Delhi District Court
Title State vs . Anand Prakash Gupta on 24 April, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
JUDGMENT
FIR No. 376/2016
Police Station Mandawali
Unique Case ID No. 3818/2017
Title State Vs. Anand Prakash Gupta
Name of complainant Smt. Sunita
Name of accused Anand Prakash Gupta
S/o Sh. Prabhu Dayal Gupta
R/o D-1, Ganesh Nagar, Pandav
Nagar Complex, Delhi.
Date of institution of challan 25.11.2017
Date of Final arguments 18.04.2023
Date of pronouncement 24.04.2023
Offence complained of Under Section 323/509 IPC
Offence charged with Under Section 509 IPC
Plea of the accused Pleaded not guilty
Final order Convicted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
The allegations against the accused in brief are that on 13.10.2016 at about 3.00 p.m., near the shop of the complainant within the jurisdiction of PS Gazipur with a view to insult the modesty Digitally signed by HIMANSHI FIR No. 376/2016 State Vs. Anand Prakash Gupta page 1 of 18 HIMANSHI TYAGI TYAGI Date:
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of complainant, accused uttered a word 'randi' for the complainant. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 323/509 IPC.
02. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 509 IPC was framed by the Ld. Predecessor against the accused, to which he pleaded not guilty and claimed trial.
03. The prosecution in support of present case has examined total 04 witnesses.
04. PW1 is Smt. Sunita Chand, who is the complainant in the present case. She deposed that she was running a shop of cosmetics which was situated adjacent to the shop of accused. She further deposed that in the month of October 2016, when she was vacating the said cosmetic shop, accused started abusing her and beaten her from slipper, on which she called at 100 number. She deposed that thereafter PCR van came and on arrival of the PCR van, accused asked for apology, however, she was not agree for the same and gave a written complaint to PS Mandawali which is Ex. PW1/B. She deposed that police took her to the LBS hospital where she got medically examined. During the investigation, her statement u/s. 164 Cr.PC Ex. PW1/C was recorded. She deposed that prior to the date Digitally signed FIR No. 376/2016 State Vs. Anand Prakash Gupta page 2 of 18 by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:52:09 -0700 of incident, the accused was harassing her for last one year, he used to abuse her, throw the articles from the shop, also used to say ' meri baat maan ja, nahi toh accha nahi hoga' and also used to say that 'tu dhandha karti hai, mere sath bhi karle'. She further deposed that accused used to come with different persons and threatended her to vacate the shop. She deposed that her said shop was running beneficially, but due to the harassment of the accused, she vacated the said shop from there. She deposed that after vacating the said shop, she started running the shop on footpath of the road, but accused also used to come on the shop of footpath and threatened that if she will not withdraw the present case, accused will kill her son. The witness was cross-examined by Ld. Defence Counsel.
05. PW2 is Ct. Shyam Singh, who deposed that on 13.10.2016, he alongwith HC Kuldeep reached at the spot, where they came to know that complainant already went to the PS. He deposed that thereafter they returned to the PS where they met the complainant and IO/HC Kuldeep recorded her statement. He further deposed that thereafter, complainant was sent to the LBS hospital for MLC and thereafter, IO went to the spot with the complainant. He deposed that he got registered the FIR on the basis of the statement of the complainant and after registration of the FIR, he handed over the copy of FIR and rukka to the IO at the spot, who had recorded his statement. The witness was cross-examined by Ld. Defence Counsel.
Digitally signed by FIR No. 376/2016 State Vs. Anand Prakash Gupta page 3 of 18 HIMANSHI HIMANSHI TYAGI TYAGI Date:
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06. PW3 is HC Om Singh, who deposed that in the year 2017, the investigation of the present case was handed over to him after the transfer of HC Kuldeep Singh and after further investigation, he prepared the charge sheet and filed before the Court. The witness was not cross-examined by Ld. Defence Counsel despite giving opportunity.
07. PW4 is ASI Kuldeep Singh, who deposed that on 13.10.2016 at about 03.23 p.m., he received a call vide DD No. 26-A which is Ex. PW4/A regarding the quarrel and accordingly, he alongwith Ct. Shyam Singh reached at the spot of occurrence. He deposed that on inquiry, he came to know about the fact that complainant/victim had gone to the PS and thereafter, they returned to the PS, where he met complainant/victim, who had produced him a written complaint Ex. PW1/B in her own handwriting. He further deposed that he got medically examined the victim through W/HC Rajwati at LBS hospital, where her MLC Ex. PW4/B was prepared.
