Delhi District Court
State vs . Om Prakash Kashyap And Ors. on 10 October, 2022
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
JUDGMENT
FIR No. 166/12 PS : Kotwali U/s 427/506/509/34 Indian Penal Code State vs. Om Prakash Kashyap and Ors.
Date of Institution of case: 03.01.2013
Date when Judgment reserved: 03.09.2022
Date on which Judgment pronounced: 10.10.2022
A. Case No. : 294774/16
B. Date of Institution of Case : 03.01.2013
C. Date of Commission of Offence : 09.07.2012
D. Name of the complainant : Baba Mata Gyanmati
E. Name of the Accused persons
& their addresses : 1. Om Prakash Kashyap
S/o Sh. Parmeshwari Kashyap
(since expired)
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 1/40
2. Vijay Laxmi W/o Late Sh.
Om Prakash
3. Rahul s/o Late Sh. Om
Prakash Kashyap,
All R/o H. No. 123, Gali no.3,
Shankar Nagar, Krishna Nagar,
Delhi-51.
F. Offence complained of :U/s 427/506/509/34 IPC
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal
I. Date of such order : 10.10.2022
"Actus non facit reum nisi mens sit rea"
BRIEF FACTS OF THE CASE
1. The case of prosecution in brief is that on 09.07.2012 at about 04.30 pm, at Mandir Monsthal, in front of Prachin Shivalaya Pragan and TRA, accused persons along with co-accused Om Prakash Kashyap (since expired) in furtherance of your common intention uttered FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 2/40 insulting words to the complainant Baba Mata Gyanmati with intention to insult her modesty and criminally intimidated complainant to commit mischief by causing loss or damage to the property of complainant and thereby committing an offence punishable u/sU/s 427/506/509/34 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 08.01.2013 against the accused persons. Cognizance of offence punishable u/s U/s 427/506/509/34 IPC was taken. Upon summoning, the accused persons appeared and copies of charge sheet were supplied to the accused persons in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). It is pertinent here to mention that during the proceedings, it has been reported that the accused Om Prakash Kashyap was expired on 20.07.2013 and after due verification of factum of his death by Sub- Registrar concerned, the proceedings qua accused Om Prakash Kashyap was abated by order dated 07.01.2016 of Ld. Predecessor of the court. Thereafter, charge for offence punishable u/s U/s 427/506/509/34 IPC was framed against the accused Rahul and accused Vijay Laxmi on 21.07.2014 to which they pleaded not guilty and opted for trial.
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 3/40
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused persons. The prosecution examined 08(eight) witnesses in support of its case:
PW-1 Baba Gyanmati is the complainant deposed in his examination- in-chief that on 09.07.2012 at about 3.00 pm, one person namely Omi (Om Prakash) went inside the Mandir along with his wife namely Laxmi and son namely Rahul and started throwing and breaking flower pots lying outside and inside the Mandir. He has correctly identified accused Vijay Laxmi and Rahul. They have broken the flower pots with a hammer. Accused persons started abusing her and said that accused persons Vijay Laxmi and Rahul will put the hammer in her private parts. Accused persons also threatened her. She called the police by making a call at 100. Police officials came there. IO recorded her statement Ex.PW1/A. Police officials took into possession CCTV footage in the form of CD vide seizure memo Ex.PW1/B. He has identified the CD having the mark of Jain Video Vision Ex.P-1.
During cross-examination of the witness by Ld. Counsel for the accused, PW-1 stated that the name of the temple, where the spot in dispute is situated is known as Maun Sthal, New Darya Ganj, New Delhi. She is residing as a Sisya in the said temple. Today, she had not brought the authority letter given in her favor, which was given by FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 4/40 Mauni Baba. She denied that no any Authority Letter was given by Mauni Baba to him. She further denied that Manu Baba was the tenant in the Prachin Shivalaya, Mandir Maun Sthal, in front of the Traffic Circle, Kotwali, Delhi. She had not filed any document related to the above said temple in this case. Gyanmati is her name given to her by her parents at the time of birth. Witness is shown the site plan Mark A. The site mark A is the correct site plan. She admitted that point A in Mark A is the place where the flower pots were kept at the relevant time. She further denied that she had blocked the passage by putting those flower pots on the way. Vol. No passage was blocked. She admitted that other local people including shopkeepers, tenants, residents etc also used the passage, where the flower pots are kept. Again said, the premises is in sealed condition and no one uses the same. She admitted that there is a workshop of Om Prakash at point B in Mark A. Vol. However, it is already in sealed condition. She further denied that he had deliberately put the flower pots, which are bigger in size, to obstruct passage of the accused and other persons. She further denied that no incident as alleged by her against the accused persons had happened on the relevant day, time and place. She further denied that she made a false complaint to take revenge against the accused persons. She can not say the exact distance between the tenant shop and the opposite wall of the temple. She admitted that the passage had a FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 5/40 width of about 6 feet and small vehicles can be passed. She admitted that cars could pass through the passage. She further denied that she had not given the CD Ex.P-1 directly to the police staff without any recording. She admitted that the name of her husband is Jai Nath Tiwari. She admitted that her husband was working at Punjab National Bank. She further denied that there was any dispute between the landlord and tenant regarding the temple. She had not given or filed regarding her ownership proof in respect of the temple. Her statement was recorded by the police at the temple. She further denied that her statement was recorded by the police at PS. She further denied that no quarrel had taken place on the said date. She further denied that she had made a false complaint against the accused persons to grab the passage in front of the temple. She further denied that the accused persons are innocent. She further denied that she indulged in abusing the accused persons falsely and she falsely quarreled with them to create pressure upon them and to instigate them to leave the shop in their possession. She further denied that she made false allegations against the accused persons in collusion with some businessmen of Chawri Bazar who wanted to grab the property adjacent to the temple because of its high value and proximity. She further denied that she does not have any right in the temple and she has illegally grabbed the said temple. She further denied that she is deposing falsely.
