Delhi District Court
State vs . Sahdev on 22 March, 2023
IN THE COURT OF Ms. VIJAYSHREE RATHORE, METROPOLITAN
MAGISTRATE, SOUTH DISTRICT, SAKET COURTS, DELHI
STATE VS. Sahdev
FIR No. : 847/2015
PS : Hauz Khas
U/s : 509 IPC
JUDGMENT
A. Sl. No. of the Case 2037749/2016
B. Date of Commission of offence 31.07.2015
C. Date of FIR 31.07.2015
D. Date of charge-sheet 10.06.2016
E. Name of the complainant Ms. Sharmishtha Das
F. Name of the accused persons, their Sahdev, S/o Sh. Satya Naryan, R/o H. No. M-5,
parentage and residence Hauz Khas, New Delhi. (Permanent Add:- Vill.
Kheri ki Saroorpuri, Bhagpat, UP
G. Offence complained of or proved 509 IPC
H. Date of framing of charges 28.11.2017
I. Date of commencement of evidence 15.01.2019
J. Plea of the accused Not guilty
K. Date on which judgment is reserved 28.02.2023
L. Final Order Acquitted
M. Date of Judgment 22.03.2023
State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas
CIS No. 2037749/2016
U/s 509 IPC Page no.1 of 15
Brief facts of the present case
1. The case of the prosecution arises out of complaint dated 31.07.2015 of the complainant in which she had stated that she was working as computer operator with Delhi Sounds Store for last 6 months. One persons named Sahdev used to harass her since many days and he also checked her bag while she went for washroom. Which she got to know through audio recording in her mobile phone. When she asked to him, he started abusing her in filthy language. During investigation caused was arrested and was also release on bail. Statement u/s 164 CrPC of victim was recorded. Notice u.s 160/90 CrPC was served on the owner of the situated and CCTV footage of the shop at the time of alleged incident was also obtained. Husband of the complainant also provided with the compact disk of the audio recording. After completing the investigation, charge-sheet was filed against accused. Cognizance of the same was taken.
Framing of charge
2. After compliance of Section 207 Cr.P.C., vide order dated 28.11.2017 charge was framed against accused for the offence u/s 509 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined five witnesses. PW1 is Ms. Sharmistha, PW2 is Dipit Jain, PW3 is SI Naveen State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.2 of 15 Kumar, PW4 is Manik Das and PW5 is ASI Satya Pal.
4. PW-1 Ms. Sharmishta had deposed that in the year 2012 she was working in Delhi Sound Store at Hauz Khas, main market. She had further deposed that she was lone female worker in the said store. She had further deposed that accused Sahdev used to misbehave with her within two month of joining of her job. Due to this, she became uncomfortable and told the entire story to her senior Mr. Dipit Jain but accused refused to mend his ways and was expelled from the job. She had further deposed that after three months accused joined again. Thereafter accused started bothering her again and again and he used to check her bag when she used to go to washroom. She had further deposed that accused also tried to touch her and used to say again and again that he loves her. She had further deposed that there was another one boy namely Golu with whom accused used to talk in abusive language regarding her. She had further deposed that she told accused not to do such kind of acts but he did not pay any heed. She had further deposed that he used to mentally torture her. She had further deposed that she started fearing going to her job. She had further deposed that they both were expelled from the job. She had further deposed that she does not know whether accused is working at the said store or otherwise. She had further deposed that she had given her complaint to the police who had recorded her statement which is Ex.PW1/A bearing her signature at point A. She had further deposed that during the investigation she had given to the IO the CCTV footage showing the incident but police official State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.3 of 15 did not take the same on record and replied that they will collect the same from her employer store. She had further deposed that IO had also taken from her a CD regarding voice recording of the accused, same is not found in the judicial file. She had further deposed that her statement u/s 164 Cr.P.C. was got recorded through Ld. MM in the Court, same is Ex.PW1/B. She had further deposed that site plan was not prepared in her presence or under her instructions. On seeking permission to cross-examine the witness by ld APP, the witness was confronted with complaint Ex.PW1/A that she had given the said complaint on 31.07.2015, the witness answered that she does not remember the date of the complaint. She had further deposed that police official arrested the accused in her presence vide arrest memo Ex.PW1/C.
