Delhi District Court
State vs . Vikas Kumar @ Bholu on 20 October, 2018
IN THE COURT OF SH. DEEPAK KUMAR-II, MM06
DWARKA COURTS, NEW DELHI
State vs. Vikas Kumar @ Bholu
FIR No. 455/16
PS: Dwarka North
U/s 509 IPC
CNR No.DLSW020172682016
No 434459/16
JUDGMENT
Sl. No. of the case : 434459/16
Date of Commission of offence : 07.09.2016
Name of the complainant : Ms. R (name concealed)
Name & address of the accused : Vikas Kumar @ Bholu
S/o Late Sh. Shambu
Nath, R/o D79, Bharat
Vihar, Kakrola, Sector
15, Dwarka, New Delhi.
Offence complained of or proved : Under section 509 IPC
Plea of accused & his examination : Pleaded not guilty
Final order : Acquitted.
Date of such order : 20102018
Brief statements of the reasons for judgment
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 07.09.2016 at about 5:00 PM the accused had uttered abusive and State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 1/12 U/s 509 IPC No 434459/16 indecent words to the complainant and her mother thereby intending that the same would be heard by them and therefore, he committed the offence punishable under section 509 IPC within the jurisdiction of this court. The complaint for the offence was received in the PS on 09.10.2016 and the matter was investigated. During the course of investigation the statement of the complainant was got recorded under section 164CrPC and other steps were taken towards the investigation. After culmination of the investigation the chargesheet in the present matter was filed in the court. Cognizance was taken by the learned predecessor of this court and the accused was summoned. On the appearance of the accused, copy of the chargesheet along with documents annexed with it were supplied to him in compliance of section 207 CrPC. Prima facie charge under section 509 IPC was made out against the accused which was framed by the learned predecessor of this court, to which he pleaded not guilty and claimed trial. Thereafter, matter was listed for recording of prosecution evidence. Prosecution in support of its case has examined six witnesses.
2. PW1/complainant deposed that on 07.09.2016 when she alongwith her mother were sitting in the gali then at about 5:00 Pm accused came and started abusing him in the filthy language; he told her that he is her husband and asked her brother to call him as his jija; when her mother objected he also used filthy language against her and told her "tere do bachche hai aur aise main tere se aur paida kar doonga"; on that day the nephew of accused namely Gopal had spit at the place where State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 2/12 U/s 509 IPC No 434459/16 they were sitting and she brought to the notice of the same fact to the mother of the accused but instead of making him understand she started abusing her; accused had also sent two legal notices demanding Rs. 7,00,000/; her statement recorded by police is Ex.PW1/A; statement recorded under section 164 CrPC is Mark X; accused also stated to her "tum dhanda karti ho, tum dhanda karne walo ki raah dekhne ke liye bahar bethi ho"; accused was correctly identified by the witness. In her cross examination she denied that present FIR has been registered against the accused as counter blast to the legal notice sent to her brother or that the accused had given a written complaint to SHO on 07.09.2016 vide DD No. 63B or that accused was not present at the spot on 07.09.2016 at about 5:00 PM; she made a call on 100 number; around 2025 public persons had gathered at the spot after the incident; police recorded the statement of Janardhan Sharma in her presence; her statement Ex.PW1/A was recorded at the spot on the same day.
3. PW2 Nirmala Gupta had majorly deposed on the lines of PW1; she also deposed that they were attacked and abused by the accused and his family members; which included his wife, sister and his friend Rajan Aggarwal; the witness correctly identified the accused; witness also deposed that accused had abused her daughter "tu meri wife hai or jo tera bhai hai main uska jija lagta hu; himmat hai to maidan main bhej de mere se milney ke liye; tum log dhanda karny wale ho or dhanda kara dety ho" and same has been recorded in separate sheet of paper which is Ex.PW2/A; accused also abused her also by saying "tere State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 3/12 U/s 509 IPC No 434459/16 do bachchey hai do aur main paida karwa du"; accused also threatened her and her children by saying "tumhey marwa dunga or tumhey rehny nahi dunga dekhty jao".
4. In her cross examination she denied that her son Dheeraj had posted some indecent/derogatory remarks against the accused; there were around 1015 persons present at the spot at the time of incident and those persons included her family members also; she denied that the present FIR was registered against accused as a counter blast to the complaint filed by accused against her son.
5. PW3 Vishnu Prasad also deposed majorly on the lines of PW1 and PW2; accused was correctly identified by this witness and he deposed that her wife and daughter were abused by accused Vikas by saying "tumhey do bachchey paida karwa dunga or tum log dhandey wali ho or anny janey walo ka rasta dekh rahi ho" and "tu hamari biwi" and "ki main tumhara jija hu"; her daughter made a call at 100 number; police came and recorded their statements; FIR got registered. In his cross examination he denied that on 21.07.2016 his son Dheeraj has posted some indecent/ derogatory remarks against accused on social media; he also denied that the present case is also a counter blast to the legal notice which was sent by accused to them; there were about 20 persons including his family members present at the spot; he also denied that accused was not present at the spot on 07.09.2016 at about 5:00 PM.
State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 4/12 U/s 509 IPC No 434459/16
6. PW4 Dheeraj majorly deposed on the lines of PW1, PW2 and PW3 and also deposed that accused abused her mother and sister by saying "tere do bachey hai aur main aur tere do karwa dunga"
"tu meri wife hai"; "tu muje jija bola kar, himmat hai to maidan main aaja"
and tum log dhanda karne walo ki rah dekhtey ho"; he made a call on 100 number and police reached at the spot and his statement was recorded. In his cross examination he deposed that he do not know whether he had posted any defamatory/ derogatory remarks against accused Vikas on facebook on 21.07.2016; he received a legal notice dated 17.08.2016 but did not replied to the same; he also denied that the present case is a counter blast against accused Vikas as he sent the legal notice; he also denied that accused was not present at the spot on 07.09.2016 at about 5:00 PM or that accused was present at Dwarka Suzuki Showroom.
7. PW5 Janardhan Sharam deposed that on 07.09.2016 at about 5:30 PM when he reached near the house of Mr. Gupta for taking donation, he saw that 1520 persons had gathered in front of their house and accused Bholu @ Vikas was hurling abusing to Mr. Gupta and family; he deposed that accused stated "tum log dhanda karte ho or ishliye darwaje par khade rehto ho"; witness correctly identified the accused. Ld. APP was permitted to ask leading question to the witness. In his cross examination he deposed that no scuffle/ altercation took place in his presence.
8. PW6 SI Hansraj Swami deposed that on 09.10.2016 he State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 5/12 U/s 509 IPC No 434459/16 was posted at PS Dwarka North as SI and complainant came the PS and he recorded her statement already Ex.PW1/A; he prepared rukka Ex.PW6/A; he handed over the rukka to the DO for registration of FIR; thereafter he went to the spot and met the complainant, her brother Dheeraj and her mother Nirmala and recorded their statements; a bond under section 170 CrPC was given by him to the complainant; on 13.10.2016 he got recorded the statement of the victim under section 164 CrPC; notice served to the accused under section 41 CrPC is Ex.PW6/B; thereafter he prepared the chargesheet and filed the same before the court; accused was correctly identified by this witness. Nothing material came on record during the cross examination of this witness.
9. Accused in his statement recorded under section 294 CrPC on 15.05.2018 admitted the genuineness of FIR No. 455/16, certificate under section 65B of the Indian Evidence Act, statement of the victim recorded under section 164 CrPC dated 13.10.2016 respectively as Ex.P/A/1 to Ex.P/A/3. Thereafter PE was closed and statement of accused under section 313 CrPC was recorded in which he denied all the allegations and stated that he is innocent and has been falsely implicated in the present case. He further submitted that he wants to lead defence evidence. Accordingly accused examined three witnesses in his defence.
10. DW1 Kunwarpal Singh deposed that accused Vikas was not present at the spot and some ladies were fighting and he do not State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 6/12 U/s 509 IPC No 434459/16 remember the date of incident. In his cross examination he stated that he did not made a call at 100 number after seeing the ladies quarreling as no such incident took place in his presence as alleged by him.
11. DW2 Kusum Lata deposed that on 07.09.2016 she came out of her house to give breads to a street dogs; on seeing her Dheeraj Gupta objected to the same and started fighting with her; his mother and sister also came outside and they also started fighting; accused was not present at the time of incident. In her cross examination; she deposed that police reached the spot after some time and she narrated the entire incident to the police; police took her sister in law to the PS and accused reached the spot after about an hour.
12. DW3/ accused Vikas Kumar @ Bholu deposed that on 07.09.2016 from 4:30 PM to 6:00 PM he was present at Dwarka Suzuki showroom to take quotation of a scooty as he was intending to purchase the same; those quotations are Ex.DW3/A and Ex.DW3/B respectively; one day he was surfing the net and he saw Dheeraj had posted some indecent and defamatory matter against him on facebook and the same is Ex.DW3/C (colly); certificate under section 65B of the Indian evidence Act is Ex.DW3/D; he never went to the house of the complainant to request them not to do so; he sent a legal notice to the complainant through his counsel and the same is Mark X; he also gave a written complaint at PS Dwarka North and the same is Ex.DW3/E. State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 7/12 U/s 509 IPC No 434459/16
13. In his cross examination he admitted that there is no mention of time on Ex.DW3/A and Ex.DW3/B; he had not approached any senior officials with regard to his complaint Ex.DW3/E when no FIR was registered by the SHO; he also denied that he uttered abusive and indecent words with the intention to outrage the modesty of complainant and her mother. Thereafter, the Defence evidence was closed and the matter was posted for the addressing of the final arguments.