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 6/40
4. PW-2 Ct. Arvind has deposed in his examination-in-chief that on 17.07.2012 at around 6.00 pm, he along with IO / ASI Raj Singh and W/Ct. Neelam reached Maun Mandir, Shivalya in front of the old kotwali traffic office at Shantivan Chowk near Rajghat, Delhi and found one lady namely Gyanmati i.e. complainant along with Savitri. IO interrogated the complainant regarding the incident and recorded the statement of complainant and Savitri. IO asked about the accused persons but they ran away from the spot. IO prepared a site plan Mark A at the instance of the complainant.
During cross-examination of the witness by Ld. Counsel for the accused, PW-2 stated that he admitted that he had mentioned the fact of the presence of Smt. Savitri in his statement U/s 161 Cr.PC. They proceeded from the PS at about 5.30 pm to reach the spot. He reached the spot by walking alone. The distance between the PS Kotwali and the spot of incident was around 2 to 2½ kilometers. He did not make any departure entry while leaving the PS and returned to PS. He did not intimate the SHO concerned regarding the departure. He does not remember whether he was on emergency duty or regular duty on that day. He does not remember how much time they had spent at the spot of incident and he also does not remember on what time they had reached at PS. The distance between the main road and the temple i.e., spot of incident is between 10 to 15 meters. He cannot say how much time IO FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 7/40 had taken in recording the statement of the complainant. He denied that she is deposing falsely and did not accompany the 10. He further denied that he did not reach at the spot of incident on that day and deposing falsely at the instance of the IO. He further denied that he did not participate in any kind of proceeding regarding the present case on the spot. He does not know whether the place of incident is a commercial area or residential area. No public person was present in the temple. He further denied that he is deposing falsely.
5. PW-3 Smt. Raj Rani has deposed in his examination-in-chief that on PW-3 Raj Rani has deposed that on 09.07.2012 at about 4.30 pm, she heard a noise from outside the Mandir. She came out from the temple and saw accused persons were throwing and breaking flower pots lying outside and inside the temple. Accused Rahul was having a hammer and accused Vijay Laxmi were having a rod. Accused persons threatened the complainant for dire consequences. Baba Gyan Mati also came out from the temple. Accused persons had also abused her and had given "Gandi Gandi Galiya" and also stated that "Rod Dal Denge" to Bab Gyan Mati and also threatened to kill her. He has correctly identified the accused Rahul.
During cross-examination of the witness by Ld. Counsel for the accused, PW-3 stated that he passed out class 10 th. She does not FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 8/40 remember in which year she passed out of class 10 th. She has known Baba Gyaan Mati since 1982. Baba Gyaan Mati did not visit her house. The time of Bhajan Kirtan and Pooja in the aforesaid temple was about at 02:00 p.m. There was no specific day of worship. It happened on any day. There was no specified time period of worship in the temple. She usually reaches the temple on her own. She never received a call from Baba Gyaan Mati to come to the temple. She cannot tell whether the temple was at a distance of about 25 feet from the main road. Vol. She had not measured the distance. Temple was opened for all and anybody could join the Pooja Archana there. She denied that on the day of the incident, she was not participating in the Pooja Archana inside the temple. She never visited the house of the accused persons. She cannot tell the present whereabouts of all the accused persons. It was put to the witness that she had come to give evidence before the Court on the direction or instance of Baba Gyaan Mati, the complainant, to which she answered No. PW-3 stated that she is stating the facts which she had seen on that day. She denied that she is deposing falsely before the Court or that no such incident happened on that day and time. The time of the incident was 04:30 p.m. She does not know the reason for the aforementioned incident. Voluntarily, the witness stated that she came out from the temple after hearing the noise. He along with one another lady came out from the temple after hearing the noise. She further FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 9/40 denied that there was no accused at the spot as stated by him and she had not seen anyone on the spot at the relevant date, time and place. She further denied that no such incident as stated by him had taken place on the relevant date, time and place. She further denied that she is deposing falsely.
