the accused that he had lit the light of the mobile to see the FIR No. 578/15 State Vs. Shanker Dass Page No. 11 of 12 PS Palam Village dark staircase. It is settled position that whereever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
40. In view of aforesaid discussion, this Court holds that the prosecution has failed to prove beyond reasonable doubts that the accused watched or captured the image of the complainant in his mobile while she was taking bath in the bathroom.
41. The accused has also been charged with offence under Section 509 IPC. It is alleged that accused had intruded upon the privacy of the complainant. As the prosecution has failed to prove that accused was watching or capturing image of the complainant while she was taking bath, this Court also holds that the prosecution has also failed to prove that accused had intruded upon the privacy of the complainant. There is nothing to show that accused had uttered any obscene word or made any obscene gesture and had shown any obscene object to the complainant with intention to insult her modesty. Benefit of reasonable doubts is given to the accused and he is acquitted of the charges alleged.
42. Bail bond and surety bond of accused u/s 437A Cr.P.C has been furnished with his photograph and address proof which has Digitally signed by been considered and accepted. NEHA NEHA Date: 2018.03.21 14:46:40 +0530 Pronounced in the open court (NEHA) On 21st March 2018 Metropolitan Magistrate Mahila Court02/Dwarka New Delhi FIR No. 578/15 State Vs. Shanker Dass Page No. 12 of 12 PS Palam Village