Delhi District Court
State vs . Prem Giri Goswami, Fir No:890/1998 on 31 July, 2010
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IN THE COURT OF Ms. VEENA RANI METROPOLITAN MAGISTRATE
MAHILA COURT: SOUTH DELHI
IN RE:
STATE V. Prem Giri Goswami
FIR No. 890 / 1998
P.S. : Defense Colony
U/S : 509 I.P.C.
JUDGMENT:
1.Srl. No. of the case & Date of institution :16/2 (2009)/(1998)
2.Date of commission of offence :20091998
3.Name of the complainant :State through Ms. Suman Nim
4.Name of the accused :Prem Giri Goswami S/o Lt. Ramesh Giri
5.Nature of offence complained of :U/s 509 IPC
6.Plea of the accused person :Accused pleaded not guilty
7. Date reserved for order :522010
8.Final Order :Acquitted
9.Date of such order :31072010 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1) The present accused Prem Giri Goswami s/o Sh. Ramesh Giri was brought before this court to face the trial u/s 309 IPC. A notice under S. 509 was framed against the said accused. The notice was framed against them on the basis of the incident dated 20.09.1998 at 10:45 A.M. that the accused along with others had passed obscene remarks to the complainant Ms. Suman Nim with intention to outrage her modesty thereby committing offence under s.509 IPC. The accused pleaded not guilty and claimed trial.
State Vs. Prem Giri Goswami, FIR No:890/1998 Page 2 of 9
2) The complainant Ms. Suman Nim has examined as PW1 and has deposed that on 20.09.1998 she, accompanied by her husband, was in a car near the Defense Colony Church where she had gone to arrange for a maid. There was a group of 4/5 boys who stood near the car and were passing remarks in filthy language. The complainant asked them not to do so and parked the car away from them. The boys followed the car. The complainant came out of the car to ask why they were doing so. One of them came forward and slapped her and fled away. The rest also fled away, however, the complainant was able to get hold of the present accused who was later handed over to the police. The complainant took the boy to the Defense Colony Police Station. The name of the present accused was revealed during the investigation. The complainant felt that her modesty was outraged by the boys and the present accused was one of them. The complaint was given to the police and the same is Ex.PW1/A. The complainant was medically examined at the AIIMS.
She got Swelling on her ear. The accused Prem Giri was identified by the complainant who was one of the boys passing lewd remarks against her, however, he was not the one who had slapped her.
3) The husband of the complainant has been examined as PW2 and has stated that on 20.09.1998 he had accompanied his wife and were in a car near the Defense Colony Church where they had gone to arrange for a maid. There was a group of 4/5 boys who stood near the car and were passing remarks in filthy language. The complainant asked them not to do so. One of them came forward and slapped her and fled away. The rest also fled away, however, the complainant was able to get hold of the present accused who was later handed over to the police. The complainant took the boy to the Defense Colony Police Station.
State Vs. Prem Giri Goswami, FIR No:890/1998 Page 3 of 9
4) HC Kanhaiya Lal has been examined as PW3 and has deposed that on 20.09.1998 he had recorded the FIR No. 890/98 at about 11:15 A.M. The carbon copy of the same is MarkA.
5) ASI Hari Singh the IO has been examined as PW4 and has deposed that on 20.09.1998 he was posted at P.S. Defense colony and the duty officer had handed over to him a copy of the FIR. The complainant was taken to AIIMS for her medical examination. Later the PW4 had prepared the site plan at the instance of the complainant and the same is Ex. PW4/A. The accused Prem Giri was produced by the complainant who was arrested by PW4 vide arrest memo Ex. PW4/B. The personnel search was conducted vide memo Ex.PW4/C. The MLC of the complainant is MarkA. After completion of the investigation the charge sheet was filed by PW4.
6) The accused persons in his statement u/s 313 Cr.P.C. have denied the allegations and has stated that he has been falsely implicated. The accused persons chose to lead D.E..
7) Sh. Ghanshyam Chand has been examined as DW1 and has deposed that on 20.09.1998 he had visited the Church alongwith the accused. At about 10:30 A.M. the police came and picked him up without any reason. No offence had occurred in the presence of DW1. In crossexamination the DW1 has denied that he was not present at the church.
8) Sh. Radhey Shyam has been examined as DW2 and has deposed that on 20.09.1998 he had visited the Church alongwith the accused. At about 10:45 A.M. the police came and picked him State Vs. Prem Giri Goswami, FIR No:890/1998 Page 4 of 9 up without any reason. No offence had occurred in the presence of DW1. In crossexamination the DW1 has denied that he was not present at the church. He has further said that he had not accompanied the accused to the police station. However, he asked the police why they were taking the accused to the police station.
9) Now I shall consider whether the prosecution has succeeded in establishing the criminality of the accused. Section 509 I.P.C. reads as follows :
"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."