5. PW2 Dipit Jain had deposed that he had a shop of Musical Instruments at E-13, Hauz Khas, Market, New Delhi. He had further deposed that at the time of incident he was not present in the shop. He had further deposed that he received a call from the accused that the complainant has called the police. He had further deposed that he came back to the shop. He had further deposed that the name of shop is Delhi Sound Store. He had further deposed that on demand by the IO, he handed over the employment certificate of both the complainant and the accused and the recording of CCTV footage which are contained in CDs Ex.PW2/A to Ex.PW2/C alongwith Certificate u/s 65 of IEA which is Ex.PW2/E vide seizure memo Ex.PW2/F. The employment certificates alongwith covering letter dt. 09.08.2015 are Ex.PW2/G (Colly).
State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas
CIS No. 2037749/2016
U/s 509 IPC Page no.4 of 15
6. PW4 Manik Das had deposed that he handed over the CD of voice recording of incident to IO and IO seized the same vide seizure memo PW3/D and his certificate u/s 65B IEA is PW4/A.
7. PW5 ASI Satyapal had deposed that at about 03.30 pm IO SI Naveen received a DD No. 49A regarding misbehaving on 31.07.2015. Thereafter he alongwith IO went to the spot i.e. E30, Hauz Khas where they met complainant Sharmistha and owner of the shop. He had further deposed that thereafter SI Naveen recorded the statement and prepared the rukka on the basis of complaint and the same was handed over to him. He had further deposed that thereafter he went to the PS and after lodging the FIR, he came back to the spot and handed over the copy of FIR and original rukka to IO SI Naveen. He had further deposed that at the instance of complainant, IO arrested accused and released him on furnishing of surety. He had further deposed that Dipit Jain produced 3 CD to the IO and IO seized the same vide seizure memo Ex.PW2/I. He had further deposed that on 02.08.2015 Manik Das produced the CD of voice recording to the IO and IO seized the same vide seizure memo Ex.PW3/D.
8. PW3 SI Naveen Kumar had deposed that on 31.07.2015, he was posted as SI at PS Hauz Khas. He had further deposed that on that day he was on emergency duty from 8 AM to 8 PM. He had further deposed that at about State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.5 of 15 7:30 PM he received the DD no. 49A Ex.PW3/B regarding women molestation. He had further deposed that thereafter he along with Ct Satpal went to the spot i.e. E-13, Hauz Khas Market where he met complainant Sharmistha and owner of the showroom Delhi Sound Store. He had further deposed that the name of owner was Dipit Jain and accused Sahdev was also present there. He had further deposed that he recorded the statement of the complainant and prepared the rukka Ex.PW3/A on the basis of the same and same was handed over to Ct Satyadev for registration of FIR. He had further deposed that after registration of FIR he came back at the spot and handed over copy of FIR and original and rukka to me. He had further deposed that he prepared the site plan Ex.PW3/C bearing his signature at point A at the spot at the instance of the complainant. He had further deposed that he interrogated the accused, however he did not co-operate in the investigation, so they took to the accused to PS and complainant also came at PS and he arrested him vide arrest memo already Ex.PW1/C and he released him on bail when he furnished the surety. He had further deposed that he also recorded the supplementary statement of the complainant. He had further deposed that on 01.08.2015, he got recorded the statement of the victim U/s 164 Cr.PC before the concerned Magistrate. He had further deposed that on 02.08.2015, the husband of the complainant namely Manik produced the one CD containing audio recording of the accused. He had further deposed that he seized the same vide seizure memo Ex.PW3/D and he also obtained the U/s 65 B Certificate of Indian Evidence Act from him and he recorded his statement. He had further deposed that he gave the notice U/s 91 State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.6 of 15 Cr.PC to the owner of the aforesaid showroom regarding CCTV Footage and employment proof of the accused and the complainant. He had further deposed that the owner of the aforesaid room produced the document pertaining to employment of accused and complainant and also gave three CD of CCTV Footage of the showroom at the time of incident. He had further deposed that he seized the same vide seizure memo which is already Ex.PW2/1 bearing his signature at point B. He had further deposed that he recorded the statement of the owner of the showroom. He had further deposed that he also moved the application before the concerned court for obtaining the voice sample of the accused, however accused denied the same so Ld. MM dismissed his application. He had further deposed that he prepared the charge-sheet and filed before the court. He had further deposed that the owner of the showroom handed over the three DVD of the CCTV Footage however inadvertently he earlier stated that he gave him three CD.