14. Ld. APP for the State has argued that the case of prosecution stands proved as all the prosecution witnesses have supported the prosecution version. On the other hand Ld. Counsel for accused has also argued that the present case has been foisted upon the accused at the behest of complainant. He further argued that there are contradictions in testimony of PWs and material improvements in the testimony of the complainant.
15. I have heard the final arguments advanced by Ld. APP as well as by Ld. Defence Counsel and have carefully perused the record.
16. Cardinal principle of criminal law is that the accused is presumed to be innocent till he is proven guilty, beyond any reasonable doubt. Burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 8/12 U/s 509 IPC No 434459/16
17. In order to bring home the guilt of the accused for the offence punishable under section 509 IPC, the prosecution is required to prove the following facts that: i. there must be intentional insult to the modesty of a woman; ii. that insult must be caused 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 iii. by intruding upon the privacy of such woman.
18. Now, in order to sustain conviction for the offence punishable under section 509 IPC, prosecution is required to prove that there must be intentional insult to the modesty of a woman and that insult must be caused by intruding upon the privacy of the woman or by doing such other acts which are mentioned in the section.
19. Let us now appreciate the evidence available on record in the light of aforesaid legal provision. In the Oxford English Dictionary, the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." In the case titled as Raju Pandurang Mahale Vs. State of Maharastra and another reported as AIR 2004 Supreme Court 1677, it was held that:
"what constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The ultimate test for ascertaining whether modesty has been State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 9/12 U/s 509 IPC No 434459/16 outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman."
20. Perusal of testimonies of all the prosecution witness shows various contradictory facts of alleged incident and doubt has been created whether such incident had actually happened or not. In the present case in hand, it can be safely said that there are material improvements in the testimonies of PW1 as certain facts had been disclosed by PW1 while recording her deposition in the court which she failed to disclose while giving her complaint which is Ex.PW1/A and during recording of her statement which is Mark X. PW2, PW3 and PW4 had deposed that the complainant/PW1 and PW2 were abused by the accused by using indecent words. It is also presumed that PW2, PW3 and PW4 were within the hearing distance as that of the complainant and they may also have heard the abuses hurled by the accused. However, for the reasons best known to the complainant she concealed the abuses while giving her complaint to the police and at the time of recorded of her statement under section 164 CrPC. The same improvements have put question mark upon the veracity of the case of the complainant.
21. Strangely, the complainant gave her complaint to the police against the conduct of the accused for the first time on 09.10.2016 when she went to the police station and the same is corroborated from the testimony of PW6 SI Hansraj Swami. The complainant has failed to explain as to why no action was taken by her against the accused on the State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 10/12 U/s 509 IPC No 434459/16 date of incident itself i.e. 07.09.2016 or after lapse of reasonable time. This act on part of the complainant only gives credence to the defence taken by the accused that the present FIR is a counter blast to the legal notice dated 17.08.2016 Mark X which was sent by the accused to the PW4 i.e. the brother of complainant. For the aforesaid reason also the false implication of the accused by the complainant also cannot be ruled out.
22. Interestingly there has been a delay of approximately one month in registration of FIR. More so, no site plan was prepared by the IO during the course of investigation. Again no explanation has come on record as to why the site plan was not prepared.
23. Moreover, while recording of defence evidence accused has filed on record the original quotations i.e. Ex.DW3/A and Ex.DW3/B respectively which proves that on the date of incident that accused was in showroom of Dwarka Suzuki and accordingly has succeeded in creating reasonable doubt in his favour.
24. Apparently, there are material improvements in the testimony of the complainant and contradictions between the testimonies of the PWs. In view of the discrepancies in the evidence of the complainant and PWs, their testimonies are not beyond the pale of doubt. The contradictions and improvements appearing in the testimonies of State vs. Vikas Kumar @ Bholu FIR No. 455/16 PS: Dwarka North page no. 11/12 U/s 509 IPC No 434459/16 prosecution witnesses have gone to the root and have proved fatal for the prosecution.
25. In the case of Jag Narain Prasad vs State of Bihar, reported as 1998 (2) CC Cases 45 SC, the Hon'ble Apex Court held that conviction cannot be based on the testimony of a witness giving improved statement in court. In the present case the complainant has improvised her testimony from her complaint given to the police and the same has not been explained by any of the PWs including PW1 complainant.
26. Considering the foregoing discussion, this Court is of the considered opinion that prosecution has not been able to prove its case beyond reasonable doubt. In my considered opinion, it is not safe to convict the accused on the basis of evidence available on record and he is entitled to benefit of doubt in the present case. Therefore, accused Vikas Kumar @ Bholu is acquitted of the offence punishable under Digitally signed Section 509 IPC.
DEEPAK by DEEPAK
KUMAR
KUMAR Date: 2018.10.20
04:07:18 +0800
Announced in the open court (DEEPAK KUMARII)
on 20th October, 2018 MM06/DWK/SW/ND
State vs. Vikas Kumar @ Bholu
FIR No. 455/16
PS: Dwarka North page no. 12/12
U/s 509 IPC
No 434459/16