Delhi District Court
State vs Gajender & Anr. on 7 June, 2018
STATE V. GAJENDER & ANR.
IN THE COURT OF Ms. MAYURI SINGH: METROPOLITAN
MAGISTRATE:MAHILA COURT01: SOUTH DISTRICT:
SAKET COURT: NEW DELHI
State versus GAJENDER & ANR.
FIR No.134/12
PS Vasant Vihar
U/s323/354 IPC
CNR No.DLST020001662012
J U D G M E N T
1 Serial No. of the case : 2032895/16
2 Date of commission : 28.04.2012
3 Date of institution of the case : 15.09.2012
4 Name of complainant : Ms. A (Name withheld as offence
under Section 509 IPC)
5 Name of accused persons : 1. Gajender Singh,
S/o Sh. Bhagwan Singh,
R/o H. No.4, Plot No.178, Ward
No.2, Mehrauli, New Delhi.
(Proceedings abated on 26.05.2018 due
to death)
2. Sanjay S/o Sh. Rajpal Singh,
R/o H. No. E81, Sector1,
Dwarka, New Delhi.
6 Offence charged of : U/s 509 IPC
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 31.05.2018
9 Final order : Acquitted
10 Date of judgment : 07.06.2018
FIR No.134/12 Page No.1
STATE V. GAJENDER & ANR.
FACTS AS ALLEGED BY THE PROSECUTION:
1. Brief facts as per complaint are that on 24.08.2012 when complainant was waiting at Bus Stand, accused Sanjay approached her with a letter on which the name Akash and telephone no. 995*****09 were mentioned and he stated that the letter had been given on behalf of another man who had given accused Sanjay 10 Rupees to deliver the same. The letter was returned to Accused Sanjay and he was asked to leave and during the arguments with him, coaccused Gajender came there and while putting hand on the shoulder of the complainant, asked her the reason for the arguments. He was abusing, threatening and used obscene language against the Complainant and her friend. He informed them that Sanjay was his friend. Gajender slapped the complainant on her left cheek and used filthy words like prostitute against her. Matter was reported to the police.
2. An FIR was registered and investigation was taken up.
COGNIZANCE:
3. Cognizance of the offences was taken and accused were summoned.
CHARGE:
4. Charge was framed against accused Gajender for offence u/s 354/509/303/506 (I) IPC. Charge was framed against coaccused Sanjay FIR No.134/12 Page No.2 STATE V. GAJENDER & ANR.
for offence under Section 509 IPC. During trial, accused Gajender expired and proceedings qua him stood abated. Trial proceeded against accused Sanjay and the offence in question is under Section 509 IPC only.
PROSECUTION EVIDENCE:
5. Prosecution examined five witnesses to prove its case.
a) PW1 S.C. Deepak deposed regarding visit to the spot, apprehension and arrest of the accused vide Ex. PW1/A, his personal search vide Ex. PW1/B, recording of the statement of the complainant and registration of FIR, medical examination of accused Gajender, arrest of Accused Sanjay on 02.05.2012 and recording of his statement by the IO.
b) PW2, SI Subash Chand deposed regarding registration of FIR Ex. PW2/A in this case.
c) PW3, is Complainant who deposed regarding the incident dated 28.04.2012 and deposed in support of her complaint.
d) PW4, is the friend of the complainant who also deposed regarding the incident of 28.04.2012 and the role of accused persons in it.
e) PW5 ASI Shiv Kumar is the IO of the case who deposed regarding the receipt of DD no. 38 Ex. PW5/A and visit to the spot with PW1. He deposed further regarding having met the complainant and her friend and the reporting of the incident of misbehaviour and eve FIR No.134/12 Page No.3 STATE V. GAJENDER & ANR.
teasing with them by both of the accused. One of the offenders was reported to have fled away from the spot. Accused Gajender was arrested vide Ex. PW1/8 and personally search vide Ex. PW1/B. Prior to it, the written complaint Ex. PW3/A of the complainant was taken and FIR was registered and site plan Ex. PW5/6 was prepared. On interrogation of accused Gajender regarding co accused, he disclosed that his name was Sanjay and mobile no. was 9958 ******09. The CDR of that mobile number was collected and it was learnt that this mobile number was being used by accused Sanjay and that he was working as office Boy in Brain Fresh Coaching Centre at Munrika. On 02.05.2012, PW5 along with PW4 visited the said coaching centre and found a person sitting there and on dialling the abovementioned mobile number, the mobile phone in possession of accused Sanjay rang up. He was arrested vide Ex. PW1/C. In the meantime, PW3 and 4 also came there and identified accused Sanjay as the person who had handed over the letter in question. Sanjay was personally searched vide Ex. PW1/D and his disclosure was recorded Ex. PW1/E. PW5 recorded supplementary statement of PW1, 3 and 4. After completion of investigation, he filed chargesheet in the court. PW5 identified both of the accused in the court.
STATEMENT OF ACCUSED PERSON U/S 313 CR.P.C.