6. PW-4 Savitri Devi has deposed in his examination-in-chief that on 09.07.2012, at about 04:30 p.m, she was present inside the Mauni Baba Mandir, Prachin Shivalaya, Daryaganj Kotwali. She was participating in Bhajan Kirtan. Immediately, she heard a noise from outside the temple. She along with Baba Gyaan Mati and 2-3 other persons came out from the temple. She saw that three accused persons namely Rahul, Vijay Laxmi and Om Prakash Kashyap were having hammers in their hands. All the three accused persons were breaking flower pots lying outside the temple. All the three accused persons started abusing Baba Gyaan Mati while saying that "Tu Vaishya Hai Tu Gande Kaam Karti Hai Mandir Mai, Tere Sariya Chada Denge". Om Prakash and Rahul had threatened to kill Baba Gyaan Mati. On 17.07.2012, the IO of this case inquired about her and recorded his statement in this regard. She has correctly identified the accused Rahul.
During cross-examination of the witness by Ld. Counsel for the accused, PW-4 stated that she is 5th class pass. She can read and write FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 10/40 Hindi language smoothly. Her statement was recorded in the temple. Her statement was recorded by the IO on 17.07.2012. She used to go to the temple on her will. Vol. The day and time of visit to the temple was not specified. She denied that she went to the temple on the calling of Baba Ji. Vol. Baba ji had never called her. Baba Ji had never visited her house till today. She further denied that Baba ji used to come to her house. She used to go to the temple at about 02:00 p.m and returned after 06:00 p.m, when Aarti was concluded. She further denied that there was no flower pot lying outside the front gate of the temple. She further denied that there was no flower pot lying on both sides of the temple from the front gate side. She usually comes to the temple on foot. Voluntarily, the witness stated that on various occasions, she used to take the rickshaw when she was not feeling well. She further denied that the fare of rickshaw from her house to the temple was Rs. 30/- at that time. Voluntarily, the witness stated that the fare was Rs. 10/-. The accused persons were residing at gali no. 3, Shankar Nagar. There was no specific time of Kirtan in the temple. Voluntarily, the witness stated that they used to assemble in the temple at about 02:00 p.m and the time of Arti was at 06:00 p.m. She never called Baba Gyaan Mati on phone about giving information for not coming to the temple. She further denied that she is deposing falsely at the instance of Baba Gyaan Mati. She further denied that today, before coming to the Court, she met with FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 11/40 Baba Gyaan Mati or that deposing falsely at her instance. She further denied that all the accused persons were not present at the spot at the alleged time of incident. She further denied that on that day she left the temple at about 02:30 p.m. She further denied that she is deposing falsely.
7. PW-5 W/CT Neelam has deposed in his examination-in-chief that in the year 2012, she was posted at PS : Kotwali as Constable. On 17.07.2012, she joined the investigation of the present case. She alongwith ASI Raj Singh and Ct. Arvind went to the Prachin Shivalaya, Opposite Purani Kotwali. There in the temple one Baba Mata Gyanmati and one more lady, who was present there met us. Baba Mata Gyanmati narrated the incident and showed the place of incident. IO had recorded the statement of Baba Mata Gyanmati in her presence. Baba Gyanmati gave her statement by name against the accused persons but the shop of the accused was closed, which was near to the place of incident. She has correctly identified accused Rahul and Vijay Laxmi. The lady who was with Baba Gyanmati had also given her statement to the IO in her presence. Thereafter, they came back to the police station. Again on 19.07.2012, she again went to the place of the incident. On that day, CCTV footage of the place of incident was handed over to the IO, which was seized vide seizure memo Ex.PW1/B. IO also recorded the statement of one lady who was also present in the temple at that time. FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 12/40 On that day, also accused persons were not found at the shop. Thereafter, they came to the police station. IO recorded her statement. On 28.07.2012, she again joined the investigation. She along with IO went to the shop no.74/76, Traffic Kotwali, Daryaganj, near Lal Quila, in search of the accused but they were not found there. Thereafter, they came back to the police station. In the police station, accused Rahul, Vijay Laxmi and Om Prakash were found. IO made interrogation from them and thereafter arrested the accused vide arrest memo Ex. PW 5/A, Ex. PW5/B and Ex.PW5/C respectively. Accused persons were released on police bail after fulfillment of the bail formalities.
During cross-examination of the witness by Ld. Counsel for the accused, PW-5 stated that one of the lady Savitari Devi was present on the spot and who gave a statement before the IO in her presence. On that day, Raj Rani was also present there. IO recorded the statement of Raj Rani also at the spot. She reached the IO at 6:00 p.m at the spot. She stayed with the IO for about one and half hours. No public person was present at the spot except the lady stated above. She denied that the temple in question is on the main road. Voluntarily, the witness stated that it is slightly inside the street. She does not know the name of the main road therefore she can not say it is known as Nishad Raj Marg. Outside the temple near the footpath of the main road, there are five/six shops on both sides. She had not noticed whether the shops were open FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 13/40 or not when we visited the place of incident. She admitted that in her presence IO had not recorded the statement of passersby. Voluntarily, the witness stated that IO made the inquiry from them. She further denied that she had not visited the place of incident along with IO or that IO had not recorded her statement at the spot. She further denied that she is deposing falsely at the instance of IO. She had not made the departure entry. IO might have made the departure entry, she is not aware about the same. She further denied that IO had not recorded the statement of any witnesses at the spot.
8. PW-6 ASI Sunil Kumar has deposed in his examination-in-chief that on 17.07.2012, he was posted as HC at PS Kotwali. On that day, he was working as a duty officer and his working hours were from 04:00 p.m to 12:00 midnight. At about 05:10 p.m, IO ASI Raj Singh had presented a rukka before him for registration of FIR. After receiving the rukka he had registered the FIR No. 166/2012 PS Kotwali, a copy of which was exhibited as Ex.PW-6/A (OSR). She had brought the original register (OSR). She had made the endorsement on rukka Ex.PW-6/B from point X to X-1 which bears his signature at point A. Thereafter, she had returned the original rukka and copy of FIR to ASI Raj Singh for further investigation. Cross-examination is NIL despite an opportunity being given to the accused.
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 14/40
9. PW-7 SI Raj Singh has deposed in his examination-in-chief that on 17.07.2012, he was posted as ASI at PS Kotwali. On that day, he marked the present complaint and received the complaint made by Baba Mata Gyanmati regarding an insult to her modesty. Thereafter, she prepared the rukka Ex. PW-7/A bearing his signature at point A and he got the present FIR registered and he started investigating the present case. Thereafter, W HC Neelam and Ct. Arvind along with him went to the spot, where they met the complainant who informed us about the incident. She had prepared the site plan at the instance of complainant mark A and bearing his signature at point A. He then recorded the statement of complainant Baba Mata Gyanmati. She also recorded the statement of one lady Savitri who was the eye witness to the incident. They then tried to trace the accused persons in the vicinity but were not found. After that, they came to the PS, he recorded the statement of W HC Neelam and Ct. Arvind. On 19.07.2012, he along with W HC Neelam again went to the spot for investigation, where they again met complainant who provided them the CCTV footage of the date of incident. He then seized the CCTV footage vide seizure memo Ex. PW- 1/B. The supplementary statement of the complainant was recorded on 19.07.2012. They again came back to PS. He then recorded the statement of W HC Neelam. On 28.07.2012, he along with W HC FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 15/40 Neelam and Arvind went to the spot looking for accused persons but were not found. Thereafter, they came back to PS. On the same day, accused persons namey Om Prakash, Smt. Vijay Laxmi and Rahul came to the PS, where he arrested them in presence of W HC Neelam vide arrest memos Ex. PW-7/B, Ex. PW-7/C & Ex.PW-7/D bearing his signature at point A respectively and also obtained the signature of the accused persons on the said documents respectively. Thereafter, he released them on police bail after they had furnished their bail bonds. Thereafter, he was transferred. He handed over the file to MHC(R) and the rest of the investigation was done by a second IO. He has correctly identified accused Rahul.
During cross-examination of the witness by Ld. Counsel for the accused, PW-7 stated that he was permitted to reside in the PS Kotwali, there are no fixed duty hours. He marked the present case on receiving the written complaint through SHO. The said complaint was marked to him on 17.07.2012. She does not remember how he reached the spot for investigation. He started from the PS at 06:00 p.m., and reached the spot in 15 minutes. He denied that he had left the PS alone. Vol. He was accompanied by W HC Neelam and Ct. Arvind. He had met with the complainant on the spot. He does not remember the exact time for how long he stayed at the spot. He does not remember the distance between the footpath and the spot where the alleged incident had taken FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 16/40 place. Q. I put to you that on the entrance passage to the temple there were big flower pots lying at the relevant time on both sides? Ans. Some flower pots were lying there, however I do not remember exactly. He further denied that due to those flower pots, even she had felt any inconvenience in reaching the temple through the passage. He further denied that he did not find the complainant nor any other eye witness when he reached at the spot. He cannot say if the big flower pots were in broken condition or not. He further denied to suggest that she did not prepare the site plan on the spot at the instance of the complainant. He further denied that she had not recorded the statement of the complainant and other witness at the spot but at the PS. He is admitted that the CCTV footage was given by the complainant on 19.07.2012. He further denied the site plan is not correct as there were flower pots on both sides of the passage and showed such pots only one side of the passage in the site plan. He further denied that due to the presence of those flower pots on both sides of the passage, it was not possible even for two persons to pass the passage side by side. He further denied that he had not made the investigation property nor went to the spot to investigate. He further denied that he had tutored the complainant and another witness before recording their statements. The complainant had never given his copy of complaint regarding any such incident if ever prior happened. When he reached the spot, he did not find any Pooja FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 17/40 Archana going on inside the said temple. He further denied he is deposing falsely.
10. PW-8 SI Mukesh Kumar has deposed in his examination-in-chief that he was handed over the investigation of the present case in the month of October 2012. Thereafter, he concluded the investigation. He prepared the charge-sheet and filed the same before the Hon'ble Court.