Statement of accused
9. The examination of accused u/s 313 r/w 281 Cr.P.C. was recorded in which he stated that he is falsely implicated in the case as he apprehended complainant twice while she was stealing in the shop.
10. Accused examined Golu as DW1 in the case. W1 Golu had deposed that he used to work with Sharmistha and Sahdev at Hauz Khas 113-E, New Delhi. Sharmistha and Sahdev were good friends and used to talk for State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.7 of 15 hours with each other. He had further deposed that Sharmistha and Sahdev had no fight in front of him. He had further deposed that there was no washroom at the shop where they all three he, Sharmistha and Sahdev worked together. He had further deposed that there was cordial relationship between Sharmistha and Sahdev where he has seen them regularly talking to each other. He had further deposed that the date of incident is of 31.07.2015. He had further deposed that police came at the shop and slapped Sahdev 2-3 times and without saying anything took him along with them immediately to police station. He had further deposed that there was no conversation between him and Sahdev regarding Sharmistha. He had further deposed that Sharmistha kept her phone in her cabin where she used to work on her computer as there was no washroom present in the shop.
11. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
12. It is argued by Ld. APP for the State that prosecution had proved its case beyond reasonable doubt. There are sufficient material against the accused that he was harassing the complainant continuously and had also abused her. There is no contradiction in the testimony of any witnesses.
13. It is argued on behalf of accused that shoddy investigation is conducted in the present case. Complainant is saying that she was employed in State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.8 of 15 year 2012 in Delhi Sound Store and had worked only for 6 months there. CCTV footage is placed on record without sound recording. Site plan is also not made at the instance of complainant in the case. It is further argued that phone recording is placed on record without procurement of phone. DVD record is also placed without procurement of DVR. Whole secondary evidence has become unreliable in the case. How can complainant give CCTV as she says it is the property of owner. Phone of the complainant was also not seized by the IO in the present case. In the absence of compliance, these evidences are not reliable. All the proceedings in the case are done at the behest of IO. He got the signatures of complainant on blank papers. Even complainant had admitted in her cross examination that she had not seen or heard her statement ever u/s 161 CrPC. How can the husband of complainant give certificate u/s 65B IEA. It should have been given by the concerned person of the cyber cafe. Complainant also did not give any CDR. Location of accused and complainant could have been taken. Section 509 IPC is not attracted in the present case as intention of accused is not established. No public witness is examined in the case. Owner of sound store opened the store in year 2014. How can complainant work there in 2012. There is no signature of complainant on site plan. DVD was also not sent to FSL by IO her argued that identity of accused is not disputed in the case.
14. Section 509 IPC provides punishment for "words, gesture or act intending to insult the modesty of a woman". The section read as-
State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas
CIS No. 2037749/2016
U/s 509 IPC Page no.9 of 15
Whoever, intending to insult the modesty of any woman, utters any words, 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 three years, and also with fine.
15. The question of what constitutes an insult to female modesty requires no description. It is common knowledge that any words, spoken or song, picture or figure exhibited which suggests lewd thoughts is immoral and insulting to female modesty, unless the woman is a consenting party to it. The fact that the indecent act was done unobserved by all except the woman is, of course, no excuse for the offence because it is intended to punish such very acts. Nor does the fact that there were several women present, some of whom did not mind, matter.
16. It is the case of prosecution that accused Sahdev used to harass complainant since many days and he also checked her bag while she went for washroom. When she asked to him, he started abusing her in filthy language. It is admitted fact in the case that accused and complainant used to work together in Delhi Sound Store and entire dispute arose between them there. There is no dispute regarding the said fact. Bare perusal of the record shows that there are many contradictions and exaggerations in the testimony of complainant. In her examination complainant PW1 Sharmistha stated that she joined Delhi Sound Store in the year 2012. Even in her cross examination her version had remained State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.10 of 15 the same. According to owner of Delhi Sound Store PW2 Dipit Jain he opened the store in 2014. He also admitted in her cross examination that complainant did not work there prior to 10.01.2015. complainant PW1 is the victim in the case. It is quite astonishing that she appeared before the court for recording her evidence in the year 2019 and she could not even recall that she had worked with store in 2015 or near so. In her cross examination she had further stated that she remained with Delhi Sound Store for maximum period upto six months and was forced to leave from the employment by the employer because of the present case. If the complainant was harassed there is no reason why would she be forced to leave the job from the store. The employer must have taken action against accused rather terminating his service.
