Delhi District Court
State vs . Sanjay Sharma on 15 March, 2023
IN THE COURT SH. KAUTUK
METROPOLITAN MAGISTRATE - 04 : NORTH :
ROHINI COURTS : NEW DELHI
Cr. Case 5946/2017
STATE Vs. SANJAY SHARMA
FIR No. 510 /2017
PS Prashant Vihar
U/s 509/506 IPC
JUDGMENT
A Registration Number 5946/2017
B Name of the State
complainant
C Name of the accused & Sh. Sanjay Sharma
his parentage and S/o Late Shyam Sunder Sharma
address R/o H. No. M-8, Budh Vihar, Phase-
1st, Delhi.
D Offence Complained of 509 IPC
E Date of commission of 27/09/2017
offence.
F Date of Institution 06/11/2017
G Offence Charged 509/506 IPC
H Plea of the accused Pleaded not guilty.
person
I Order Reserved on 22/02/2023
J Date of Pronouncement 15/03/2023
K Final Order Acquitted for offence u/s 506 IPC
Convicted for offence u/s 509 IPC
Vide this judgment the accused is being convicted of the offence punishable under Section 509 Indian Penal Code (hereinafter referred to as "the act") in this case FIR No. 510/2017 Police Station Prashant Vihar for the reasons mentioned below.
Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 1 of 151. CASE OF PROSECUTION :
Briefly stated, the case of the prosecution is that on 27/09/2017 at about 10.40 am, at outside Court Room No. 107, Rohini Court Complex, Delhi, accused with the intention to insult the modesty of the complainant Ms. Bina uttered abusive and filthy language to her, which was heard by her and accused also made filthy gesture towards complainant, which were seen by her and further, accused criminal intimidated the complainant to eliminate her husband with the intention to cause alarm to her mind. As such, it is alleged that the accused has committed the offence punishable u/s 509/506 IPC, for which FIR No. 510/2017 was registered at Prashant Vihar PS, New Delhi.
2. Charge:
In compliance of the procedural mandate u/s. 173 CrPC, charge-sheet against accused was filed in the present matter, upon completion of investigation.
Accused person was summoned to face trial and was supplied with the copy of the charge-sheet as per s. 207 CrPC.
On the basis of the charge-sheet, a charge for the offences punishable u/s. 509/506 IPC was framed against the accused person, to which he pleaded not guilty and claimed trial.
3. Prosecution Evidence:-
3(a). PW-1 Smt. Beena (victim/complainant) has deposed that on 27.09.2017, she along with her husband Dinesh Kumar went to the Rohini Court, Room No. 107 the and concerned Judge had directed them to reappear around 11:30 am. PW-1 further Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 2 of 15 deposed that she along with her child came out of the Court and was standing near the Court, at that time accused Sanjay Sharma was standing there and he was making unwelcome explicit gestures ("gande gande ishare" ) towards her, however, she ignored the gesture of the accused at that time. PW-1 further deposed that the accused also used to make indecent gesture towards her on prior instances as well and on that day, she raised the objection and stated to the accused "tu kya bakwass kar rha hai", thereafter, accused started using abusive language against her by saying "tu to hai he randi, tu to hai he aisi, tuje to nangi kar ke kothe par nachaunga" and accused also used other filthy language against her. PW-1 further deposed that in the meanwhile, her husband Dinesh reached there and she narrated the whole incident to him and her husband called at 100 no. and after some time, police official reached there and police official brought accused to the police post, Rohini Court. PW-1 further deposed that accused had also filed a false case of cheque bounce against her in Court room no. 107 Rohini Court. Further, accused had pressurized her to compromise the matter. PW-1 further deposed that accused had also pleaded guilty before her in the police post, Rohini Court. PW-1 further deposed that she made the complaint to the police official ie Ex. PW-1/A. The statement U/s 164 CrPC is Ex. PW-1/B. Further, PW-1 has correctly identified the accused in the Court.