During cross-examination of the witness by Ld. Counsel for the accused, PW-8 stated that he admitted that he has only prepared the charge-sheet and has not recorded any statement or prepared any memo. He denied that he does not have knowledge about the present case. He denied that that he is deposing falsely
11. The prosecution evidence was closed on 30.04.2019 and the statements of the accused persons were recorded under Section 313 read with section 281 of Cr.P.C on 21.08.2019, wherein they pleaded their innocence and stated to have been falsely implicated. It is further reported that they had a workshop inside the Mandir and the complainant was trying to take the possession of the workshop by putting large pots at their workshop, real dispute between parties was in this regard. The accused persons had opted to lead defence evidence, however vide statement of Ld. Counsel for the accused person wished FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 18/40 otherwise and vide order dated on 07.09.2021 of Ld. Predecessor of the Court, Defence Evidence was closed.
12. Final arguments were heard at length on 03.09.2022. I have heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record. At the time of final arguments it is submitted by Ld. APP for the State that The Ld. APP has submitted that prosecution witnesses have given consistent statements and the statement of the complainant Baba Gyanmati finds corroboration from the testimony of two eye-wtinesses. Therefore, the prosecution has been able to prove its case against accused persons beyond doubt and all the essential ingredients of the offence charged have been proved beyond a reasonable doubt.
13. On the other hand, Ld. Defence counsel for the accused persons has argued that there are material inconsistencies in the deposition of the complainant and other prosecution witnesses. It is further submitted that there are serious improvements in the allegations of the complainant since her initial complaint and it is not established what threat was given and what language was used to insult modesty of the complainant. The counsel for the accused persons further argued that it is a motivated and FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 19/40 false complaint and the prosecution has failed to discharge the onus of proof and so benefit of doubt be given to the accused persons.
POINTS OF DETERMINATION:
14. I have considered the submissions of Ld. APP for the State and of Ld. Defence counsel. I have also gone through the evidence on record very carefully. At this juncture, it is prudent to discuss the penal provisions involved in the case for arriving at just a decision. The penal provisions are reproduced in verbatim:-
Section 425 Mischief defines as under: Whoever with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or an such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits "mischief".
Section 427 IPC Mischief causing damage to the amount of fifty rupees:
Whoever commits mischief and thereby causes loss or damage to the amount fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 503 IPC defines criminal intimidation as Whoever threatens another with any injury to his person, reputation or property, or to the FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 20/40 person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to commit to do any act which that person is legally to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation. A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
506. Punishment for criminal intimidation. Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
Section 506 II IPC: If threat be to cause death or grievous hurt, etc: And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both..
Section 509 IPC defines as Word, Gesture or act intended to insult the modesty of a woman: Whoever, intending toinsult 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 FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 21/40 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. "Actus non facit reum nisi mens sit rea", as per this legal maxim, an act is not guilty unless accompanied by a guilty mind. For sustaining the conviction under charged section, the prosecution has to discharge the burden of proving both the actus reus along with mens rea of the respective sections.
16. Let us discuss some essential ingredients of charged sections against the accused persons in the present matter. With respect to offence u/s 427 IP, the prosecution is required to prove the following parts together:
1) Mens rea: Either intention or knowledge that it is likely to cause wrongful loss or damage to the public or to any person.
2) Actus reus: actual causation of destruction of any property; or any such change in any property; or in a situation as to destroy or diminishes its value or utility or affects it injuriously.
3) Damage or loss caused must be of 50 rupees or upward.
17. To bring home an offence under Section 506 IPC, the prosecution FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 22/40 is to prove the following:
1) threatening a person with any injury
i) to his person, reputation or property,
ii) to the person or reputation of any one in whom that person is interested;
2) the threat must be with intent,
i) to cause alarm to that person,
ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat,
iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
18. I would like to refer here the judgment titled as Romesh Chandra Arora vs The State AIR 1960 SC 154, wherein the Hon'ble Supreme Court has made the following observations:
"6. We are unable to accept this contention as correct. We agree with the High Court that the charge framed against the appellant was not as clear as it might have been. It stated, however, that the offence of criminal intimidation was committed by threatening X and his daughter with injury to their reputation by having the indecent FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 23/40 photographs published; the intent mentioned was to cause alarm to X and his daughter. The real intention, as disclosed by the evidence accepted by the trial Magistrate and the High Court, was to force X to pay "hush money." Section 506 is the penal section which states the punishment for the offence of criminal intimidation; the offence itself is defined in s. 503. Leaving out what is not necessary for our purpose, the section last mentioned is in two parts; the first part refers to the act of threatening another with injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested; the second part refers to the intent with which the threatening is done and it is of two categories : one is intent to cause alarm to the person threatened and the second is to cause that person to do any act which he is not legally bound to do or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat. On the findings arrived at against the appellant, the first part of the section is clearly fulfilled; and as to the intent, it comes more properly under the second category, that is, to cause X to do any act (in other wards, to pay hush money) which he was not legally bound to do, as a means of avoiding the execution of the threat. It is perhaps correct to say that the threat of publication of the photographs must have also caused alarm to X; but the real intention of the appellant appears to have been not so much to cause alarm only as to make X pay "hush money"
to him. It is not unoften that a particular act in some of its aspects comes within the definition of a particular offence in the Indian Penal Code, while in other aspects, or taken as a whole, it comes within FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 24/40 another definition. There are obvious differences between the offence of extortion as defined in s. 383 and the offence of criminal intimidation as defined in s. 503. It is unnecessary to dilate on those differences in the present case. All that we need say is that on the finding of the learned Magistrate, which finding was affirmed by the High Court, the appellant was clearly guilty of the offence of criminal intimidation. We, therefore, hold that the conviction of the appellant under s. 506 is correct. We further agree with the High Court that no prejudice was caused to the appellant by reason of the defect, if any, in the charge as to the intent of the appellant. He was fully aware of the case made by the prosecution and had full opportunity of rebutting the evidence given against him."
19. Furthermore, in the recent judgment titled as Vikram Johar vs The State Of Uttar Pradesh (2019) 14 SCC 207, the Hon'ble Supreme court observed that:
"23. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, a case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down the following in paragraph Nos. 11 and 12:-
11. Xxxx A reading of the definition of criminal intimidation would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 25/40 the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of criminal intimidation. The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
20. For the offence u/s 509 IPC, the prosecution is required to prove the following ingredients:
1) The accused uttered some words, or made some sounds or FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 26/40 gesture or exhibited any object or intruded upon the privacy of a woman;
2) The accused must have intended that the words so uttered or the sound or gesture so made or the object so exhibited should be heard or seen respectively by the woman;
3) The accused thereby intended to insult the modesty of the woman.
21. For the purpose of clarifying further the ingredients of offence u/s 509, it would be apt here to refer to the judgment of Hon'ble High Court of Kerala tilted as Abhijeet J K vs state of kerala 2020 SCC OnLine Ker 703 wherein the Hon'ble Court has reiterated the settled legal positions held by Hon'ble Apex Court as:
"9. Utterance of any word or making of any sound or gesture by a person, intending to insult the modesty of a woman, attracts the offence punishable under Section 509 I.P.C, if such act was made intending that such word or sound shall be heard, or that such gesture shall be seen by such woman.
10. There is a distinction between an act of merely insulting a woman and an act of insulting the modesty of a woman. In order to attract Section 509 I.P.C, merely insulting a woman is not Crl.M.C.No.5130/2019 sufficient. Insult to the modesty of a woman is an essential ingredient of an offence punishable under Section 509 I.P.C. The crux of the offence is the intention FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 27/40 to insult the modesty of a woman.
11. Section 509 I.P.C criminalises a 'word, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act (See Khushboo v. Kanniammal : AIR 2010 SC 3196).
12. The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty (See State of Punjab v. Major Singh : AIR 1967 SC 63). Modesty is a virtue which attaches to a female owing to her sex (See Raju Pandurang Mahale v. State of Maharashtra : AIR 2004 SC 1677).
13. If the word uttered or the gesture made could be perceived as one which is capable of shocking the sense of Crl.M.C.No.5130/2019 decency of a woman, then it can be found that it is an act of insult to the modesty of the woman (See Rupan Deol Bajaj v. K. P. S. Gill : AIR 1996 SC 309)."
COURT OBSERVATION
22. Let me scan the prosecution witnesses in order to refer to the conclusion.
23. For avoiding the repetition of evidence and overburdening of the court records, all points of determination for convicting accused persons FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 28/40 for alleged offences are being analyzed and determined simultaneously. As per section 101 IEA, the onus of proving the points is on the prosecution. It is the cardinal principle of criminal jurisprudence i.e. presumption of innocence, the prosecution has to prove the guilt of the accused beyond reasonable doubt.
24. First and foremost, the question which arose after looking at the case of prosecution is question delayed FIR as the incident in question had allegedly taken place on 09.07.2012 and the date of registration of FIR is 17.07.2012. A perusal of the first complaint i.e. Ex. PW1/A shows that it is dated 09.07.2012 lodged vide DD No. 60B at PS Kotwali, however it has been marked to first IO/ ASI Raj Singh on 17.07.2012 who exhibited endorsement on this complaint as Ex. PW7/A and thereafter, an FIR No. 166/12 was registered on 17.07.2012 at 05:15 PM. Further, the statement of complainant and eyewitness Savitri u/s 161 Cr.P.C were recorded on 17.07.2012. Now, it is not clear whether there is delay on the part of the complainant to lodge her complaint or on the part of the policy agency to proceed with respect to the alleged offence. However, there is a delay of more than 8 days in lodging the FIR. Nothing has been explained on behalf of prosecution regarding such delay. In her examination in chief, PW−1/complainant has stated that she had called the police on 100 number and police had come to spot .
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 29/40 However, no date has been mentioned with this deposition. Therefore, it is not clear that matter was reported on the date of incidence itself. Again PW−7/First IO of the case has clearly stated that 17.07.2012 at about 06:00 pm, after marking of present complaint to him, he prepared rukka and pursuant to which present FIR was lodged. It is only thereafter he along with PW-2 and PW-5 proceeded at the spot for conducting investigation where they met with the complainant for the first time and her grievance was recorded in Case dairy. It is crucial here for the prosecution to explain what was the cause of delayed registration of FIR. Even if it is taken that the complainant had reported her matter to the police on the date of incidence itself and it was the lapse on the part of the police, even then the prosecution was required to explain such inordinate delay in lodging of FIR. Accordingly, non-explanation of the delay is certainly fatal to the case of prosecution and a possibility cannot be ruled out that the version of the complainant is an afterthought story.