He deposed that he had gone through the MLC and endorsed the complaint Ex. PW4/C of the victim and got registered the FIR. He further deposed that he visited the spot with the complainant and prepared the site plan Ex. PW4/D at the instance of complainant. He further deposed that he searched the accused in the nearby area but in vain. He deposed that on 16.10.2016, accused Anand Prakash Gupta came to PS and he was arrested after inquiry vide arrest memo Ex.
Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 376/2016 State Vs. Anand Prakash Gupta page 4 of 18 TYAGI Date:
2023.04.25 03:52:22 -0700 PW4/D and personally searched vide personal search memo Ex. PW4/F and he thereafter was released on police bail. He deposed that on 17.10.2016, he got recorded the statement of the victim u/s. 164 Cr.PC Ex. PW1/C before the Ld. MM Ms. Nabeela Wali. He deposed that during the investigation, he recorded the statement of witness Ct. Shyam Singh. The witness was cross-examined by Ld. Defence Counsel.
08. The statement of the accused u/s. 294 Cr.P.C. was recorded on 29.11.2022 where he admitted the statement u/s. 164 Cr.PC Ex. PW1/C and preparation of MLC bearing No. 015211 dated 13.10.2016 Ex. PW4/B. Therefore, witnesses i.e. Ld. MM Ms. Nabila Wali and Dr. Sunil Dixit were dropped from the list of witnesses.
09. After examination of the above four prosecution witnesses, at request, PE was closed as no other witnesses was cited by the prosecution.
10. Statements of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and has been falsely implicated in the present. He further stated that he had a medical shop at the time of incident and the complainant ran a food stall just outside his shop. He deposed that the complainant cooked the food at the stall due to which, smoke used to Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 376/2016 State Vs. Anand Prakash Gupta page 5 of 18 TYAGI Date:
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be generated and his customers and other nearby shopkeepers faced problem due to this. He stated that he also faced problem due to the smoke and on objection from all of them, the complainant shifted her shop. He further stated that due to this reason, complainant was irritated and while she was taking away her belongings from the staff, she created a scene and abused the persons present around her. He stated that he was not present during all this at the place of incident and got to know about the incident when the police called him at the PS. He refused to lead any defence evidence.
11. On 20.03.2023, the prosecution had filed an application u/s. 216 Cr.PC for framing of supplementary charge u/s. 323 IPC against the accused. By order dated 18.04.2023, this application was dismissed.
ARGUMENTS:
12. Final arguments heard from Sh. Satish Shukla, Ld. APP for the State and from Ld. Counsel for accused Sh. Rahul Sharma.
During final arguments, The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and Digitally signed by HIMANSHI FIR No. 376/2016 State Vs. Anand Prakash Gupta page 6 of 18 HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:52:36 -070 prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
FINDINGS AND REASONS THEREOF:-
13. I shall consider whether the prosecution has succeeded in establishing the criminality of the accused.
14. Accused has been indicted for the offence u/s. 509 IPC.
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."
15. Bare 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, Digitally signed by FIR No. 376/2016 State Vs. Anand Prakash Gupta page 7 of 18 HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:52:42 -0700 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 from the use of a criminal force or assault against her, Section 354 was introduced into IPC, with a specific object. The 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. The emphasis was on the aggressions made on the modesty of a woman. The legislature specifically intended that any assault on a woman's modesty has to be curbed and controlled effectively. Later, the 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. The 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 the 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 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
FIR No. 376/2016 State Vs. Anand Prakash Gupta page 8 of 18 2023.04.25 03:52:49 -070 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. (M.M. Haries v. State of Kerala, (Kerala) 2005 Cri.L.J. 3314 ).