In her cross-examination, PW-1 has deposed that at that time of incident, accused was standing near the stairs and she was feeding her children at the stairs of room no. 107 and accused was standing near by to her and accused was stalking toward her. PW-1 further deposed that accused was standing at Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 3 of 15 opposite side of her and she was standing at the time of incident. PW-1 further deposed that two or three persons had witnessed the incident of misbehaving and using of abusive language with her by the accused. PW-1 further deposed that the site plan was not prepared in her presence, however, she had instructed the IO as to the place of the incident for preparation of site plan. Further, PW-1 has denied all other suggestions made to her during cross- examination.
3(b). PW-2 Sh. Dinesh Kumar has deposed that on 27/09/2017, he along with his wife Beena had gone to the Rohini Court at Room No. 107, where accused Sanjay Sharma had falsely lodged a case U/s 138 NI Act against his wife Beena, and concerned Ld. PO instructed them to reappear at around 11:30 am, thereafter, they came out from the court room and in the meanwhile he went to washroom. PW-2 further deposed that when he came back from the washroom, found his wife Beena weeping and she narrated about the incident he asked the accused not to do the same, to which accused replied to his wife " ki tujhe agali Diwali nahi dekhne dunga" and at that time, accused also misbehaved with him with the use of filthy language against him and his wife. PW-2 further deposed that he made a call at 100 no. and his wife made the conversation at 100 number. Thereafter, police official reached at/infront of court room no. 107 and police had taken the custody of the accused and took him to the police post Rohini Court. PW-2 further deposed that when the police official reached there, counsel for accused i.e. Advocate Sh. Waseem Ansari also misbehaved with the police official as the concerned counsel tried to defend the accused at that time and further, Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 4 of 15 police official arrested the accused. PW-2 has correctly identified the accused present in the court.
In his cross-examination, PW-1 deposed that when he went to washroom, the incident took place behind him, however, the accused used the filthy language against his wife in his presence. Further, PW-2 has denied all other suggestions made to him during cross-examination.
3(c). PW-3 WHC Hiramani has deposed that on 27.09.2017, she was posted as W/Ct. Rohini Chowki inside the court complex and on that day, victim Beena Devi came to the Chowki and narrated that accused has misbehaved with her (gandi-gandi gaaliyan de rha hai, badtameezi kar raha). PW-3 further deposed that she along with IO/ASI Mahipal took down the statement of the victim in Sankarman Kaksh and IO also prepared the site plan and recorded statement u/s 161 Cr.PC of PW-3.
In her cross-examination, PW-3 deposed that accused was brought to the PP by IO along with Ct. Mayaram after 11.00 am. PW-3 has denied all other suggestions made to her during cross-examination.
3(d). PW-4 HC Mayaram Khatana has deposed that on 27.09.2017, he was posted at PS Prashant Vihar as Constable and on the said date, IO/ASI Mahipal received a call vide DD No. 18PP regarding happening of an incident at Court Room No. 107 and he along with IO went to court no. 107 to carry out investigation. PW-4 further deposed that outside the court, they met victim Beena and she narrated that accused has misbehaved with her and she also stated that accused had also verbally abused Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 5 of 15 her (gali galoj kari). IO took down the statement of victim Ex.
PW1/A and prepared tehrir. PW-4 further deposed that IO handed over tehrir to him for registration of FIR and he went to the PS for registration of FIR. After the registration of FIR, PW-4 came back to the Chowki Rohini Court and handed over copy of FIR along with original rukka to the IO. PW-4 further deposed that accused was arrested vide arrested memo Ex. PW-4/A and personally searched vide search memo Ex. PW-4/B. The accused was released on bail after furnishing of bail bond ie Mark Z. In his cross-examination, PW-4 deposed that accused arrived at Police Post on his own and remained at PP (Police Post) till 04.30 pm and IO recorded statement of complainant, made formal arrest of accused and personally searched. Further, PW-4 has denied all other suggestions made to him during cross-examination.
3(e). PW-5 SI Mahipal Nehra has deposed that on 27.09.2022, he was posted at PS Prashant Vihar as ASI and on the said date, he received DD No. 18 PP regarding happening of an incident infront of Court Room No. 106 and thereafter, he along with Ct. Mayaram went to the spot and there they met the complainant/victim Beena and she narrated about the incident. Thereafter, the victim and her husband was brought to PP Rohini Court, in Sankarman Kaksh (Interrogation Room), the statement of the victim was recorded infront of W/Ct. Hiramaniie Ex. PW1/A. PW-5 further deposed that tehrir (Ex. PW5/A) was prepared by him and handed over to Ct. Mayaram for registration of FIR but the said tehrir does not contain his signature. Ct. Mayaram after registration of FIR came back to PP Rohini Court Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 6 of 15 and handed over copy of FIR and original rukka to him. PW-5 further deposed that the complainant/victim was taken to the spot where incident took place and site plan Ex. PW5/B was prepared and thereafter, he along with Ct. Mayaram, victim and her husband came back to PP Post and the accused was already standing outside the PP Post. PW-5 has correctly identified the accused present in the court. PW-5 further deposed that the accused was interrogated and arrested vide arrest memo Ex. PW4/A and personally searched vide memo Ex. PW4/B. PW-5 further deposed that the accused was released on bail vide Ex. PW5/C and on 10.10.2017, statement u/s 164 Cr.PC of the victim as Ex. PW1/B was recorded in the Court.
In his cross-examination, PW-5 deposed that accused along with his counsel Adv. Wasim Ansari, met him at PP at around 01.45 pm, where he had seen the accused for the very first time. PW-5 has denied all other suggestions made to him during cross-examination.
3(f). It is pertinent to record that during his statement u/s. 294 CrPC, accused has admitted the preparation of following documents.:
• Present FIR along with Certificate u/s 65 B of Indian Evidence Act, Ex. A-1.
• DD No. 18PP, dt. 27/09/17 PS Prashant Vihar, Ex. A-2. • TIP proceedings dt. 10/10/2017, Ex. A-3.
4. STATEMENT OF ACCUSED:
In order to allow the accused person to personally explain the incriminating circumstances appearing in evidence Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 7 of 15 against him, the statement of the accused person was recorded without oath under Section 281 read with Section 313 CrPC.
In reply, the accused stated that the complainant along with her husband borrowed money from him as well as his father in law and issued two cheques in discharge of legally enforceable liability, out of which one case is pending against the complainant in the court room no. 107, Rohini Courts, Delhi. Accused further submits that in order to coerce him for withdrawal of the said matter, the complainant in present matter has filed false case against him and the husband of the complainant namely Dinesh Kumar along with his associates misbehaved and outrage the modesty of his wife namely Smt. Mamta Sharma, for which a FIR No. 1527/15, PS Vijay Vihar, U/s 354/354B/506/323/34 IPC, was registered and the same is pending in court room no. 106, Rohini Court, Delhi. Accused further submits that on the day of incident, he was taken to PP Rohini Court by the Police men where Dinesh Kumar with the help of said police men pressurized him to compromise and withdraw the above said both cases. Accused further submits that he wants to lead defence evidence.
5. DEFENCE EVIDENCE:
5(a). DW-1 Vinod Thakur has deposed that on 27.09.2017, he came along with accused Sanjay Sharma in Court Room No. 107 and the matter got pass-over as some bank witness was supposed to come, thereafter, he along with accused was standing outside the court room, gallery area. DW-1 further deposed that due to heavy rush, Ld. Counsel for accused, asked the victim (lady) to get a seat in front of the court room and the victim took the chair Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 8 of 15 and started feeding the child, thereafter, out of blue, victim came shouting towards them using bad language stating that the accused has verbally abused her and meanwhile her husband namely Ajay also came from behind and he was also abusing the accused and him. DW-1 further deposed that immediately a 100 number call was made by the victim and the police official came and took them downstairs to the chowki and he was in an utter shock as to suddenly what has happened.