25. Next question arose with respect to the relevant time and place where the alleged offence has been committed by the accused persons. Here, the version of the complainant, who is the star witness of the prosecution as the victim herself is crucial and most important to be relied upon. PW-1 in her examination gave the following version of incident which is reproduced in verbatim for analyses:
FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 30/40 "On 09.07.2012 at about 3.00 pm, one person namely Omi (Om Prakash) went inside the Mandir along with his wife namely Laxmi and son namely Rahul(Laxmi and Rahul present in the court today and witness correctly identified)and they started throwing and breaking flower pots lying outside and inside the Mandir. They have broken the flower pots by hammer. They started abusing to me and said that they will put the hammer in my private parts. They also threatened me. Thereafter, I called the police by making call at 100 number..."
26. Therefore, according to the statement of the complainant/PW-1 on oath she reported that the incident allegedly took place at around 03 PM. However, as per her first complaint i.e. Ex. PW1/A and contents of FIR i.e. Ex. PW6/A(OSR) is perused, where it is specifically mentioned that the alleged incident took place at around 04:30 pm to 05:00 pm. At this stage, when the depositions of two eye-witnesses PW-3 and PW-4 are looked into, who also made statements that the alleged offences took place at around 04:30 pm. Similarly, with respect to the place of offence, PW-1 and PW-3 testified that the accused persons were present at the spot and they started throwing and breaking flower pots which were kept lying outside and inside the Temple. In contrast to this, PW-4 another eye-witness deposed that flower pots were lying outside the Temple which were being damaged by the accused persons with a hammer. The first complaint of the PW-1 also stated on the same lines that pots were lying outside the temple which were broken. In the light of the above FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 31/40 discussion, it cannot be said with certainty exactly where the flower pots were lying which were being broken by the accused persons. For the purpose of seeking clarification in this regard, another important document is the site plan which is Mark A. Perusal of the same apprised the court of further lacunas and loopholes in the story of prosecution. It is quite strange that the site plan is not exhibited by any prosecution witnesses. PW-1 whispered not a single word about the site plan in her examination-in-chief, which raises serious doubts in the prosecution case which stated that the site had been made at the instance of the complainant herself. Even IO/SI Raj Singh whose signatures are under this document has not bothered or required it necessary to exhibit this document in his evidence for the best reasons known to the prosecution. During cross-examination of PW-1, Defence has shown this site plan which is Mark A to give suggestions that this site plan is correct and place mentioned as point A is the place where the flower pots were kept at the relevant point of time, which were being admitted by the witness. This site plan reflects that point A is the place where the pots were being broken, however it didn't mention where the pots were originally kept lying before they were being broken, so it is open to speculation whether they were lying at the same place or some other place. Let us take the admission of PW-1 as discussed above to be true that pots were kept at point A only at the relevant time and there itself it were being broken, FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 32/40 then it is beyond comprehension of this court that how these flower pots were lying in the Prangan(courtyard) of the Temple as the prosecution version as there seems to be quite a distance between the gate of Temple and this point A. In the light of above ambiguities with respect to the time and place of alleged offence, the prosecution is not able to prove the relevant time and place of the alleged incident beyond the shadow of doubts.
27. As far as offence of mischief u/s 427 IPC is concerned, the actual damage/loss has to be shown by the prosecution to convict the accused persons. In the present case, PW-1 submitted that there were flower pots lying inside and outside the temple which were being thrown and broken by the accused persons with the use of a hammer. PW-4 Savitri, on eye- witness also deposed on the same lines except the part that she witnessed that accused persons were using a hammer to break flower pots. However, PW-3 Raj Rani testified that accused Rahul was having a hammer in his hand and accused Vijay was having a rod in her hand, the fact of this rod has not appeared in testimony of PW-1 or PW-4. Further, neither of the eye-witnesses deposed specifically that they saw this rod or hammer has actually been used to break the flower pots. Even the complainant has not specified how many pots were kept lying which were allegedly being broken by the accused persons in her evidence, so FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 33/40 this is open to interpretation. Furthermore, no photographs of broken flower pots or damage which is being alleged was taken. As discussed above, investigation itself started after 08 days of the alleged incident, even after that IO has not bothered himself to initiate any proceeding to find out what and how the property in question has been destroyed or damaged and collect materials to substantiate the allegations of the complainant. Also, PW-1 and PW-5 have exhibited one seizure memo of CCTV footage which is Ex.PW1/B, however it has not come on record what footages are inside this CCTV footages and neither these CCTV footage has been used by prosecution nor any certificate as mandated U/s 65 B of the Indian Evidence Act to support this CCTV footage was furnished by the prosecution. Suffice it that if some photographs or CCTV footage had been placed on record, it would have strengthened the case of prosecution and also helped the court to make the picture clear about the case of prosecution. Therefore, the prosecution has not proved how and what damage has been caused to the complainant and there are material contradictions in the testimony of prosecution witnesses with respect to the weapon used for destruction/damage in the present case and benefit to doubt is given to the accused and charge u/s 427 stands not proved.