16. While explaining the object of Section 354 and 509 IPC in State of Kerala v. Hamsa, (1988) 3 Crimes 161 , the Hon'ble High Court of Kerala held as follows:
"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." HIMANSHI Digitally signed by HIMANSHI TYAGI TYAGI Date:2023.04.25 03:52:55 -0700
FIR No. 376/2016 State Vs. Anand Prakash Gupta page 9 of 18
17. The learned counsel for the accused have pointed out towards the various discrepancies and improvements in the testimony of the prosecution witnesses particularly the one deposed by the victim Smt. Sunita Chand. It has been pointed out that the victim had stated that she ran a cosmetic shop where in reality she ran a food stall and conducted this business without a proper license. It is also pointed that the victim could not even tell the name of the hospital where her MLC was conducted.
18. It is a settled law that minor discrepancies on trivial matters would not demolish the case of the prosecution unless it affects core of the prosecution case. In the case of State of UP Vs. Santosh Kumar (2009) 9 CC 626, it has been held by the Hon'ble Supreme Court as under:- " In any criminal case where statements are recorded after a considerable lapse of time, some inconsistencies are bound to occur. But it is the duty of the Court to ensure that truth prevails and if on material particulars, statement of witnesses is consistent, then it cannot be discarded only because of minor inconsistencies."
19. In the case of Bhoginbhai Hirjibhai Vs. State of Gujarat 1983 CRI.L.J.1096, it was held that: St. Vs. Arvind FIR no.29/08 P.S. Vasant Vihar "Discrepancies which do not go to the root of the matter and shake the basis version of the witnesses therefore Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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FIR No. 376/2016 State Vs. Anand Prakash Gupta page 10 of 18 0700 cannot be annexed with undue importance. More so when that all important 'probabilities factor' echoes in favour of the version narrated by the witnesses."
20. Thus, while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. In this context reference may also be made to decisions of State of U.P. v. M.K. Anthony (1985) 1 SCC 505 wherein the Hon'ble Supreme Court held as follows:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief....."
21. Similarly, in Leela Ram v. State of Haryana (1999 (9) SCC 525), it has been observed that no true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness Digitally signed HIMANSHI by HIMANSHI TYAGI TYAGI Date: 2023.04.25 03:53:07 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 11 of 18 who is well tutored can successfully make his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in the jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
22. It is a common practice in during trial in courts to make out contradictions from the previous statement of a witness for confronting him/her during cross-examination. Mere inconsistency in evidence is not sufficient to impair the credit of the witness. No doubt Section 155 of the Indian Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement but a reading of this section clearly indicates that all inconsistent statements are not sufficient to impeach the credit of the witness. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC Digitally signed 1012). HIMANSHI by HIMANSHI TYAGI TYAGI Date: 2023.04.25 03:53:13 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 12 of 18
23. The complainant/PW1 has supported the case of the prosecution in all material particulars. The complainant (PW1) stood the test of cross examination. Her evidence turned out to be totally credible and trustworthy. The accused also failed to prove that the present complaint is motivated or he has been falsely implicated in the present case. In fact, in his statement u/s 313 Cr.PC the accused admitted that the complainant ran a food stall outside his shop and that on objection from all of them, the complainant shifted her shop. His only defence is that he was not present at the spot and got to know the incident when police called him for questioning. However, the accused has not put such defence at the time of cross examination of PW1(complainant). Even, no suggestion on these lines was put to the complainant during her cross examination. The complainant has categorically stated in her evidence that the shop of the accused was adjacent to her shop and while she was vacating the same, accused started abusing her and beating her. She wrote the words the accused used against her as she hesitated to say those words in open court, which are follows: "tu randi hai, dhandha karti h, hamare saath bhi karle." She further stated that on arrival of PCR van accused asked for apology.
24. In the present case, I find no material or vital inconsistencies in the statement of PW1. The only discrepancy is that Digitally signed by the complainant stated that she gave her statement to the IO at the spot HIMANSHI TYAGI HIMANSHI TYAGI Date:
2023.04.25 03:53:19 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 13 of 18 whereas the IO, examined as PW 4 and PW2 another police officer who accompanied the IO, stated that the statement of the complainant was recorded in the PS. But this inconsistency is only minor and does not go to the root of the matter as the victim has deposed everything clearly about the time of the incident, sequence of circumstances in which incident happened and the manner and words used by the accused.