In his cross-examination, DW-1 deposed that it is a concocted story by the victim just to implicate the accused again as there are previous cases filed between the victim and the accused person. DW-1 has denied all other suggestions made to him during cross-examination.
6. APPRECIATION OF EVIDENCE AND MARSHALLING OF THE FACTS:
There is no gainsaying that the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. This being the factual, evidentiary and the legal position of the present case, let us analyse whether the prosecution has been able to successfully prove the guilt of the accused person on the touchstone of "beyond reasonable doubt".
6(a). Allegation qua s. 506 IPC:
• Evidence on record: PW-2 in his deposition has stated in his examination in chief that accused had threatened his wife by stating to her that "ki tujhe agali Diwali nahi Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 9 of 15 dekhne dunga". In his cross-examination PW-2 has deposed that the said words were stated by the accused in his presence.
PW-1 has not deposed on the similar lines and apart from the alleged utterances made by the accused pertaining to s. 509 IPC, no specific deposition for any threat given by the accused has been deposed by PW-1.
• Appreciation of evidence: Cumulative reading of the evidence in entirety would render the case of the prosecution doubtful. PW-1/complainant in her statement u/s. 164 CrPC had deposed on similar lines qua the threat given by the accused ("tere pati ko Diwali nahi dekhne dunga" ). However, the said statement was not retreated in the deposition of PW-1. In the considerate opinion this would tantamount to material omission on the part of witness, as the same constitutes the essential ingredient for bringing home charge u/s. 506 IPC. The version supplied by PW-2 is also not reliable on two counts. Firstly, as per the version supplied by PW-1 in her statement u/s. 164 CrPC husband of the complainant i.e. PW-2 had reached the place of incident only after the said threats were given by the accused person, in contradistinction to deposition made by PW-2. Secondly, perusal of the statement of PW-1 made u/s. 161 CrPC reflect that no such allegation qua the threat was made by the witness at the time of recording of the statement and the same has been materially improved at the time of the examination during trial. Thus, rendering the allegation qua criminal intimidation marred with improbabilities and contradictions. The core ingredient of Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 10 of 15 criminal intimidation has not been proved. Accordingly, the unequivocal conclusion that arises from the record is that the prosecution has failed to prove beyond reasonable doubt the allegations qua criminal intimidation and the accused stands acquitted of the charges u/s. 506 IPC.
6(b). Allegation qua s. 509 IPC:
• Evidence on record: PW-1 has stated in his deposition that accused used filthy language against her and in specific stated that "tu to hai he randi, tu to hai he aisi, tuje to nangi kar ke kothe par nachaunga".
PW-2 has deposed that when he returned from the washroom he saw his wife weeping and upon query his wife had reiterated the utterance alleged to have been made by the accused person.
It is the case of the defence that the entire case of the complainant is false and fabricated with the sole motive to pressurize the accused to withdraw the cases filed against the complainant. It is argued on merits that no independent witness has been examined by the prosecution even though the incident had taken place in court. The defence has also relied upon the factum that it has surfaced in the cross- examination of the witness that the incident had taken place near the stairs of court room no 106, however the said fact has not been disclosed in the complaint made to the police and the defence has further relied upon the sketch memo which is Ex. PW-5/B. Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 11 of 15 • Appreciation of evidence:
➢ Evidentiary value of statement made by PW-2: It is an undisputed factum that PW-2 had arrived at the place of incident after the utterance pertaining to s. 509 IPC had been allegedly made by the accused. PW-2 was not privy to the entire incident and his deposition qua the specific utterance was based upon the statement given to him by his wife. The deposition made by PW-2 shall be directly hit by the embargo of hearsay evidence, which as per the settled law is inadmissible in the eyes of law.
