Delhi District Court
State vs . Shivam @ Jatin on 28 October, 2020
IN THE COURT OF SH. GAJENDER SINGH NAGAR, ACMM-02,
CENTRAL DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. SHIVAM @ JATIN
FIR No. 210/14
PS: HAUZ QAZI
U/S: 504/509 IPC
JUDGMENT
Case ID no. : 290417/16
Date of commission of offence : 28.08.2014
Date of institution of the case : 28.10.2014
Name of the complainant : Ms. Kanika Sharma
Name of accused and address : Shivam @ Jatin
S/o Sh. Narender Sharma
R/o House No. 1083, Gali Raja
Ugrasen, Bazar Sita Ram,
Delhi-110006.
Offence complained of or proved: U/s 504/509 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Date reserved for judgment : 13.10.2020
Date of judgment : 28.10.2020
BRIEF STATEMENT OF THE REASON FOR DECISION:
1. This is the prosecution of accused pursuant to charge sheet filed by PS Hauz Qazi U/s 504/509 IPC subsequent to the investigation carried out by them in FIR No. 210/2014.
2. Brief facts of the case are that a written complaint was given by complainant Ms. Kanika Sharma on 28.08.2014 at about 5:05 pm regarding an incident happened on that day at about 2:30 pm at 1084, Gali Raja Ugrasen, Sita Ram Bazar, Delhi. Complainant Ms. Kanika Sharma made a complaint that in the afternoon it was raining heavily, during that FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 1/13 time their neighbour i.e. accused Shivam Sharma brought a big iron rod on the roof of second floor and started making a hole in the drainage pipe (naali) due to which rain water entered into the house of Ms. Jyoti i.e. tenant of the complainant on that Ms. Jyoti called the complainant. She went on the roof and asked the accused not to do the same, on that accused assaulted (mere pe haath chora) her and also used unparliamentarily language (apshabd ka prayog kiya) against her. It is also informed by the complainant that there are civil and other cases pending between her family and family of the accused. On these facts, FIR was registered. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 504/509 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charges for offences punishable under section 504/509 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. A total of 07 witnesses have been examined by the prosecution to bring home the guilt of accused.
5. PW-1 HC Raj Kishore exhibited copy of FIR as Ex. PW-1/A (OSR), certificate under Section 65-B of Indian Evidence Act qua same as Ex. PW-1/B, endorsement on the rukka from point X to X1 as Ex. PW-1/C.
6. PW-2 Ms. Kanika Sharma (i.e. complainant) deposed that on 28.08.2014 at about 02:30-03:00pm, she was present in the house alongwith her mother in law and two children. It is was a rainy day. One of her tenant namely Jyoti who reside on the second floor informed her that accused was using an iron rod on the roof of second floor at Naali (sariye se naali ko tod raha tha). Ms. Jyoti also informed that due to the FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 2/13 damage to Naali, rain water had came inside her room on that this witness alongwith Ms. Jyoti went to the roof and asked accused as to why he was doing such act. She also asked accused not to do said act. On that accused pushed her on her chest. Accused also abused her and misbehaved with her. At that time, Ms. Jyoti and Ms. Suman were also present there. On that she made a phone call to PCR at 100 number. However, police reached late due to rain and a Shobha Yatra. She exhibited her complaint made to police as Ex. PW-2/A. It is stated by her that there was a civil case between her and accused. In her cross- examination, it is stated by her that she had gone to police station alone for making the complaint. It is stated that police has not seized the iron rod used by the accused in her presence. It is stated that no other quarrel had taken place between her family and family of the accused on that day. It is denied by her that she has made a false complaint. It is stated by her that grandfather of the accused is uncle (tauji) of her husband. It is stated by her that there are separate staircase of both the families to reach on the upper floors of their respective portions. It is stated by her that IO had made inquiry from Ms. Jyoti and Ms. Suman at her home qua incident in question. It is denied by her that there is no common wall between her house and house of the accused. She could not tell how many floors are there in the house of the accused. It is denied by her that there was no possibility for the accused to reach on the roof of the second floor of her house as their house is having four floors. It is denied by her that accused did not misbehave or abused her. It is denied by her that due to said reason she could not mention the exact words in her complaint. It is denied by her that she has made false complaint against the accused to put pressure on grandfather of the accused to settle the civil dispute.