25. The Ld. Counsel for the accused had also argued that no independent or public persons were examined as a witness and thus the version of the complainant is not corroborated. Regarding the non examination of public witness, it is a settled law that in sexual offence cases, the accused can be convicted on the sole testimony of the prosecutrix if the court finds it truthful, trustworthy and credible. The prosecution case cannot be seen with doubt only for non-examination of public witnesses. It is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact (Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Further the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a general public persons are unwilling to become a witness. The courts have Digitally signed by FIR No. 376/2016 State Vs. Anand Prakash Gupta page 14 of 18 HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:53:25 -0700 also observed that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
26. The sworn deposition of the complainant is found to be reliable, credit worthy and truthful. Non examination of independent public witnesses does not raise any doubt on the case of the prosecution and is not fatal. In the present case, there is nothing on record to show that the evidence of the complainant (PW1) is motivated or unreliable. The accused had merely stated in his examination u/s Section 313 CrPC that complainant had filed a false case. He stated that he and other nearby shopkeepers faced problem due to her food stall business, and on objections by all of them, she has shifted her shop. It is stated that complainant was irritated for this reason and she abused other persons present and thus present false case is filed against the accused. The accused stated that he was not present at the spot.
27. Firstly, it is not the statement of the accused that complainant had filed such alleged false cases against other shop owners as well. Secondly, the victim has categorically stated that accused was present on the spot and even sought apology on arrival of PCR van. Therefore, the burden of the proof shifted upon the accused Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:53:33 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 15 of 18 to show that he was not present at the spot. The accused relied on the fact that there is no CCTV footage etc to show his presence on the spot. It was argued that there was CCTV installed at his shop and he gave the footage of the same to the IO. IO had stated in his examination that no such footage was available. If the accused had the footage to show the contrary, accused had the opportunity to lead the same in his defence. However he did not do so despite opportunity. Moreover, the mere fact that there is no CCTV footage of the incident cannot raise a presumption that accused was not present at the spot. There is direct evidence of the offence and presence of the accused in the form of the testimony of the victim. The burden to prove his absence at the spot was upon the accused which he failed to discharge. Therefore, the defence of the accused is not believable.
28. The provisions of Section 509 IPC speaks of insult to the modesty of the women by various means including utterance of words done with intention to insult the modesty of a woman, the intention of the accused is very important. It must be proved that the accused intended to insult the modesty of a woman, especially since the word 'intention' is specifically mentioned in the section. Intention and knowledge are of course states of mind. They are nonetheless facts which can be proved. They cannot be proved by direct evidence. They have to be inferred from the circumstances of each case. Such an Digitally signed by inference, one way or the other, can only be made if a reasonable man HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:53:39 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 16 of 18 would, on the facts of the case, make it. The question in each case must, in my opinion, be- will a reasonable man think that the act was done with the intention of outraging the modesty of the woman or with the knowledge that it was likely to do so? The test of the insult of modesty must, therefore, be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman. The expression "insult her modesty" must be read with the words "intending to or knowing it to be likely that he will". So read, it would appear that though the modesty to be considered is of the woman concerned, the word "her" was not used to indicate her reaction.
29. In the case at hand, the complainant/PW1 clearly stated in her evidence that accused called her randi and said Dhandha karti hai. If read all together and in the light of the above position of law then the words used by the accused indicate an act done with the intention or knowledge that it was likely to outrage the woman's modesty. The words used are quite unambiguous and itself show the intention of the accused.
Digitally
30. Therefore, I am of the considered view that the essential HIMANSHI signed by HIMANSHI TYAGI TYAGI Date:
2023.04.25 03:53:45 -0700 FIR No. 376/2016 State Vs. Anand Prakash Gupta page 17 of 18 ingredients of Section 509 IPC are duly proved by prosecution to bring home the guilt of the accused and accused is convicted for offence punishable u/section 509 IPC. In view of the above, I am of the considered opinion that prosecution in the instant case has succeeded in bringing home the guilt of the accused beyond reasonable doubt. Hence, accused Anand Prakash Gupta is convicted for the offence punishable u/s 509 IPC. Arguments on the point of sentence to be heard.
31. Copy of this Judgment be given free of cost to the convict.
Pronounced in open Court on 24.04.2023.
The Judgement contains 18 pages and each page has been signed by the undersigned. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2023.04.25 03:53:52 -0700 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 376/2016 State Vs. Anand Prakash Gupta page 18 of 18