Delhi District Court
Jitender @ Jeetu vs State on 10 April, 2019
IN THE COURT OF SH. VIDYA PRAKASH:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No. 04/2019
CNR No. DLNE01-000140-2019
JITENDER @ JEETU
S/o Sh. Surya Mani Tiwari
R/o E-1/839, Gali No. 13,
4th Pusta, Sonia Vihar,
Delhi-110094.
....... Appellant
Vs.
STATE
..... Respondent
Date of Institution : 14.01.2019
Judgment Reserved on : 01.04.2019
Date of Judgment : 10.04.2019
93
9
FIR No. : 588/2014
PS. : Sonia Vihar
U/s. : 341/354-A/506/509 IPC
JUDGMENT :
1. This criminal appeal has been filed by appellant against the judgment dated 27.01.2018 passed by Ms. Preeti Agarwala, learned MM, North- East in State case arising out of FIR No. 588/14 PS Sonia Vihar. Vide the impugned judgment, appellant/accused Jitender @ Jeetu was convicted for the offences punishable u/s 506(1)/509 IPC. The appeal is also directed against order on sentence dated 12.12.2018 vide which appellant was directed to undergo simple imprisonment for a period of two months and to pay fine of Rs. Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 1 of 17 5,000/- for the offence punishable u/s 506(1) IPC and simple imprisonment for a period of two months and to pay fine of Rs. 5,000/- for the offence punishable u/s 509 IPC. The sentences were directed to run concurrently.
2. I have already heard Sh. A.K. Dubey, learned counsel for the appellant and Sh. D.K. Singh, learned Addl. PP for State/respondent. I have perused the record including the trial court record.
3. Shorn of unnecessary details, the appellant was sent to face trial before learned Trial Court on the allegations that on 12.11.2014 at about 1:38 pm when the complainant (PW-1) (identity being withheld) was returning back to her house and reached on the way near Satyam Kothi, the appellant while driving his motorcycle came from behind and abused her. When she asked him as to whom he was abusing, he said that he was abusing her and also uttered obscene words to her. She slapped him and when appellant tried to slap her, she somehow managed to save herself. Thereafter, the appellant gave threat to see her and left away on his said motorcycle. These allegations contained in written complaint (Ex.PW1/A) led to registration of FIR in question and investigation was entrusted to HC Karamveer Singh (PW-5) of PS Sonia Vihar.
4. During the course of investigation, PW-5 carried out relevant proceedings including preparing rough site plan at the instance of PW-1; got statement u/s 164 CrPC of PW-1 recorded before learned Link MM; arrested the appellant herein and recorded statements u/s 161 CrPC of relevant witnesses. Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 2 of 17 After completion of investigation, chargesheet was filed against the appellant.
5. After framing of charge against appellant for offences punishable u/s 509/506(1) IPC on 07.02.2017, prosecution was called upon to lead its evidence during trial. In all, prosecution examined five witnesses i.e. victim as PW-1, mother of victim as PW-2, PW-3 Ct. Rinku, PW-4 ASI D.K. Tyagi and PW-5 ASI Karamveer Singh. Out of these five witnesses, PW-4 is formal witness having prepared chargesheet in this case, whereas PW-2 is the witness to the extent of furnishing written complaint (Ex.PW1/A) by her daughter (PW-1) in her presence and admittedly, she was not present at the time of alleged incident. PW-3 and PW-5 remained associated during investigation of this case. The relevant portions of the testimonies of the witnesses shall be discussed hereinbelow.
6. Thereafter, statement u/s 313 r/w Sec. 281 CrPC of appellant was recorded on 20.11.2017, wherein incriminating evidence was put to him but he denied the same. He claimed his innocence and explained that he was falsely implicated by complainant as dispute was going on between his family and the family of complainant on account of construction of extension to a temple near the gate of his house, to which they had objected. He denied that any such incident had taken place. The appellant preferred to lead defence evidence and examined himself as DW-1, apart from two more witnesses i.e. DW-2 Sh. Suryamani Tiwari and DW-3 Sh. Sanjay Singh. At this juncture, it is relevant to note that no formal application u/s 315 CrPC moved by appellant seeking permission to examine himself as defence witness and no judicial order allowing Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 3 of 17 any such request, is found available on Trial Court Record.
7. Be that as it may, all the three defence witnesses have deposed about the previous property dispute pending between the parties prior to alleged incident in question.
