Delhi District Court
20. It Has Been Held In Judgment Titled As ... vs . State on 15 November, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State Digitally signed
by POOJA
TALWAR
POOJA Date:
Vs.
TALWAR 2018.11.16
17:30:17
Suraj Sharma
+0530
FIR No. 575/2015
P.S Saket
JUDGMENT
1. Sr. No. of case 793/2017
2. Date of institution 16.02.2017
3. Name of the complainant Ms. Jasmine
D/o Sh. Chandervir Singh
FIR No. 575/2015 PS Saket Page- 1 of 16
R/o House No. G-18, First Floor,
East of Kailash, New Delhi.
4. Date of commission of offence 13.05.2015
5. Name of accused Suraj Sharma
S/o Late G.L. Sharma
R/o House No. 169, Jeevan
Nagar, Bhagwan Nagar, New
Delhi.
6. Offence complained of U/s 509 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 14.11.2018
9. Final order Acquitted
10 Date of such judgment 15.11.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that on 13.05.2015 complainant was present in front of Court Room No. 608 to attend a Court date. While she was waiting for her number, one Suraj Sharma was continuously staring at her and commenting. He was also abusing her in the Court. Upon her complaint, FIR FIR No. 575/2015 PS Saket Page- 2 of 16 was registered. On conclusion of investigation,
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, charge for the offence of under section 509 IPC was framed.
3. In order to prove its case, the prosecution examined 4 witnesses in all.
4. Complainant Ms. Jasmine was examined as PW1. She deposed that on 13.05.2015 at about 10.00 am, she was present in front of Court room No. 608 and waiting for her call. Accused Suraj Sharma was sitting on the seat situated at waiting place in front of the said Court. Accused was continuously staring at her and he also made gestures of fingers towards her. He was murmuring some words but she could not hear the said words. She avoided the said incident. In the meantime, the matter was called and she went inside the Court room. After hearing, she came out from the court and reached at gate of Court room, accused overtook her and abused her with filthy language i.e. 'Randi Court Me Aaayee Hai'. Thereafter, she asked the accused what was he saying? Then the concerned FIR No. 575/2015 PS Saket Page- 3 of 16 Judge directed her to leave the Court and accused was asked to remain inside the Court. On the direction of Court, she left the Court premises and reached at Gate No. 3, Saket Court Complex. Thereafter, she called her father and also called the police at 100 number and narrated the abovesaid facts to them. She further deposed that after 10 minutes of the call, police officials came there. She narrated the abovesaid facts to police officials. Her father also reached at Gate No. 3 thereafter, she alongwith her father went to PS Saket where she gave a written complaint to police officials. The said complaint is Ex.PW1/A. Accused also reached at police station. She requested the police officials to check the CCTV footage of the spot but the police officials did not check the same nor took any action against accused. At around At around 10.30 pm she alongwith her father left the police station. She gave her statement under section 164 Cr.P.C. before the Ld. MM which is Ex.PW1/B. Witness correctly identified the accused before the Court.
5. ASI Gurdeep Singh was examined as PW2. He deposed that on 13.05.2015, he was working as duty officer and his duty hours were from 4.00 pm to 12.00 am (midnight). At about 7.45 pm, SI Rajdeep handed over a rukka to him. On the basis of FIR No. 575/2015 PS Saket Page- 4 of 16 said rukka, he registered the present case FIR. The computerized copy of same is Ex.PW2/A. He made endorsement on the rukka which is Ex.PW2/B. Thereafter, he handed over the copy of FIR and original rukka to SI Pancham Kumar to whom the further investigation of case was entrusted. He also gave certificate under section 65 B of Indian Evidence Act which is Ex.PW2/C. He produced Roznamcha pertaining to the year 2015. As per record, on 13.05.2015 at around 11.00 am. an information that one person was misbehaving with a woman near Gate No.3, Saket Court Complex was received by Duty Officer through wireless set. The said information was reduced in the Roznamcha at serial No.16-A dated 13.05.2015. The copy of same is Ex.PW2/D. The said information was also reduced on a plain paper which is Ex.PW2/E.
6. SI Rajdeep was examined as PW3. He deposed that on 13.05.2015, he was on emergency duty from 8.00 am to 8.00 pm. At around 11.00 am. he received a DD No.16 A pertaining to quarrel which took place in the Saket Court Complex. Thereafter, he alongwith Ct. Manish came at Gate No.3, Saket Court Complex where they met complainant Jasmine and one other person. Thereafter, complainant gave a written complaint FIR No. 575/2015 PS Saket Page- 5 of 16 to him which is already Ex.PW1/A. Thereafter, they returned to the police station. Complainant alongwith her relative also came at police station. He made enquiries from complainant pertaining to the incident in question. Thereafter, he made endorsement on the complaint which is Ex.PW3/A and got the FIR registered. Thereafter, the further investigation of present case was entrusted to SI Pancham after registration of the FIR.
7. SI Pancham Kumar was examined as PW4. He deposed that on 13.05.2015, the investigation of present case was assigned to him. During investigation on 03.07.2015, he took complainant to Saket Court and got her statement under section 164 Cr. P.C recorded. Complainant provided the mobile number of accused to him. Thereafter, he called the accused on 05.08.2015 and he came to police station. He served notice under section 41 (a) Cr. P.C. upon the accused which is Ex.PW4/A. After completion of investigation, he filed the chargesheet before the Court. Witness correctly identified the accused before the Court.
8. The entire incriminating evidence brought on record against the accused were put to him and his statement under section 313 Cr.PC was recorded separately. It is stated by accused that he is innocent and has been falsely implicated in the present FIR No. 575/2015 PS Saket Page- 6 of 16 case. On the date of incident i.e 13.05.2015 he was already sitting outside the Court room No. 608, Saket Court Complex. After some time the complainant alongwith her father came there and the complainant sat in front of him while her father was standing outside the lift area and her father tried to tell her something by making some gestures. After that when the matter was called they both i.e. complainant and himself entered into the Court room and got the date as there was a strike of lawyers. When they were leaving the Court during that the complainant screamed and started shouting on him. Thereafter, he returned back into the Court room and told to Ld. Judge. The Ld. Judge directed him to sit in the Court room and directed the complainant to leave the Court. After 15-20 minutes Ld. Judge permitted him to leave the Court. When he reached in the parking area he saw that the complainant alongwith police persons were standing nearby his bike. Thereafter, police officials took him to PS Saket. Complainant also threatened him that she would implicate him in a false case. The present case is filed in order to grab his property.
9. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
FIR No. 575/2015 PS Saket Page- 7 of 16
10. Accused has been charged for the offence 509 IPC for using abusive language towards the complainant and thereby insulting the modesty of complainant.
11. In order to prove the offence u/sec 509 IPC the prosecution is required to prove the following ingredients:
(a) Essential Ingredients (1) Intention to insult the modesty of a woman;
(2) The insult must be caused,
(i) by uttering any word or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or
(ii) by intruding upon the privacy of such woman.
12. PW1 Ms. Jasmine has deposed that while she was waiting for her case outside Court Room No. 608, accused who was an opponent was sitting at the waiting place. The accused was continuously staring at her and was making gestures with finger. When after attending her case, she was coming out accused abused her and uttered "'Randi Court Me Aaayee Hai".
FIR No. 575/2015 PS Saket Page- 8 of 16 Upon this, the Judge directed her to leave the Court and asked the accused to sit in the Court.
13. In her cross examination, she has stated that there are number of cases pending between her and the accused and also the civil litigation has been decided in favour of accused and he has got the possession of the property. She further stated in her cross examination, she got married with accused in the year 2009 and stayed with him till 2015. She also admitted that she went on holiday and pilgrimage with the family of accused to various places. She did not know about the first marriage of accused. She assumed the wife of accused to be his cousin and his son to be adopted son of accused.
14. Previous litigation between the parties are not disputed. It is also not disputed that both the parties are at loggerheads for a considerable period of time not only because of the property dispute but also because of the alleged relationship between them.
15. In her statement under section 164 Cr.PC, complainant has mentioned that she had come to the Court with one neighbour named Paramjeet Kaur. Said Paramjeet Kaur has neither been FIR No. 575/2015 PS Saket Page- 9 of 16 cited as a witness nor produced before the Court.
16. The incident occurred in the Court premises and it is stated by complainant in her statement under section 164 Cr.PC that accused had informed the Judge that the complainant was trying to enter into a quarrel with him due to which the complainant was asked to leave and the accused was made to sit in the Court for 10 minutes.
17. In case, the version of complainant is to be believed then she should have been first one to address her complaint to the Judge and not the accused.
18. On discerning the testimony of complainant, the same is found to be untenable as a person who is visiting the house of the accused regularly going out on holiday and having family relation would not know that he is married. The version of complainant is completely baseless and by no stretch of imagination acceptable.
19. The only witness examined by the prosecution is the complainant who has prior enmity with the accused. There is no corroborative evidence to support her version. Hence, holding the accused guilty on the sole testimony of the complainant is FIR No. 575/2015 PS Saket Page- 10 of 16 not justifiable.
20. It has been held in judgment titled as S.K. Bhalla Vs. State & Ors, 2011 (180) DLT 219 that "on reading of the above, it is obvious that intention to outrage the modesty of a woman is an essential ingredient of offence under Section 354 IPC. Language of Section 509 IPC, which also deals with the offence of insulting the modesty of a woman is also similar to Section 354 IPC. Further, on reading of Section 509 IPC, it is apparent that in order to bring an act committed by a person within the purview of Section 509 IPC, the act must have been committed with the intention to insult the modesty of any woman or to intrude upon the privacy of such woman. Thus, intention is the basic ingredient of the offence under Section 509 IPC. Only allegation against the respondents No. 2 to 4 in the complaint as well as charge sheet is that respondents No. 2 to 4 have opened window and a ventilator, overlooking the courtyard of the house of the petitioner at the first floor of his property. There is no allegation whatsoever that the window and the ventilator were opened with the intention to insult the modesty of woman folk of the petitioner's family or to intrude upon their privacy. If a person opens a window or ventilator in his FIR No. 575/2015 PS Saket Page- 11 of 16 property to ensure light and ventilation, it cannot be said to be an act intending to violate the privacy of woman folk of the neighbour or to insult their modesty. There is no allegation that aforesaid window/ventilator were used by anyone for any oblique purpose. Therefore, in my considered view, the learned M.M. as well as the revisional court has rightly concluded that the essential ingredient of offence under Section 509 IPC i.e. intention to insult the modesty of woman is lacking in this case. Thus, the order of learned M.M. discharging respondents No. 2 to 4 at the stage of serving of notice under Section 251 CrPC and the dismissal of revision petition against said order vide impugned order dated 29th May, 2009 cannot be faulted."
21. It has been held in judgment titled as Rai Sandeep Vs. State (NCT of Delhi) Crl. Appeal No. 2486/2009 decided on 07.08.2012 that "in our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the FIR No. 575/2015 PS Saket Page- 12 of 16 statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well FIR No. 575/2015 PS Saket Page- 13 of 16 as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
Further, it has been held in judgment titled as Raja & Ors Vs. State of Karnataka, Crl. Appeal No. 1767/2011 decided on 04.10.2016 that "This Court in "Raju", while reiterating that the evidence of the prosecutrix in case of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and FIR No. 575/2015 PS Saket Page- 14 of 16 mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Section 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape of non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
22. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the FIR No. 575/2015 PS Saket Page- 15 of 16 prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
23. In view of the above discussion, the prosecution has miserably failed to prove the guilt of the accused, the benefit of which accrues in his favour. He is accordingly acquitted for the offence under section 509 IPC.
Announced in the open
Court on 15.11.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 16 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
FIR No. 575/2015 PS Saket Page- 16 of 16