28. With respect to offence of criminal intimidation and insulting the FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 34/40 modesty of the women punishable u/s 506 and 509 IPC respectively, when prosecution evidence is looked into as a whole, stands not proved as the complainant has merely stated in her first complaint dated 09.07.2012 that she and other ladies at the temple were being abused by the accused persons and they all were being threatened to death with use of hammer by the accused persons. In her statements u/s 161 Cr.P.C recorded on 17.07.2012, an improved version of her allegations surfaced as she stated that a pipe would be inserted in her body from the bottom area. Further, in her examination-in-chief, PW-1 deposed that the accused persons abused her and said that they will put a hammer in her private parts. She further deposed that they threatened her. So, the version of complainant has improved a lot since her initial complaint and allegation made therein wherein she has not alleged anything with respect to insult to her modesty by the accused persons. Further, the complainant has not stated what specific words were being stated or what gesture is being to give her threat. She merely alleged in her statement on oath that she was being threatened by the accused persons. It is settled legal position that merely stating that there was threat to kill is not enough to convict a person for offence u/s 506 IPC. The prosecution is required to place on material to substantiate this allegation that threat was given to the complainant with respect to her person, property or reputation and threat was given with an intention of causing FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 35/40 an alarm to the complainant. Further, it has not been proved that whether any utterance of specific words/sound/gestures/exhibition of object is being done with the intention to insult the modesty of the complainant. While PW-1 stated that the accused persons threatened to put hammer in her private parts, on the other hand PW-3 deposed that accused persons stated "Rod Dal Denge" and PW-4 deposed that the accused persons stated "Tere sariya chada denge" to the complainant. It has surfaced that neither the statement of complainant is in consonance with her initial statements nor with the statements of two eye-wtinesses, who also gave different versions of statements being given by the accused persons. Two eye-witnesses PW-3 and PW-4 gave contradictory versions with respect to what weapons were being held by the accused persons and what words were actually being said to the complainant to insult her modesty.
29. Furthermore, it is important to note here that PW-1 has not attributed specific roles to each of the accused persons as to how they were involved in committing the offences in question. It is vaguely stated that accused persons used abusive language and threatened her. It couldn't be difficult for the complainant to at least narrate the manner in which all the accused persons were involved in the incident in question. The complainant was expected to give some sort of graphic account of the entire incident which should have been incoherent with the FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 36/40 testimonies of eye-witnesses. In such circumstances, allegations seem far too blanket, extremely vaguely made. The allegations themselves remained far too casual and uncertain, only surface like and couldn't delve deep into concrete specificities, which could affix blame in the accused persons unerringly.
30. At this stage, I would like to refer to an observation made in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. (2001) 6 SCC 145, Hon'ble Supreme Court held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 37/40 evidence adduced. The court of facts must ask itself- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer is positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
31. In the present factual matrix, there is a material improvement from the first complaint of the victim/complainant and serious contradictions in the testimony of the complainant and two eye-witnesses which raises serious doubts about the truthfulness of the case of the prosecution.
32. It is a settled law that the primary onus to prove the case is upon the prosecution and the offence against the accused should be proved beyond the pale of reasonable doubt and there should not be any iota of suspicion in the same. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer Guntur reported as VIII(2007) SLT 454(SC). Unless and until, FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 38/40 the prosecution discharges this primary burden of proof, the burden never shifts upon the accused.
33. Regarding the onus of proving the ingredients of an offence, in the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
34. Considering the matter in entirety, I find that there exists contradiction in the evidence of witnesses and further that the evidence deposed by PW-1 who is the informant of this case cannot be relied upon because it is seen that there exists serious alterations and additions in her deposition before the court on oath and her initial complaint given to the police on the basis of which the present FIR has been lodged. There are FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 39/40 serious contradictions, inconsistencies and contradictions in the testimonies of witnesses which shake the very foundation of the prosecution case and demolish it. In summation it is observed that the prosecution has miserably failed to prove the allegations against the accused persons Rahul and Vijay Laxmin beyond reasonable doubt. Hence, considering the facts and circumstances of the case and contradictions pointed out above, the benefit of doubt goes in the favor of accused persons. Thus, the accused persons namely Rahul s/o Late Om Prakash Yadav and Vijay Laxmi w/o Late Om Prakash Yadav are hereby acquitted for the offence under Section 427/506/509/34 of Indian Penal Code.
Bail bonds u/s 437A of Cr.PC are to be furnished which would remain valid for a period of six months.
File be consigned to record room after due compliance.
Digitally signed by MEENAAnnounced in the open court today i.e. 10.10.2022.
CHAUHAN MEENA Date:
CHAUHAN 2022.10.10 17:16:11 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 40 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] FIR No. 166/2012 State Vs. Om Prakash Kashyap & Ors. PS Kotwali 40/40