7. PW-3 Ms. Suman deposed that on 28.08.2014 at 03:00pm it was a heavy rainy day. Due to rain, Naala on the terrace was blocked, on that her neighbour Ms. Jyoti came to her and apprised that water is coming in her house. Thereafter, Ms. Jyoti saw that accused was using a sariya to open the Naala on that Ms. Jyoti called Ms. Kanika (owner of the FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 3/13 house). On that, Ms. Kanika came and objected regarding the act. It is stated by her that thereafter, Shivam @ Jatin (accused) and Kanika bhabhi (complainant) had done dhakka mukki and muhjori. On that Court put a specific question to this witness as to what type of dhakka mukki and muhjori had happened, to which she replied that Shivam told Kanika bhabhi that he would not ask anything from her as the place belongs to him. Thereafter, Kanika bhabhi had made a call to PCR. In her cross- examination, it is stated by her that house of Kanika bhabhi is three storied building and house of Jatin is two storied building. It is stated by her that her statement was recorded by the police at the spot. The police came at the spot within 30 minutes.
8. PW-4 Ms. Jyoti deposed that on 28.08.2014, she was cleaning her house. It is also stated that accused hit the naala with a sariya due to which the naala had broken and all the water came into the house of this witness as the pipe was coming through her house from the terrace. On that she went to Ms. Kanika and apprised her about the incident. Thereafter, both of them objected to accused regarding his act. On that accused stated "ham to aise hi karenge, hamari jagah hai", than accused pushed Ms. Kanika and also uttered abusive language and misbehaved with her. Thereafter, Ms. Kanika made PCR call. In her cross-examination, she could not tell the exact time when the police came to the spot after PCR call. It is stated by her that she did not accompany Ms. Kanika to the police station. She could not tell if her statement was recorded 4-6 days after the incident. She could not tell whether her statement was recorded by the police at police station or not. It is accepted by her that property of the complainant and the accused are separate property, however it is voluntarily stated that entrance of both the properties is same. It is accepted that entrance of only ground floors of both the properties is same and that there are separate stairs to reach at upper floors of both the properties.
9. PW-4 Ct. Hansraj exhibited DD Entry No. 20 as Ex. PW-4/A FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 4/13 and DD No. 21 as Ex. PW4/B.
10. PW-6 ASI Sunil Kumar deposed that on 28.08.2014, he was posted at Police Post Himmatgarh. At about 03:25 pm, he received a PCR call regarding quarrel at H.No. 1084, Gali Ugarsen. On that he alongwith Ct. Rohtas left for the spot. In the meantime, another PCR call vide DD No. 21 was received regarding quarrel. On reaching the spot, he met the complainant who had given a written complaint on the basis of which tehrir was prepared which is Ex. PW-6/A. Tehrir was handed over to Ct. Rohtash for getting the FIR registered. He prepared site plan Ex.PW-6/B at the instance of complainant. On receiving the FIR and original tehrir, he handed over one copy of FIR to the complainant and mentioned FIR Number on the site plan. He also recorded statement of eye witness Ms. Jyoti and Ms. Suman. He also recorded supplementary statement of complainant and Ct. Rohtash. On 30.08.2014, he again went to the spot alongwith Ct. Karambir in order to search accused, accused was found present at his house. He obtained his age proof and prepared his age memo Ex. PW-6/A. Accused was arrested vide memo Ex. PW- 5/A, personal search was conducted vide memo Ex. PW-5/B. Offence being bailable accused was released on bail. In his cross-examination, it is stated by him that he had left the Police Post Himmatgarh for the spot at about 3:30 pm. It is stated by him that he had not found any iron rod on the spot when he reached there. It is stated that he recorded statements of eye witnesses Ms. Jyoti and Ms. Suman separately and not in presence of each other.
11. PW-5 Ct. Karambir deposed on the same lines as deposed by PW-6. In his cross-examination, it is stated by him that he reached the spot alongwith IO at about 4:00 pm.
12. No other witness was left to be examined hence, PE was closed.
FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 5/13THE DEFENCE :
13. Statement of accused U/s 313 Cr.P.C recorded, wherein he pleaded innocence and stated that he is victim of false implication with a view to ruin his life and compelled his family to compromise or withdraw the civil cases pending adjudication and some cases have been decided in favour of his grandfather. He opted to lead defence evidence and examined Sh. Vidya Ram Sharma as DW-1.
14. DW-1 Sh. Vidya Ram Sharma deposed that nothing had happened on 28.08.2014. They received a call from police station. It is again stated by him that might be a Constable came to the house who informed that accused has been arrested. That Constable came and apprised him about arrest of the accused. On that he reached the police station. He asked the police why accused has been arrested on that they apprised him that they have registered a case against him. It is stated that his younger brother Sh. Jagdish Prasad Sharma stood surety for accused. On that accused was released from the police station itself. As soon as they reached home, one Sh. Kapil Sharma who is their relative started abusing them. On that they again went to the police station, police told them that they will also register a case on their complaint. Police apprised them that they should reach Court for registration of case. In his cross- examination, it is denied by him that he is deposing falsely to save his grandson Shivam @ Jatin i.e. accused from criminal liability.
15. No other witness was left to be examined hence, DE was closed.
THE ARGUMENTS:
16. Ld. APP for state has argued that on a combined reading of testimonies of prosecution witnesses, offences under section U/s 504/509 IPC are proved against accused beyond reasonable doubt.
FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 6/1317. On the other hand, Ld. Defence Counsel has argued that accused has been falsely implicated in the present matter. It is stated that the victim of the incident has lodged a false FIR leveling false allegations against the accused and this fact is specifically established from examination-in-chief as well as cross-examination of PW-3 Ms. Suman as on specific question put by Court it has been explained by PW-3 that accused had told the complainant that he would not ask anything from her as the said place belongs to him. It is argued that PW-3 has specifically deposed that at the alleged time when water pipe was allegedly being broken, complainant was not present at the site. It is argued that victim and accused are near relative, no injury has been caused to the complainant. There was no criminal force, no intentional and provoking words uttered by accused. It is argued that the present case has been filed just to pressurize the grandfather of the accused to settle the civil litigations which has been decided in favour of the grandfather of the accused, while appeal thereof filed by mother-in-law and husband of the complainant. Thus, accused deserves to be acquitted in the present matter. Ld. Defence Counsel relied upon judgments delivered in cases titled as 1972 Crl. L.J. 371(V 78 C 87) (Delhi High Court) "Jugal Kishore and another Vs. State"; 1991 Crl.L.J. 3226 (Allahabad High Court) "Jodh Singh and others Vs. State of Uttar Pradesh and another"; 1991 Crl.L.J. 410 (Bombay High Court) ""Sau. Anuradha R. Kshirsagar and other Vs. State of Maharashtra and others"; 1969 Legal Eagle (Karnatak) (Karnataka High Court) "Devendrappa and another Vs. The State of Mysore" and 1932 Crl.L.J. 463 (Bombay High Court) "Philip Rangel Vs. Emperor".
THE FINDINGS:
18. Arguments adduced by Ld. APP for the State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 7/13Section 509 IPC
19. Now, the undersigned shall decide whether offence U/s 509 IPC is proved against the accused or not. Section 509 IPC read as under:-
"509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any objects, 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 three years and also with fine".
20. 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".
21. In State of Punjab v. Major Singh, AIR 1967 SC 63, a question arose whether a female child of seven and a half months could be said to be possessed of 'modesty" which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of woman is clearly suggestive of sex according to the common notions of FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 8/13 mankind that must fall within the mischief of Section 354, IPC. Needless to say, the 'common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex.
22. It was held by the 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) (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged, is the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman.
23. When the above test is applied in the present case, keeping in view the total fact situation, it cannot be held that the alleged act of the accused amounts to outraging modesty of women as in her complaint it is simply stated by the complainant that accused assaulted (mere pe haath chora) her and also used unparliamentarily language (ap shabd ka prayog kiya) against her. Further, when Court put a specific question to PW-3 Ms. Suman in her examination-in-chief as to what type of dhakka mukki and muhjori had happened between complainant and accused, it was replied by her that Shivam told Kanika bhabhi that he would not ask anything from her as the place belongs to him. The said words uttered by accused would not amount to outraging the modesty of the complainant. The specific unparliamentary/ abusive words allegedly uttered by the accused which would qualify to insult the modesty of the victim have not been described anywhere in the entire evidence. The specific words uttered by accused have not been mentioned to reach a conclusion whether the same were suggestive of sex. Till the specific words uttered by accused could be proved it cannot be held that they were capable of shocking the FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 9/13 sense of decency of a woman. The ingredients of Section 509 IPC could not be established without considering the precise words uttered by the accused. The words uttered by the accused has to be weighed against the mere opinion that a woman forms. In the present case, victim has not specified the exact word uttered by the accused, thus only on the basis of bald statement of the complainant that accused used unparliamentary and abusive language, it cannot be held that the accused has uttered the words or shown the gesture which would fall within the definition provided U/s 509 IPC. Hence, there is no evidence on record to prove that the words uttered by accused were amounting to outraging modesty of a woman. Thus, on the basis of evidence on record the undersigned is of the considered opinion that offence under section 509 IPC has not been proved against the accused.
