Delhi District Court
State vs Sh. Arshad @ Sonu on 15 September, 2017
Criminal Appeal No.27/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 27/2017
Under Section : 354/509 IPC
Police Station : Mandawali
FIR No. : 524/12
CNR No. : DLET01-002519-2017
In the matter of :-
STATE
............APPELLANT
VERSUS
SH. ARSHAD @ SONU
S/o. Late Hazi Mohd. Saifi,
R/o. H.No.9/197 Block, Khichripur, Delhi
............RESPONDENT
Date of Institution : 27.02.2017
Date of Receiving : 28.02.2017
Date of reserving judgment : 07.09.2017
Date of pronouncement : 15.09.2017
Decision : Appeal is partly allowed.
JUDGMENT
1. This criminal appeal is directed against the judgment of acquittal dated 26.10.2016, passed by ld. MM Mahila Court (East District), Karkardooma Courts, Delhi, in a case titled as State v. Arshad @ Sonu, bearing FIR No.524/12, under Section 354/509 IPC, PS Mandawali. Vide impugned judgment of acquittal, ld. MM (East) acquitted accused Arshad @ Sonu (respondent herein) for offence under Section 354/509 IPC.
BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts giving rise to this appeal are that accused/respondent herein had allegedly caught hold of hand of complainant Ms. Swati Mehra, by following her while she was Page 1 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 traveling in a rickshaw. Accused used vulgar language in her presence. On the complaint of complainant, FIR No.524/12 was registered against accused Arshad @ Sonu for offences punishable under Section 354/509 IPC.
3. After completion of investigation, chargesheet was filed against accused for aforesaid offences and trial court framed charges against him for aforesaid offences on 29.04.2014, to which he pleaded not guilty and claimed trial. After completion of prosecution evidence by examining five witnesses, accused was examined under Section 313 Cr.P.C on 08.03.2016. He opted to lead evidence in his defence and examined himself as DW1 in the present case. Thereafter, defence evidence was also closed. Final arguments were heard and trial was concluded by acquitting the accused vide impugned judgment dated 26.10.2016.
GROUNDS :-
4. Being aggrieved of impugned judgment of acquittal dated 26.10.2016, State preferred this appeal on the following relevant grounds :-
● That the trial court failed to appreciate testimony of complainant i.e. PW1/Ms. Swati Mehra, wherein she had clearly deposed about the incident and explained the role of accused. ● That the trial court failed to appreciate testimony of PW1, wherein she deposed that when she crossed Patparganj Village, she observed that accused was following her and accused was using vulgar language against the complainant. When she reached near Mother Dairy Plant, accused tried to hold her hand and he threatened the rickshaw puller and instructed him to get down from the rickshaw. After that, she reached near PCR van, which was parked outside the gate of Mother Dairy Plant and informed about the incident to the PCR Officials.Page 2 of 7 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 ● That the trial court failed to appreciate the testimony of PW3/HC Subhash, wherein he had deposed that complainant came to PCR van and told about the said incident to him.
● That the trial court failed to appreciate the testimony of PW5/SI Virender Kumar, wherein he deposed that he recorded statement of complainant and other witnesses, who were present at the spot at the time of incident on 07.11.2012.
ARGUMENTS :-
5. Ld. Addl. PP submitted on behalf of State that the victim of the offence i.e. PW1 made categorical allegations against the accused and her testimony remained intact during cross-examination as well.
He submitted that the rickshaw puller could not be expected to wait at the spot so as to be found by IO of the case and to be made a witness in this case. His particulars could not have been ascertained by IO and his absence as a witness in the case should not have been treated as fatal for the case of prosecution. Trial court was thus not justified to disbelieve the case of prosecution and the testimony of other PWs, on the grounds that rickshaw puller was not produced as eye witness.
6. Per contra, ld. LAC for accused argued that the complaint did not mention that accused had addressed the complainant while he was allegedly uttering abusive words. Admittedly there was no case of assault or force used against the complainant. The complaint was prepared by mother of complainant with many corrections and the prosecution could not prove the intention of accused for the purpose of Section 354 IPC. He further submitted that rickshaw puller was not cited as witness. Though, PW1 alleged that there was smell of alcohol coming from the mouth of accused, but accused was not medically examined on same day to establish this fact. Ld. LAC submitted that police registered the FIR because a complaint was Page 3 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 given by prosecutrix, though such complaint was given under misconception. Accused as DW1 said that rickshaw puller had hit him on his leg and on objection being raised by him rickshaw puller and complainant threatened him to teach a lesson. He further submitted that call was made at police station at 9 PM, though, the incident had taken place between 7 to 8 PM. Thus, the allegations were made as after thought story.
APPRECIATION OF ARGUMENTS, FINDINGS AS WELL AS DECISION :-
7. On perusal of statement under Section 313 Cr.P.C and testimony of accused given under Section 315 Cr.P.C, I find that it is not in dispute that on the date of incident between 7 to 8 PM, PW1 and accused were involved in some dispute. According to accused, while he was crossing the road, a rickshaw puller carrying PW1 hit him against his right leg. He shouted and PW1 responded to teach him a lesson. Thereafter, PW1 made complaint to PCR officials, who were standing near Mother Dairy, Pandav Nagar and after some time police officials came at the spot and apprehended him. Thereafter, this false case was registered against him at the instance of complainant.