6. All the incriminating evidence was put to the accused persons on 22.02.2018 and they denied the same and chose to lead defence FIR No.134/12 Page No.4 STATE V. GAJENDER & ANR.
evidence. In the meantime, accused Gajender expired.
DEFENCE EVIDENCE:
7. Two witnesses were examined in defence by accused Sanjay.
(a) DW1 is Mother of accused Sanjay who deposed that on 28.04.2012 she along with his son and daughter in law had been to temple at 5 :00 pm and thereafter, at 8:30 pm all of them visited a restaurant for dinner and from there, they reached home at about 1:30 pm.
(b) DW2, deposed that on 28.04.2012 , she along with accused Sanjay and DW1 had been to temple at about 5:30 pm and thereafter they had been to the houses of sisters of accused Sanjay in Palam. Thereafter, they had taken dinner in a restaurant and after dinner they reached home at about 10:30 pm. Both of them were cross examined at length by Ld. APP.
FINAL AGRUMENTS:
8. Final arguments were heard and record perused.
LEGAL PROVISIONS TO BE SEEN:
9. Accused has been charged u/s 509 IPC.FIR No.134/12 Page No.5
I. In order to establish charge u/s 509 IPC, it must be proved by the prosecution that the accused uttered any word to a woman intending that it may be heard or seen by that woman and he did so with the intention to insult the modesty of that woman.
ANALYSIS OF SUBMISSIONS, APPRECITION OF EVIDENCE & REASONS FOR DECISION:
10. Accused Sanjay has been charged for offence 509 IPC only. It is alleged against him that he had handed over a piece of paper to the complainant over which the name Akash and one mobile number was mentioned. Now the question is, does this occurrence in itself satisfies the ingredients of Section 509 IPC. The answer is a clear no. According to the complainant and her friend, it was reported by the accused that he was handing over the piece of paper on behalf of a stranger for a consideration of Rs.10/ and it was also told by the accused to them that he was in need of money, thereby indicating the reason for obliging the stranger. According the complainant and her friend, he had also left the spot immediately on being reprimanded by them. He did not utter any word, made any sound or gesture or exhibited any object to the complainant or her friend which could insult the modesty of those women or intruded upon their privacy. It is further seen that even the alleged handing over of any slip of paper to the complainant is also not proved on record beyond reasonable doubt. There is nothing to suggest that FIR No.134/12 Page No.6 STATE V. GAJENDER & ANR.
accused Sanjay had any nexus with the coaccused. According to the complaint Ex.PW3/A, the slip was handed back to accused Sanjay. There is nothing to suggest that before handing back the slip, the mobile number as mentioned on the slip was noted down either by the complainant or her friend. From the complaint Ex.PW3/A, it appears that the slip of paper was immediately handed back to the accused and in such a situation, it is strange as to how PW3 or PW4 could remember the ten digits mobile number as written on the slip, till the matter was reported to the police. Further, during her cross examination PW3 deposed contrary to her complaint and stated that "the accused Sanjay did not hand over the letter either to me or Avantika, he kept the letter aside..". It is seen that no such slip of paper or letter was recovered during investigation.
11. There was several other discrepancies as well which shatter the very story of the prosecution. PW1 deposed that after meeting Sanjay, IO has arrested him at instance of some stranger and IO had asked accused Sanjay to switch on his mobile (as the same was found switched off) and the IO had called up on the number provided in the complaint. However, according to IO/PW5, when the visited the work place of accused Sanjay, one person was found sitting there and when he had rang on the number in question, the mobile phone in possession of that person had rung up. Not a single document has been placed or proved on record by the IO to suggest that the mobile phone in question belongs to the accused. As discussed above, the very disclosure of the mobile phone to the IO by the complainant on the basis of her memory FIR No.134/12 Page No.7 STATE V. GAJENDER & ANR.
or any other means whatsoever, is shrouded in doubt. It is further seen that while according to PW4, she and PW3 had returned to the spot from police station along with police and showed the incident to police, PW3 testified during her cross examination that "Awantika returned to the spot with the police officials within ten minutes. I did not visit the spot of incident with the police". Hence, a reasonable doubt is cast even on the sequence of events as narrated by PW3 and PW4. As far as PW4 is concerned, according to her the letter/slip was handed over to PW3 and she did not state anything to suggest that the letter had been read out by her and if so, when. Neither the letter in question was recovered nor the same was sent to FSL to find out the author of the same. The contents of the letter were not obscene or such that it could offend or insult the modesty of any women or intruded upon her privacy. It was no love letter, as described by PW1 in his cross examination. During his cross examination, PW1 also stated that "I cannot tell whether the mobile number which was provided by the complainant purporting to be belonging to the accused, was verified by the IO or not.", thereby suggesting that mobile number was provided to IO by the Complainant, but IO has a different story to tell, which is not backed by the testimonies of PW3 and PW4 as well. It is amusing to note that while in the complaint, the mobile number in question finds mentioned and PW1 stated that this mobile number was informed by the complainant to the IO in her complaint, PW5/IO in his examination in chief deposed that "I interrogated the accused Gajender regarding other accused who told that the name of the said accused is Sanjay and his mobile number was FIR No.134/12 Page No.8 STATE V. GAJENDER & ANR.