Section 504 IPC
24. Now the undersigned shall decide whether offence U/s 504 IPC is proved against the accused or not. Section 504 IPC deals with intentional insult with intent to provoke breach of the peace.
25. Hon'ble Apex Court in a case titled as "Fiona Shrikhande Vs. State Of Maharashtra & Anr", decided on 22 August, 2013, observed as follows :-
"504. Intentional insult with intent to provoke breach of the peace.- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 10/13
26. Section 504 IPC comprises of the following ingredients, viz.,
(a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.
27. Hon'ble Apex Court in a case titled as "B.R. Meena Vs. Mangal Das Chiman Lal Barot and Another", decided on 31.03.1987 held that the mere utterance of abusive words without more does not constitute an offence under the Section. The essential requirements are that the accused must intentionally insult and such insult must give provocation to any person and further that he must have the requisite knowledge that such provocation will result in breach of public peace or commission of any other offence.
28. Hon'ble Bombay High Court in a case titled as "Virendrabhai M. Chandalia vs Mohan KanayalalParwani", decided on 27 September, 2002, equivalent citations: 2003 (4) MhLj 335 held that for spelling out an offence indicated by Section 504 IPC exact words alleged to have been uttered have to be mentioned in complaint. He has not made any averment in the said complaint that by hearing those words spoken he FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 11/13 was provoked and that too to such an extend that there was likelihood of he committing breach of public peace or any other offence. In the absence of that, the learned Magistrate was totally wrong in taking the cognizance of the complaint of the complainant against the petitioners in context with an offence publishable under Section 504 of IPC.
29. In a case titled as "Shamlal Bania Vs. The King", decided on 20 September, 1948, equivalent citations: AIR 1952 Cal 288 it was held that where the insult consists in gestures or attitudes, there the Court must obviously record what the gestures or attitudes were. Where the insult consists of words, the Court shall also record what the words were either in the charge when a charge is framed or in the record of the evidence. Before a person can be found guilty of an offence punishable under Section 504 of the Indian Penal Code, for insulting a person by the use of words, it must be shown that the accused used those words intending or knowing it to be likely that it would result in such provocation as would cause that person to break the peace etc. Now, in the absence of all mention as to what words were used it is impossible for this Court to decide whether the words used indicated such intention or knowledge.
30. When the above test is applied in the present case, keeping in view the total fact situation, it cannot be held that the alleged act of the accused amounts to intentional insult with intent to provoke breach of the peace as no gestures or attitudes or words which would amounts to insult of the complainant uttered by the accused has been mentioned by the complainant in her complaint as well as in evidence. The ingredients of Section 504 IPC could not be established without considering the precise words uttered by the accused. In the present case, victim has not specified the exact word uttered by the accused, thus only on the bald statement of the complainant that accused used unparliamentary FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 12/13 language (ap shabd ka prayog kiya), it cannot be held that the accused had uttered the words or shown the gesture which would fall within the definition provided U/s 504 IPC. Hence, there is no evidence on record to prove that the words uttered by accused were amounting to intentional insult with intent to provoke breach of the peace. Thus, on the basis of evidence on record the undersigned is of the considered opinion that offence under section 504 IPC has not been proved against the accused.
31. In view of the above stated discussion, it is held that the prosecution has failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused for the benefit of doubt. One more thing is to be noted that due to previous civil litigation qua property between the families of the accused and victim, the chances of false implication of the accused cannot be ruled out. Infact victim has made improvement in her testimony as for the first time in Court she stated that accused pushed her on breast while this fact was nowhere mentioned earlier and not stated by other witnesses, this change in version makes the victim an unreliable witness. Therefore, the accused Shivam @ Jatin is hereby acquitted of the charges levelled against him in the present case.
Requirements of Section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
GAJENDER Digitally signed by
GAJENDER SINGH
SINGH NAGAR
Date: 2020.10.29
NAGAR 14:22:18 -04'00'
ANNOUNCED IN THE OPEN GAJENDER SINGH NAGAR)
COURT ON 28.10.2020 ACMM-02 (CENTRAL)/DELHI
Containing 13 pages all signed by the presiding officer.
GAJENDER Digitally signed by
GAJENDER SINGH
SINGH NAGAR
Date: 2020.10.29
NAGAR 14:22:47 -04'00'
(GAJENDER SINGH NAGAR)
ACMM-02 (CENTRAL)/DELHI
FIR No. 210/14 State Vs. Shivam @ Jatin PS: Hauz Qazi Page 13/13