8. I have referred to aforesaid testimony of accused given as DW1 because such testimony of accused establishes the facts that PW1 and accused were at logger head and that PCR van was present near Mother Dairy, Pandav Nagar and that accused was apprehended by police officials some time after this incident of being at logger head and he was taken to police station. Thus, the only dispute revolves around the allegations made by PW1 that accused had been following her and using vulgar language and in that process he also tried to hold her hand. PW1 also testified that accused intimidated rickshaw puller and asked him to get down from the rickshaw. At that time also he was using vulgar language. PW1 Page 4 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 noticed one PCR van standing near Mother Dairy and she requested rickshaw puller to drop her there. She made call to her father on phone and she also reported the matter to PCR officials, who accompanied her and who apprehended the accused from other side of the road, at the instance of PW1/prosecutrix.
9. As far as question of involving rickshaw puller in the investigation and to cite him as a witness is concerned, I find merit in the contention of ld. Addl. PP that rickshaw puller was not expected to keep waiting for apprehension of accused and thereafter, to visit police station along with both the parties so as to become a witness in this case. As per normal course of action, earning bread remains major concern for any rickshaw puller and even other public persons nowadays do not wish to be involved in any case out of their anxiety to be harassed either by police or by repeated visits to the court as witness. Therefore, if rickshaw puller had left the spot after dropping PW1, there was nothing unnatural in this circumstance. For such reasons, IO was obviously helpless not to find him. But just because rickshaw puller was not cited as witness, it cannot be said that the testimony of PW1 cannot be reliable. Her testimony has to be tested on the parameters of any inconsistency arising out of her cross-examination or other materials placed on the record.
10.As already observed herein above, the limited dispute is that whether accused had used vulgar language in the presence of PW1 and had tried to hold her hand or that whether PW1 had threatened accused to teach a lesson to him because accused objected against the hit by the rickshaw. In normal course of action, if the accused was hit by the rickshaw puller, then a reaction was bound to happen from the side of accused. Till this moment there could not have been anything for PW1 to get offended, because if the reaction of the accused would have been within limits of decency and only directed against rickshaw Page 5 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 puller, then there was nothing for PW1 to be worried. However, the question is that whether the reaction of accused was within the limitation of decency or he did use abusive language in the presence of PW1 and within her hearing so as to offend her and insult her modesty.
11.On perusal of testimony of PW1, I find that she reiterated even during her cross-examination that accused was abusing her and making lewd comments and also threatening rickshaw puller. The threats for rickshaw puller would have occasioned on account of collusion between accused and rickshaw, which means that the story of giving threats to rickshaw puller as presented by PW1 was not baseless story. It is normal tendency for any person to justify his or her act and not to realize his or her mistakes. While reacting against collusion with rickshaw, it is very much probable that accused would have used vulgar or abusive language and when PW1 would have tried to intervene he would have continued using such language thereby insulting the modesty of PW1. Therefore, even if I ignore the allegations of holding hand of PW1 or the allegations of following her, I still find that accused while using abusive and vulgar language within hearing of PW1, did commit offence under Section 509 IPC. The intention to insult the modesty is to be gathered from the act. It is within common knowledge of every prudent person that no woman would feel comfortable with abusive and vulgar language being used in her presence. Still, if accused used such language, then it cannot be said that accused did not intend to insult the modesty of PW1.
12.Therefore, I do find that the trial court committed error while acquitting the accused/respondent herein for offence under Section 509 IPC. As far as Section 354 IPC is concerned, I do find that the testimony of PW1 is not sufficient to invoke this provision against the accused. The allegation of holding hand of PW1 might be Page 6 of 7 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.27/2017 exaggerated part of version. If such allegations are ignored, then there is nothing to suggest that accused actually assaulted or used criminal force against PW1 so as to outrage her modesty.
13.In view of my foregoing discussions, findings and observations, appeal is partly allowed. Acquittal of accused for offence under Section 354 IPC is upheld. However, acquittal under Section 509 IPC is set aside. Accused is convicted for offence punishable under Section 509 IPC. This offence is punishable with simple imprisonment for maximum term of three years and with fine. The facts of the case do show that the alleged act of the accused was an outcome of heat of the moment. There is no allegation from PW1 that accused had been harassing her since long. It was apparently first confrontation between PW1 and accused. The poor financial background of accused is evident from the fact that he was unable to even engage a private lawyer during trial and he was being represented by a counsel from legal aid throughout the trial as well as in the present appeal. Accused remained in custody for one day.
14.In these circumstances, accused is sentenced to imprisonment already undergone and to pay a fine of Rs.2000/-. In default of payment of fine, he shall suffer simple imprisonment for a period of 7 days.
15.Copy of judgment along with TCR be sent back to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2017.09.15
17:21:07 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 15.09.2017 Special Judge (PC Act) CBI, East
(This order contains 7 pages) Karkardooma Courts, Delhi
Page 7 of 7 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi