Delhi District Court
State vs . Yogesh Kumar on 18 September, 2019
In The Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate02, (Mahila Court), South East, New Delhi
State Vs. Yogesh Kumar
FIR No: 218/2017
PS: OIA
U/s: 354D/323/506/509 IPC
JUDGMENT
Date of institution : 07.09.2017
CRC no. : 28274/2017
Name of the complainant : As per chargesheet.
Name & address of the accused : Yogesh Kumar
S/o Sh. Dhan Singh
r/o H. No. A415, Transit Camp
Govindpuri, Kalkaji, New Delhi.
Offence Complained of : U/s: 354D/323/506/509 IPC
Offence Charged of : U/s: 354D/323/506/509 IPC
Plea of accused persons : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 31.08.2019
Date of announcing of order : 18.09.2019
BRIEF FACTS:
1. Brief facts of the case as per the prosecution are that the complainant has stated in her complaint dated 11.06.2017 that she was State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 1 of 19 working in a company at a call center. She came to know about the accused as he was residing in the same locality for past 2 to 3 years. However, four to five days prior to aforesaid date, complainant had stopped interacting with the accused and also told the accused not to contact her or follow her. However, accused Yogesh kept calling the complainant continuously and the complainant had blocked his number. However, whenever the complainant went to and came back from her office accused would follow her. The mother of the accused gave a call to the complainant and inquired if she is willing to continue her alliance with the accused for which she refused. On 10.06.2017 around 7 Pm in the evening when the complainant was returning from her office and was walking along with her friend namely pooja to returned back home. At that time accused Yogesh along with his grandmother Sukhbiri and friend Bittu stopped the way of the complainant by standing in the middle of the road. They came towards the complainant and started abusing her in filthy language. Thereafter, they also gave beating to the complainant by fists and blows. At that time grand mother of the accused also abused the complainant. Thereafter, accused along with his friend ran away from the spot on his scooty after abusing and misbehaving with the complainant. Thereafter, complainant along with her mother and uncle reached the police station and file a complaint and also stated that the accused had threatened to kill her and pour acid on her. Complainant had suffered injuries but she did not get her medical examination conducted.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 2 of 19
2. Pursuant to this complaint dated 11.06.2017 against accused, FIR was registered on the same date and the matter was investigated. Chargesheet was filed on 07.09.2017. Court took cognizance of offence and summoned the accused Yogesh Kumar. Charge was framed against accused persons for the offence U/s 354D/323/506/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, matter was listed for prosecution evidence. Thereafter, prosecution evidence was led.
3. In order to prove its case, prosecution examined eight witnesses.
PW1 Complainant/victim deposed that accused Yogesh was known to her and she had talking terms with him for past 23 years of the present incident. Before 45 days of the incident, she stopped to talk with accused as she did not want to continue any talking terms with him. Thereafter, accused started to follow her while she was going to her office and he used to call her on her mobile phone from his own mobile number 9717456809. Her mobile number was 9958677307 upon which she received the aforesaid calls of accused. She had put the aforesaid number of accused in blacklist as she did not want to talk with him. On 10.06.2017, she had received a call from the mother of accused Yogesh who asked her as to whether she wanted to continue relation with accused Yogesh but she told her not to continue the same. Thereafter, on the same day at around 7.00 PM while she was coming from her office situated at B24, Okhla PhaseII alongwith her friend Pooja, accused Yogesh alongwith his grandmother and State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 3 of 19 friend namely Bittoo met them at the distance around 100 metres from her office and after seeing her, accused Yogesh started to abuse her and he had given beatings to her with fist and leg blow. At that time, grandmother of accused namely Sukhbiri also abused her. Accused Yogesh harassed by following her while she used to go and come from her office inspite of her clear disinterest before 45 days of incident that she did not want to talk with him. On the day of incident, accused Yogesh threatened to kill her and to pour acid on her face if she would not continue in relation with him. Upon reaching at her residence, she narrated the whole incident to her parents and her uncle. Upon which, her mother called at 100 number and police officials reached at her residence. She had given her complaint to the police official which was Ex.PW1/A. Thereafter, she alongwith her mother and uncle were taken to the place of incident by the police officials and police officials prepared the site plan at her instance. She had given her statement u/s 164 CrPC Ex.PW1/B. During crossexamination PW1 deposed that accused Yogesh was known to her as she had talking term with him. It was correct that she had love affair with accused Yogesh for past 23 years of the present incident. It was correct that during the period of affair with accused Yogesh, she used to meet with him lonely. She did not remember the day of incident, however, it was 10.06.2017. It was correct that she had possessed her mobile at the time of incident. It was correct that she did not call at 100 number immediately after incident. However, she went to her house and narrated the whole State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 4 of 19 incident to her mother and uncle after which her mother had called at 100 number. At the time of incident, one of her colleague namely Pooja was with her. She did not know her present whereabouts and address as she left her office and she also left her office. It was correct that public persons were present at the spot at the time of incident. She did not make hue and cry at the time of incident and shout for help from the public persons present there. It took about 25 minutes on foot from place of occurrence to her house. Witness denied all the suggestions put to her.
PW2 Smt. Sundari (mother of the complainant) deposed that on the day of incident, she did not remember the exact date but it was in the month of June, 2017 at around 7.30 PM, her daughter came to house in weeping and she asked her about the reason of her weeping. Her daughter told her that accused Yogesh had beaten her near her office at Okhla and throw her bag. At that time, accused Yogesh was with her grandmother Sukhbiri and his friend. Thereafter, accused threatened her daughter by saying that he had beaten her and subsequently shall also give beatings to them. Thereafter, she made a call at 100 number and complained regarding the same. Thereafter, PCR van reached the spot and told them to visit the concerned police station. Thereafter, she alongwith her daughter and relative reached the concerned police station OIA where the statement of her daughter was recorded as a complaint. Thereafter, police officials took them to the place of incident. Accused had beaten her daughter as her daughter did not want to talk with him.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 5 of 19 During cross examination PW2 deposed that it was correct that present incident was not occurred in her presence and it was told to her by her daughter/complainant. When her daughter had narrated about the incident to her, her Devar Dalip Kumar and other children namely Baby, Meenakshi, Sonia were present. Police official had recorded her statement twice and statement of her daughter was also recorded twice. He did not make sign on any document.
PW3 Dalip (Uncle of the complainant) deposed that on 10.06.2017 it was the day of Saturday and on that day his office was off. On that day at about 7:30PM while he was in his house, his daughter/complainant came to house in weeping. He asked her about her weeping, she relied that she was beaten by accused Yogesh Kumar outside of her company where she was working and at that time accused Yogesh was with his one friend and his grandmother. Thereafter his bhabhi Sundari called at 100 number after which police officials reached at his residence and statement of his daughter was recorded as a complaint and took him, his daughter and his bhabhi at PS. Thereafter. Police official took his daughter and his bhabhi to place of incident. He was inquired by the police official and his statement was also recorded.
During cross examination PW3 deposed that he was informed regarding the matter by his daughter. There were several other persons working with the complainant in her office. On the day of incident, State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 6 of 19 complainant returned home alone. He had not visited the place of incident with the police.
PW4 Sukhbiri (grandmother of the accused) deposed that on 10.06.2017, she was present at her house whole day and nothing had happened in his presence. On the next day, he came to know that the complainant filed a false complaint against accused Yogesh as she used to demand money from accused.
Thereafter, Ld. APP for the State sought permission to cross examine the witness as she was resiling from her earlier statement and during crossexamination, she deposed that it was correct that there was friendly relation between the accused and the complainant from 23 years back from the day of incident. It was correct that complainant stopped to talk with accused prior to 56 days of the day of incident. Witness denied all the suggestions put to her.
During cross examination on behalf of accused PW4 deposed that it was correct that complainant had made a false complaint against the accused as she used to take money from the accused and when he stopped to give her money, she got angry and made false complaint. It was correct that all expenses of the complainant borne by the accused.
PW5 Ajay Kumar, Nodal Officer, Bharti Airtel, deposed that he had brought call detail report pertaining to mobile number 9958677307 and 9717456809 for a period from 01.06.2017 to 02.08.2017 along with certificate u/s 65 B of Indian Evidence Act. The call detail report pertaining State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 7 of 19 to mobile numbers 9958677307 for a period from 01.06.2017 to 02.08.2017 was ExPW5/A and call detail report pertaining to mobile numbers 9717456809 for a period from 01.06.2017 to 02.08.2017 was ExPW5/B and certificate u/s 65 B of Indian Evidence Act pertaining to both aforesaid call detail reports were ExPW5/C. Customer application form for mobile number 9958677307 in the name of Sundari Devi was ExPW5/D and customer application form for mobile number 9717456809 in the name of Mustafa Ali was ExPW5/E. During cross examination PW5 deposed that as per call detail report of aforesaid mobile number between 01.06.2017 to 10.06.2017 no incoming or outgoing call and SMS was made from both mobile numbers. There was no chance of alteration in CDR record produced by concerned nodal officer.
PW6 ASI Vir Pal (IO) deposed that on 11.06.2017, the investigation of the present matter was marked to him by SI Kamal Kumar. Thereafter, during investigation, he visited the house of complainant on 11.06.2017. When he reached the house of complainant, he met the complainant and her parents and examined them. Thereafter, at the instance of the complainant, he prepared the site plan vide Ex.PW6/A. On the same day, the statement of the complainant was got recorded u/s 164 CrPC. Thereafter, he also recorded the statement of the witnesses u/s 161 CrPC. On the next day, he alongwith Const. Sanjay visited the house of accused and accused was arrested vide Ex.PW6/B and his personal search was conducted vide Ex.PW6/C. State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 8 of 19 Accused was released on police bail. Thereafter, he recorded the statement of witnesses u/s 161 CrPC. On 15.06.2017, he inquired about the matter from the friend of complainant namely Pooja who refused to join the investigation. On the same day, he also examined accomplice /friend of the accused namely Bittoo and recorded his statement u/s 161 CrPC. Thereafter, chargesheet was prepared and filed before the court.
During cross examination PW6 deposed that statement of the witnesses u/s 161 CrPC was recorded by him in the present matter. It was correct that the complainant had disclosed him regarding her one friend namely Pooja. He had inquired about the matter from aforesaid Pooja but she refused to join investigation or state anything in the present matter. He had mentioned regarding the aforesaid fact in his case diary and he had not mentioned the same in his chargesheet. He had not served any notice to aforesaid Pooja to join investigation. Complainant had refused to get herself medically examined and the same, she had stated in her complaint. Complainant did not disclose him if she had received any injury. The place of incident was a main road between A and B block, Okhla PhaseII. There were jhuggies on the one side of the road and the other side was the company. There were no CCTV cameras installed in the area. He had checked the CDR placed on record and he had mentioned that there were conversations and exchange of calls and messages between the phone of complainant and accused. Witness denied all the suggestions put to him.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 9 of 19 PW7 SI Kamal Kumar (IO) deposed that on 10.06.2017, ASI Ramesh Chand alongwith complainant visited PS and said that the complaint pertains to the area of PS OIA. Thereafter, complainant narrated the incident to him and he recorded her statement which was Ex.PW1/A and thereafter, endorsed the same vide Ex.PW7/A and got the FIR registered after preparing tehreer. Thereafter, the investigation of present matter was marked to ASI Vir Pal.
During cross examination PW7 deposed that he had not recorded any statement of ASI Ramesh Chand but only his arrival was recorded at PS. He had recorded the statement of the complainant at her instance.
PW8 Ct. Sanjay Kumar deposed that on 12.06.2017, he joined investigation in the present matter with the IO. At that time, they visited the house of accused Yogesh Kumar that was house No.A415, Transit Camp, Govindpuri, Kalkaji, Delhi. When they reached the house of accused, accused was not found present there and only his grandmother and mother were present there. Thereafter, they were informed by the grandmother of accused that he shall join investigation by visiting PS. Thereafter, IO recorded the statement of grandmother of accused in this regard. Thereafter, he returned back to PS with the IO. Thereafter, accused Yogesh Kumar with his relatives was already found present at PS. Thereafter, IO interrogated the accused and arrested him vide memo Ex.PW6/B and his personal search was conducted vide memo Ex.PW6/C. Thereafter, accused was released on bail by the IO. IO recorded his statement.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 10 of 19 During cross examination PW8 deposed that he did not remember the exact time of reaching the house of accused however, it was almost afternoon. When they reached back to PS, accused was already found present at PS. Apart from the aforesaid day, he had not joined the investigation with the IO. Accused was arrested around 4.00 PM on 12.06.2017.
Statement of the accused was recorded under Sec. 294 Cr.P.C. and copy of FIR was Ex. A and rukka was Ex. B.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused did not examine any witness in his defence.
6. Final arguments were advanced.
7. Ld. APP for the State has argued that in the present matter the guilt of the accused is proved beyond reasonable doubt as all the witnesses have deposed against the accused and there is complete corroboration and therefore, accused is liable to be convicted.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 11 of 19
8. On the other hand, Ld. Counsel for accused has argued that in the present matter, accused have been falsely implicated and there is no incriminating evidence against the accused. Ld. Counsel has argued that in the present matter, the accused persons have been prosecuted on the allegations of the complainant who was known to the accused for 23 years prior to the date of incident as they were in relationship however, thereafter, complainant stopped interacting with the accused due to which the accused started following her and on 10.06.2017 stopped the complainant while she was returning from office and gave severe beatings to her, abused her and threatened to throw acid on her. It has been argued that the accused has been charged for the offence u/s 354D/323/506/509 IPC. Further, upon the aforesaid allegations, the present FIR has been registered since the accused stopped financially assisting the complainant. It is further argued that in the present matter on the alleged date of incident that is 10.06.2017 complainant was accompanied with her friend namely Pooja when the aforesaid incident occurred. However, the aforesaid eye witness and friend of the complainant was not cited as a witness by the prosecution and never appeared before the court. It is further argued that in the present matter, despite the fact that the complainant was in possession of her mobile phone, the complainant did not make a call at 100 number and infact, went back home, narrated the alleged incident to her family and thereafter, filed her complaint. It is further argued that the aforesaid behaviour of the complainant is not expected when she was given severe beatings on a public way by the accused in the presence of State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 12 of 19 several public persons. Further the complainant has admitted during her crossexamination that at the time of incident, she did not raise alarm or shouted for any help but went back home which is again not expected from a prudent person who has been assaulted and abused in public and further had been threatened. It is also argued that the grandmother of the accused who had been cited as a witness had already turned hostile and further the alleged friend of the accused namely Bittoo was never examined or cited as a witness. It is also argued that PW2 being the mother of the complainant and PW3 being the uncle of the complainant are only hearsay witnesses who were not present at the time of the alleged incident. It is also argued that the allegations pertaining to pouring of acid on the complainant are also subsequently added which can be ascertain after reading the complaint of the complainant Ex.PW1/A and are an after thought. It is further argued that despite the fact that the place of incident was a public place, no public person has been cited as a witness. Further, though the complainant has alleged that she was given severe beatings by the accused by fist and leg blows, medical examination of the complainant was not conducted since it was the complainant who herself refused for any medical examination. It is also argued that PW5 who was examined as an official from Airtel has deposed during his crossexamination that there were no calls or messages exchanged between the mobile number of the complainant and the accused Yogesh Kumar between 01.06.2017 to 10.06.2017 and further the name of the customer on the Customer Application Form of the alleged mobile number State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 13 of 19 9717456809 is of one Mustafa Ali and not of accused Yogesh Kumar. It is further argued that there was a delay of about six hours in the registration of FIR by the complainant and such delay is fatel as the offence charged against the accused is of serious nature and no plausible reason for the delay has been explained by the complainant or by the IO and therefore, false implication of the accused cannot be ruled out. It is further argued that the accused being innocent had himself joined the investigation of the present matter and therefore, the accused the liable to be acquitted. The complaint had been registered at the instance of complainant without verifying true facts by the IO. It is further argued that the complaint filed by the complainant is bereft of details and the complainant has failed to specify any incident of stalking by accused on previous occasions and has not stated any date, time or place of any such incident of stalking prior to the date of present complaint. There was nothing to lend support to the story of complainant by any independent witness and the allegations made by the complainant are only figment of imagination. He has also argued that apart from the complainant, PW2 and PW3 are only hearsay witnesses and had not seen the alleged incident of molestation of the complainant by the accused on the alleged date or on the previous date. It is also argued that all the witnesses examined by the prosecution are interested witnesses being the family members of the complainant. It is further argued that the accused is innocent and he is liable to be acquitted.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 14 of 19
Court Observations:
9. Accused has been charged of having committed offence of stalking the complainant on 10.06.2017 and on previous occasions and also 45 days prior to the aforesaid date. It has been alleged that the accused had committed stalking of the complainant by following her and the same is alleged by the complainant in her complaint Ex.PW1/A. Further, the accused has been charged for the offence u/s 354D/323/506/509 IPC. It is also alleged that on the date of incident, accused uttered indecent words to the complainant, gave beatings to her and threatened the complainant with dire consequences and also threatened to pour acid on her. To determine if an offence of stalking is made out on these allegations, it is necessary to peruse Section 354 D IPC, which reads as under: "354D (1) Any man who
(i) follows a woman and contact, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman: or
(ii) monitors the use by a woman of the interest, email or any other form of electronic communication, commits the office of stalking...."
For the purpose of establishing an offence U/s 354 D IPC, following ingredients need to be proved:
(i) Accused followed or contacted the complainant for fostering personal interaction.
(ii) Such following or contact is repeated.
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 15 of 19
(iii) Complainant clearly expressed/ indicate her disinterest.