9958631409". Such version as given out by the IO is contrary to the prosecution case and the complaint Ex. PW3/A. Neither in the complaint nor in the testimonies of the PW3 and PW4, there is anything to suggest that the mobile phone was disclosed to them by IO. Though PW3 deposed that accused Sanjay approached her in a drunken condition, there is no medical evidence in support of such allegations and PW3 did not even state as to on what basis it was inferred by her that the accused was drunk. Further, in the complaint Ex.PW3/A, it is not mentioned that Accused Sanjay was drunk and there is clearly improvement in the testimony of PW3, which brings the testimony of the complainant under scanner of doubt. There is no allegations against accused Sanjay that he stated anything objectionable to either PW3 or PW4 and rather their testimonies reflect that despite being shouted at, he did not react and testimony of PW3 also reflects that he apologized and went away and disappeared in the crowd. Hence, even if the allegations made against him is believed to be true for the sake of arguments, the alleged conduct cannot be considered to be one made with an intention to insult the modesty of complainant. Further, in view of the discussion aforesaid, the very allegations of handing over of any letter with name Akash and one phone number mentioned over it, is not proved on record. Accused Sanjay was not even arrested at the spot. It is strange that IO did not choose to get conducted test identification of accused Sanjay in the present case, despite the fact that he was a stranger to the Complainant and her friend and had stayed at the spot only momentarily. According to IO, coaccused had revealed his name and number of coaccused Sanjay and in such a situation, it was FIR No.134/12 Page No.9 STATE V. GAJENDER & ANR.
imperative on the IO to get conducted Test identification parade of accused Sanjay from both of eye witnesses. No explanation at all has been given for the same by the IO. It is noteworthy to mention that accused Sanjay was arrested on 2.5.2012, i.e. after a gap of about three days. Prosecution witnesses are also inconsistent regarding identification of accused Sanjay during investigation. While according to IO, both PW3 and PW4 had identified the accused in police station on 2.5.2012, none of these witnesses stated anything in this regard in their examinationinchief. During her crossexamination though PW3 deposed that once she had been to police station for identification of accused Sanjay, she did not disclose the date and she did not even state that PW4 had accompanied her to Police station or was present at the time of identification of accused Sanjay in police station. In her cross examination, PW4 also stated that she had been to the police station for identification of accused after the date of incident, but she did not specify the date an even she did not depose regarding presence of PW3 with her in PS on that day.
12. As far as the defence evidence led by accused Sanjay is concerned, there are seen to be material discrepancies in the same. Both of the defence witnesses are inconsistent regarding the sequence of their visits. While according to DW1 in her examinationinchief, at first temple was visited and then they (accused Sanjay, his wife and herself) had been to restaurant and then home. However, DW2 testified that they had been to temple, then to the houses of her sistersinlaw and then to restaurant and then to home. Though DW1 deposed in her cross FIR No.134/12 Page No.10 STATE V. GAJENDER & ANR.
examination that they had been to market as well, DW2 did not depose anything in this regard. Defence witnesses are none other than wife and mother of accused Sanjay, who tried to establish that during the time of the alleged occurrence, accused Sanjay was with them. They come up as interested witness, whose testimonies were shattered during cross examination by Ld APP. It is to be seen that during her cross examination by Ld APP on the same day, DW1 deposed in contrast to her very examinationinchief that they had not had dinner in any restaurant on that day but rather they had dinner at their home. On the other hand, DW not only testified that they had dinner in the restaurant but when asked about what was eaten by them during cross examination by Ld APP, she also gave out names of food items eaten by each one of them on that day. It is further amusing to note that when DW1 was asked during her crossexamination about the present case , she showed ignorance (stating that though she had idea regarding criminal case against his son but she remember about the same exactly) but despite it, she chose to appear in the Court as defence witness and deposed regarding the sequence of events on 28.4.2012 from 5:00 p.m. to 10:30 p.m., despite the fact that she herself admitted that she did not at all remember the occurrences of 27.4.2012 and 29.4.2012, i.e. the prior and subsequent dates. Though she tried hard to make her version believable by adding that she remembered the sequence of events dated 28.4.2012 as it was day of barsi of her fatherinlaw, but no document in support of such a fact is brought and proved on record. Considering the material inconsistencies in the testimonies of these defence witnesses, they are not at all reliable. However, the case of the FIR No.134/12 Page No.11 STATE V. GAJENDER & ANR.
prosecution has to stand on its legs and cannot derive any benefit whatsoever from any weakness in the defence taken up by accused.
13. In view of the foregoing reasons, I hold that the prosecution has failed to miserably prove the charge against the accused Sanjay, beyond reasonable doubt. Hence, for the foregoing reasons, accused Sanjay, is acquitted for offence u/s 509 IPC.
Pronounced in open court (MAYURI SINGH)
On 7th June, 2018 M.M./Mahila Court01/South District
New Delhi/07.06.2018
Digitally
signed by
MAYURI
MAYURI SINGH
SINGH Date:
2018.06.08
12:20:31
+0530
FIR No.134/12 Page No.12