17. In her cross examination, PW1 complainant Sharmistha had stated that when the said incident was happened in the store, apart from her and accused one more person namely Golu was also present. Golu was examined as defence witness who deposed that Sharmishtha and Sahdev were good friends and used to talk for hours with each other. According to him no fight took place before him. Golu had completely denied any dispute taking place before him in his examination. From his entire version, it is clear that complainant and accused were carrying on friendly relations and they even used to talk for hours. Probably on personal front dispute arouse between the complainant and accused and for the same reason complainant must have implicated the accused falsely in the present case. There is no reason to disbelieve Golu and he also State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.11 of 15 does not appear to be interested witness as well. This is a material inconsistency in the prosecution evidence.
18. In his cross examination PW2 Dipit Jain had stated that no complaint by any other lady was made against accused before or after the incident. He had further stated that even the complainant had never made a complaint to him before the incident. If the accused was continuously harassing the complainant, there is no reason why she never complaint about the same to her employer Dipit Jain. In his cross examination PW4 Manik Das had stated that complainant had told him that accused did harass her sometimes but he had not made any complaint against the said incidents to anyone. In his cross examination he had denied that there were regular talks between the accused and the complainant. However he had admitted that his wife told him that before leaving for village, the accused gave her a red rose on her birthday. He also admitted that he threatened accused when he got to know that the accused talks to his wife. The admission of husband of complainant himself shows that accused and complainant had friendly term with each other and probably for the same reason accused dared to give her red rose on her birthday. Further if the accused was continuously harassing complainant, there is no reason why Manik Das did not file complaint earlier.
19. In the present case, entire prosecution story is relying upon the CCTV footage and audio recording given in CD. Golu who is stated to have State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.12 of 15 been working at the place of incident along with complainant and accused, had denied happening of any such incident. In his cross examination IO SI Naveen admitted that he did not ask about the DVR of the CCTV footage from the owner of the showroom. He also admitted that he did not send the DVD of the CCTV footage to the FSL. He also admitted that there was no audio in the CCTV footage. He also admitted that husband of the complainant provided an audio recording of the incident which was recorded by the complainant in her mobile. He also admitted that mobile of the complainant was not seized. He also admitted that CDR of the complaint was not obtained. In her cross examination PW1 Sharmishta had admitted that she had not given the mobile hand set from which she have stated to have recorded the conversation between her and accused to the police official. She had also admitted that she had not gone to the police with the video recording of the incident. She further admitted that the phone from which she made the recording remained in her exclusive possession. She further stated that the CD containing the voice recording was gotten made by her husband by taking her phone to the cyber cafe and getting it written in a CD. She further stated that she offered the tab/ mobile to the police but they just heard the recording and asked them to get the contents burnt in the form of CD and submitted only the CD. Though IO had not seized the DVR of the CCTV footage but he had procured it in secondary form as DVD along with section 65B IEA certificate of the owner of the premise. Though the DVD of the CCTV footage is placed on record, but it is without any audio recordings. In the absence of any audio recording in the DVD of CCTV footage, it is State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.13 of 15 difficult to identify that accused had intention to outrage the modesty of complainant. On playing the DVD of CCTV footage, no such incident as insulting the modesty of complainant is visible. Further the audio recording of mobile phone given by husband of complainant in the form of CD. The primary evidence is mobile phone was not seized by IO in the case. Further husband of the complainant himself admitted that he got recorded CD from cafe. As there was intervention of third party in burning the CD, the entire reliability of CD has ceased. Thus, the entire evidence of CCTV and mobile phone recorded in form of CD is also not reliable to establish the prosecution case. There appears many contradictions in the testimony of complainant and even in the material collected by IO in investigtaion which had shaked the entire prosecution version.
20. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are no cogent material available on record to suggest that accused had insulted the modesty of complainant by uttering indecent and outrageous words to her. Further there also is no cogent material against accused to show that he used to continuously harass the complainant.
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U/s 509 IPC Page no.14 of 15
Conclusion & Decision
21. In view of material inconsistencies in the prosecution version as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused is acquitted for the offence under section 509 IPC .
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 22.03.2023 MM-06, SOUTH/SAKET DELHI State Vs. Sahdev FIR No. : 847/2015 PS Hauz Khas CIS No. 2037749/2016 U/s 509 IPC Page no.15 of 15