10)A reading of the title of Section 509 IPC itself shows that the section deals with an offence involving word, gesture or act which are intended to insult modesty of a woman . The offence under the said section will be attracted if a person 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 . Though Section 323 IPC was available to protect a woman also State Vs. Prem Giri Goswami, FIR No:890/1998 Page 5 of 9 from the use of a criminal force or assault against her, Section 354 was introduced into IPC, with a specific object. It was not because there was no other provision in IPC to punish a person using a criminal force or making an assault against a woman that another provision by way of Section 354 IPC was brought in. Legislature intended that a special provision must be made available to protect a woman , if any assault or force is used against her, intending to outrage her modesty. Emphasis was on the aggressions made on the modesty of a woman . Legislature specifically intended that any assault on a woman 's modesty has to be curbed and controlled effectively. Later, legislature found 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. 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. That is why even a verbal attack on a woman , a gesture and other acts stated in Section 509 IPC were brought under the said Section. It is clear from a reading of Section 509 IPC that by introducing the said provision, legislature intended that any sort of aggression into a woman 's modesty whether by any word, deed or act should be deterred, as evident from the title to the section itself. Thus, the acts which are done intending to insult the modesty of a woman which may not necessarily involve even any physical advances are also brought within the sweep of a separate provision viz., Section 509 IPC. (see M.M. Haries v. State of Kerala, (Kerala) 2005 Cri.L.J. 3314 ).
11)In State of Kerala v. Hamsa, (1988) 3 Crimes 161, it was held:
State Vs. Prem Giri Goswami, FIR No:890/1998 Page 6 of 9 "What the legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman , as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman , as it may vary from country to country or society to society."
12) A well known author Kenny in his book "Outlines of Criminal Law", 19th Edn., para 146 p. 203 has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under :
"In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency."
13)In the present case the complainant has deposed that the accused was using 'filthy language' in the remarks made. The meaning of filthy is something, such as language or printed matter, which is considered obscene, prurient, or immoral. In the present case the complainant has not deposed what were the exact words which were used by the accused. It is very essential to know State Vs. Prem Giri Goswami, FIR No:890/1998 Page 7 of 9 the 'exact words' uttered. The witness PW1 has deposed that she 'felt' that her modesty was outraged by the boys. That goes to say that it was her own subjectivity which lead her to form an opinion that her modesty was outraged. The ingredients of S.509 IPC would not suggest that the offence could be established without considering the precise words uttered. The words so uttered has to weighed against the mere opinion that a woman forms. This distinction of a mere opinion and the actual insult has been considered in a case Sau. Auuradha R. Kshirsagar v. State of Maharashtra , (Bombay)(At Nagpur) reported in 1991 Cri.L.J. 410 where the accused had uttered the words related to catching the woman by hair, kicking on her waist, pulling her out or giving threat etc. which were held not to be connected with feminity and consequently not related to the modesty of the woman . These were held to be the common utterances visavis a female or a male and the specific offence under s.509 IPC was held to not to be made out. It was clearly held therein that the mere utterances do not violate the concept of feminity. In another case Smt. Seeta Devi v. State of Punjab, (P&H) reported in 2002(2) R.C.R.(Criminal) 232 it was pointed out that general allegations without specifying the distinct role of an accused is not enough to establish the offence relating to modesty. In the present case what has happened is that the complainant saw a group of boys and heard some filthy words not specifying who uttered them. The complainant (PW1) caught hold of the accused while the rest fled. It is not certain whether it was the accused who had uttered the filthy words. The words are not specified. In such a situation it becomes very unsafe to hold an accused guilty of the offence.
14)Now I come to the defense evidence. The foremost question is the credibility of the defense witnesses .In Vadivelu Thevar v. The State of Madras (1957 SCR 981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, State Vs. Prem Giri Goswami, FIR No:890/1998 Page 8 of 9 wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. The decision in Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251) and in "Lallu Manjhi v. State of Jharkhand" reported in AIR 2003 SC 854.
15)I have no hesitation in the present case to put the defense witness DW1 and DW2 in the category (B). In the present case the two defense witnesses have both said that the accused was with them. Surprisingly the two accused have not categorically stated that they themselves were together. The accused brought the two defense witnesses in order to drive home a point that he was with them and that he was picked up by the police at the church. Both the DWs depose that the accused was taken to the police station. Surprisingly neither PW1 nor PW2 had accompanied the accused to the police station. It seems that the two witnesses have come with a deliberate version in order to save the accused. The two witnesses cannot thus be relied upon.
16)The crux of the decision in the present case is that though the defense witnesses do not seem to be reliable the prosecution has still not able establish its own case. The present accused is being given the benefit of doubt because of poor prosecution and a shoddy investigation. The present case is one of those cases where the accused is being let of due to the dismal investigation coupled with poor prosecution. Unfortunately the police has not been able get hold of the other culprits particularly the one who had slapped the complainant (PW1) and had fled. Had the complainant herself not got hold of the present accused he too would have fled.
State Vs. Prem Giri Goswami, FIR No:890/1998 Page 9 of 9 No effort is reflected on part of the police to nab the other accused. The police who had the accused could have ascertained the whereabouts of the other culprits. The police has utterly failed to investigate the case properly. The Hon'ble Delhi High Court (DB) in the case entitled "Devesh Kumar v. State" reported in 2010[1] JCC 762 wherein it was held :
"When the main pillars of the case of the prosecution have fallen, it would be futile to look to the pillars which stand and try and ascertain whether the structure can be salvaged"
17) Delhi would soon be hosting the Common Wealth Games and this court (being a Mahila Court) can only hope that the women specially the guests visiting from the other parts of the world are safe in the city. The need is to be more responsive to the sensitivities of a woman and to effectively deal with the offences against them.
18)In the light of the facts & circumstances of the case the accused Prem Giri Goswami s/o Sh. Ramesh Giri is acquitted under s.509 IPC.
Announced in the open Court on 3172010.
(VEENA RANI)
METROPOLITAN MAGISTRATE MAHILA COURT : SOUTH DELHI
State Vs. Prem Giri Goswami, FIR No:890/1998