10. Complainant has levelled allegations in her complaint Ex.PW 1/A and admitted to have sour relationship with the accused and was known to the accused for few years prior to the date of incident and since the complainant had stopped interacting with the accused, he started following her and on the date of incident, misbehaved with her by abusing her in filthy language and gave beatings to her and extended threats. Thereafter, the complainant went back home and narrated the incident to her family members and thereafter, went to the police station to file her complaint. However, during crossexamination, complainant has admitted that the complainant did not make a call at 100 number from her mobile phone despite the fact that she was in possession of her mobile phone. Complainant admitted that she was having a love affair with the accused for 23 years and used to meet him alone at the said time. Complainant also admitted that at the time of incident, she was accompanied with her friend namely Pooja however, the aforesaid friend of complainant never joined the investigation to depose in favour of complainant or to substantiate the claim of the complainant of being stalked, beaten, abused and threatened. Further, the complainant admitted that the incident had taken place in the presence of public persons but none of the public persons were examined by the prosecution. Considering the fact that most of the time, no public person is willing to participate in any such proceedings and even ignoring the fact that no public person was examined State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 16 of 19 by the prosecution, the conduct of the complainant still remains doubtful as the complainant has admitted during her crossexamination that when the incident occurred, she did not make any hue or cry or raised alarm or sought help from the public persons. Further, after the alleged severe beatings, she walked back home which took her 25 minutes but during that time, did not inform regarding the incident to any person. It is further difficult to believe that though the complainant has alleged to have been beaten by fist and blows, she refused to get herself medical examined and therefore, her medical examination was not got conducted and for the same reason, there was no document in the form of medical legal report to ascertain if any injury was received by the complainant or if any offence u/s 323 IPC was made out against the accused. Further, though the complainant has claimed that accused had threatened her at the time of incident, the aforesaid fact is not corroborated by any independent witness and therefore, even the ingredients for the offence to have been committed u/s 506 IPC are made out. If we carefully peruse the testimony of PW5 Ajay Kumar, Nodal Officer, Bharti Airtel who had brought the call detail records of the complainant as well as the alleged mobile number of the accused, it is stated by the aforesaid witness during his crossexamination that as per the call detail report of aforesaid mobile numbers between 01.06.2017 to 10.06.2017, there were no incoming or outgoing call or SMS between the two numbers. Therefore, the contention raised by the complainant that the accused had been stalking her by giving her phone calls prior to the date of incident are also not substantiated and are State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 17 of 19 contradictory to the call detail report Ex.PW5/A to Ex.PW5/E. Further, despite the fact that the mobile number 9717456809 was in the name of one person Mustafa Ali and not in the name of accused Yogesh Kumar, IO has conveniently abdicated himself from conducting any investigation in this regard or to ascertain that the aforesaid mobile phone number was being used by the accused at the alleged time of the incident or prior thereto.
11. In view of the aforesaid discussion and after considering the testimony of all the witnesses examined by the prosecution, I am of the considered view that there are several contradictions in the testimony of the formal witnesses and the complainant. I find merit in the arguments advanced on behalf of accused and the fact that the accused was apprehended when he reached the PS soon after the incident and the aspect that the complainant did not even make call at 100 number, the Prosecution has failed to prove the guilt of accused beyond reasonable doubt and has failed to prove that accused was following the complainant with the intent to foster personal interaction repeatedly despite her clear indication of her disinterest or he had ever contacted the woman by any electronic communication. Accused Yogesh Kumar is accordingly acquitted of offences U/s 354D/323/506 IPC.
12. Further, the complainant has failed to depose the alleged indecent words used against her by the accused and also do not substantiate State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 18 of 19 that the said words would amount of insulting the modesty of the complainant. The complainant has nowhere stated that alleged language or words used against her. To constitute an offence u/s 509 IPC, it was required for the prosecution to prove that the accused had occurred some words or made some sound, gesture or exhibited any object or intruded upon the privacy of the complainant and the same was done with the intention to be heard or seen by the women and also with the intention to insult her modesty. However, in the present matter, none of the averments of the complaint revealed any such word, sound or gesture to have been made towards her by the accused. Therefore, in my considered view, offence u/s 509 IPC does not stand proved against the accused and therefore, accused is liable to be acquitted for the aforesaid offence.
13. Further, there are no allegations pertaining to the exact threats being extended to the complainant by accused on the date of incident which criminally intimidated her and therefore, no offence u/s 506 IPC is made out against him. Therefore, accused stands acquitted for all offences.
Announced in Open Court (Sheetal Chaudhary Pradhan)
On 18.09.2019 Metropolitan Magistrate02,
(Mahila Court)/SED/Saket,
Digitally signed New Delhi.
by SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2019.09.19
10:26:26 +0530
State Vs. Yogesh Kumar; FIR No.218/17, PS OIA 19 of 19