➢ Non exmination of independent witness: It is beyond res integra that non-examination of independent witnesses is not fatal to the case of the prosecution. In this regard it has been held in the case of Guru Dutt Pathak vs. State of Uttar Pradesh [CrA . 502 OF 2015] SC:
"it was further held that in the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, after referring to the decision of this Court in the case of State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case."
The upshot of the above discussion is that non- examination of public witness would not in itself be fatal to the case of the prosecution and the court has to appreciate the other corroborating evidences. The moot question which remains to be adjudicated is whether has the deposition of the victim has Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 12 of 15 remained consistent and is reliable for proving the factum of alleged utterances.
Now, a perusal of the original complaint which is Ex. PW-1/A, statement u/s. 164 CrPC which is Ex. PW-1/B and the deposition made by PW-1 manifest that the victim's stance regarding the specific utterances made by the accused person has remained consistent and unimpeached on material aspect. It is the case of the defence that the complainant has failed to state in her complaint or statement u/s. 164 CrPC that the incident took place near the stair case(as deposed in her cross-examination), instead it has been deposed that the incident took place outside court room no 106. In the considerate opinion of this court, the same would not tantamount to material omission/discrepency. The complainant cannot be expected to give a detailed description of the entire crime scene at the time of making complaint or in her statement u/s. 164 CrPC. It is not the case where the victim has completely changed the place of incident and has materially contradicted herself on the said aspect. Furthermore, the witness has herself voluntarily deposed that the stairs was situated near the court room no 106. It is beyond res integra that court cannot adopt a hyper technical approach at the time of appreciating of the evidence. It has been held in Thoti Manoher v. State of A.P. (2012) 7 Supreme Court Cases in para 38:
"....... The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored....."
In the present facts no material contradiction as to the utterances made, which forms the core ingredient of the offence u/s. 509 IPC, has been pointed out by the defence. The sole defence witness cited by the defence could not discredit the Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 13 of 15 version of the complainant qua the allegation u/s. 509 IPC. At this juncture, it would be pertinent to point out that the defence counsel has argued that complainant has falsely implicated the accused in order to ensure withdrawal of cases filed against her. There is no gainsaying that the past animosity between the parties cannot be an automatic ground for disbelieving the testimony of the victim, the same has to be corroborated with other circumstantial evidences. This being the case the fact of the utterances having been made by the accused person stands proved.
Now, once it is proved that the accused on the said date, time and place had made the utterances as alleged by the complainant, the only aspect that is left for adjudication is whether the same was made with an intent to outrage the modesty of the woman.
At this juncture, it would be expedient to reproduce the dictum of Hobble Apex court in the case of Raju Pandurang Mahale Vs. Stateof Maharastra and another reported as AIR 2004 Supreme Court 1677, wherein it was held that:
"what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman."
In the present facts the alleged utterance as proved above is "tu to hai he randi, tu to hai he aisi, tuje to nangi kar ke kothe par nachaunga". The said utterances can safely be concluded to be of such nature that would shake the decency of the woman and thus a case under s. 509 IPC is made out against the accused person.
Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 14 of 157. CONCLUSION:
Thus, the unequivocal conclusion that comes forth is that the prosecution has succeeded in establishing beyond any reasonable doubt of the culpability under s. 509 of the IPC. Accordingly, accused Sanjay Sharma stands convicted of the culpability under 509 of the IPC.
Copy of this judgment be given dasti to convict.
Announced in open court on 15.03.2023 (KAUTUK) MM-04 (North) Rohini Courts Delhi/15.03.2023 Certified that this judgment contains 15 pages and each page bears my signature.
Present judgment is being uploaded on CIS without digital signature as digital key of undersigned has expired and new digital key has not been provided as yet.
(KAUTUK) MM-04 (North) Rohini Courts Delhi/15.03.2023 Cr. Case 5946/2017 STATE Vs. SANJAY SHARMA FIR No. 510 /2017 Page 15 of 15