8. After hearing the arguments on behalf of both the sides, learned Trial Court came to the conclusion that the prosecution has been successful in establishing the guilt of appellant for offences punishable u/s 506(1)/509 IPC beyond reasonable doubt vide judgment dated 27.01.2018 and consequently, appellant stood convicted for said offences and sentences as aforesaid, were imposed upon him vide order dated 12.12.2018.
9. The impugned judgment and order on sentence have been assailed on various grounds inter alia amongst them are that Trial Court failed to consider the previous enmity between him and the complainant on account of property dispute already going on and which fact was duly admitted by complainant (PW-
1) during her cross-examination; complainant made considerable improvement in her testimony during trial viz-a-viz her statement u/s 161 CrPC; no independent public witness examined during investigation or produced during trial; PW-1 could not disclose make, colour or registration number of motorcycle allegedly used while committing the alleged offences despite the fact that parties are next door neighbourers and there are contradictions appearing in the testimony of PW-1viz-
a-viz the prosecution story as mentioned in the chargesheet. It is further claimed Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 4 of 17 that Trial Court erred in not relying upon the testimonies of DW-1 to DW-3 while arriving at the conclusion of guilt. Therefore, it is urged that the impugned judgment and order on sentence are liable to be set aside.
10. Learned Counsel for appellant had argued on the aforesaid lines as detailed in the grounds of appeal. He contended that contents of PCR call recorded at PS Sonia Vihar vide DD No. 16-A dated 12.11.2014, are contrary to the allegations contained in written complaint (Ex.PW1/A) which further shows that false allegations were made against appellant out of ulterior motive. He further argued that PCR caller was not examined during investigation nor produced during trial. Hence, the impugned judgment and order on sentence may be set aside.
11. On the other hand, Ld. Addl. PP supported the impugned judgment and order on sentence by submitting that Trial Court has duly considered the entire evidence, ocular as well as documentary, led during trial and has properly appreciated the evidence in correct perspective. Therefore, this court should not interfere with the findings of Trial Court while exercising its power of appellate court. He therefore urged that the present appeal is devoid of merit and same should be dismissed accordingly.
12. In order to appreciate the rival submissions made on behalf of both the sides, it would be necessary to discuss the testimony of complainant (PW-1) who is sole star witness of the prosecution case. As already noted above, PW-1 Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 5 of 17 filed written complaint (Ex.PW1/A) on 12.11.2014, wherein it was alleged that appellant came on motorcycle from her behind and she was already knowing him as he was resident of Gali No. 13 in the same locality and he abused her and when she asked him as to whom he was abusing, he claimed that he had abused her and also used obscene words. It is pertinent to note that what kind of obscene words were used by appellant, were not mentioned in the said complaint. It is also alleged that appellant had extended threat to see her while leaving on his motorcycle.
13. It may be noted that in her statement u/s 164 CrPC (Ex.PW1/B) recorded on 13.11.2014, PW-1 stated on oath that appellant had abused her in the name of 'Raand' and when she scolded him, he again abused her and used obscene language to her and also extended threat that he would not spare her while fleeing away from the spot. She also stated that at the time of incident, her both the brothers were away on their respective job/occupation and her parents had gone to Vaishno Devi and when she was writing her written complaint in PS, her parents also reached there. She also stated therein that she wanted safety for herself and for her brothers as sister of appellant and her two other friends had extended threat to falsely implicate her (PW-1) brother Lalit in some case.
14. As against above, PW-1 when entered into witness box during trial, deposed that on the alleged date, time and place, appellant came from her behind on his motorcycle and abused her in the name of 'Raand' and when she asked him as to whom he was abusing, he said that he was abusing her and he Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 6 of 17 would repeat the same. When appellant tried to slap her, she slapped him instead. The appellant left while extending threat to see her later on. She further deposed that she had visited PS as her parents had gone to Vaishno Devi Temple, Jammu and her both the brothers had also gone to attend their job/occupation. Her parents visited PS at about 4:00 pm. She gave written complaint (Ex.PW1/A) and when she left PS alongwith her mother and was about to enter Gali No. 12, mother and sister of appellant were talking about to falsely implicate her brother in some false case. During her cross-examination, she admitted that appellant was her neighbourer for the last about 20-21 years and also admitted that she was having another property no. E-1/838, out of khasra no. 246/235/236 situated in Gali No. 13, E-Block, Sonia Vihar, Delhi. She also admitted that there was 14 sq. yard land in front of her house and the house of appellant and also admitted that her mother had filed civil suit against appellant and his family members, which was still pending decision. She admitted that quarrel had taken place between her family and family of accused and kalandra u/s 107/151 CrPC was prepared against fathers of both the sides. She also testified that on 04.11.2014, quarrel had taken place as father of appellant was raising a wall in front of gate of her property. She also admitted that on 17.02.2015, quarrel had taken place and kalandra u/s 107/151 CrPC vide DD No. 31-B was prepared at PS Sonia Vihar against her as well as against her mother, besides Sushil and Manoj regarding incident of construction of property and there was issue of beating by bricks.
Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 7 of 17
15. PW-2, who is mother of complainant i.e. PW-1, did not support the case of prosecution to the extent that written complaint (Ex.PW1/A) was handed over by her daughter to the IO at the spot, where after Ct. Rinku had gone to PS for registration of FIR. She gave evasive replies during her cross-examination by deposing that she cannot tell as to whether litigation was going on between her and appellant before Ld. Civil Judge, North-East District and she did not know whether case u/s 107/151 CrPC was pending between her husband and father of appellant. She also did not remember if any quarrel had taken place on 04.11.2014 as father of appellant was raising wall in front of gate of her property. She also did not remember whether any kalandra u/s 107/151 CrPC was prepared on 17.02.2015 vide DD No. 31-B in PS Sonia Vihar against her, complainant of this case, Sushil and Manoj regarding construction of property and whether her statement was recorded by police official or not.
16. DW-1 i.e. appellant himself, entered into witness box and deposed that on 12.11.2014 at about 5:00pm, complainant with her parents and one police constable visited his house and he was asked to sign on some documents. On his query, he was told that complainant had made complaint against him and they would be sending the matter to the court and also told him to settle the matter before the court. He also testified that there was land dispute between his family and family of complainant for the last 10 years. He could not produce relevant documents concerning property dispute during cross-examination. He admitted that he and complainant were neighbours and testified that he did not have any Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 8 of 17 motorcycle.
17. The testimonies of DW-2 and DW-3 are to the effect that there was some property dispute between both the families for the last 10-12 years. DW-2 also deposed that complainant and her family members used to make false and fabricated complaints against him and his family and also used to extend threats to implicate them in false and fabricated cases and civil case was pending between the parties before Ld. Civil Judge. He although claimed to have lodged police complaint against complainant but did not produce any such complaint while cross-examined by Ld. Addl. PP. He deposed that his son had a motorcycle but did not remember its registration number. DW-3 also deposed that on enquiry made from his neighbourhood, it was revealed that false and fabricated case was got registered against the appellant and no such incident had taken place. However, he admitted during his cross-examination that he was not present at the spot at the time of alleged incident and he was having good relations with the appellant as he was having his godown in the neighbourhood of the paan shop of appellant.
18. Thus, it is crystal clear that the testimonies of DW-1 to DW-3 are not of much relevance except to the extent that property dispute was already going on for the last 10 years between both the families since prior to the alleged incident in question. In this backdrop, it was the duty of Trial Court to consider the testimony of PW-1 with great caution and circumspection as the appellant has been held guilty merely on the basis of sole testimony said witness. Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 9 of 17
19. Now, it would be appropriate to discuss the relevant part of the impugned judgment as to how the Trial Court has appreciated the testimony of PW-1 in the impugned judgment. While rejecting the testimonies of DW-1 to DW- 3 by observing that their depositions are relevant only to the extent of property dispute already pending between the parties and which fact was admitted by PW- 1 during her cross-examination, Ld. Trial Court held that the appellant did not lead any sufficient evidence to prove his defence and there is no reason as to why complainant would falsely implicate him in the case and no effort was made by appellant to examine any other independent witness to prove that no such incident had taken place. It further held that sufficient evidence was led by prosecution against the appellant and same sufficiently established the guilt of the appellant beyond reasonable doubt.
20. At this juncture, I may note that it is the cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt, whereas the accused is merely required to prove the defence on the basis of preponderance of probabilities. It is equally well established principle of law that prosecution has to stand on its own legs and mere weakness in the defence raised by accused, would not fill up the lacunae in the case of prosecution and accused should not be convicted on that ground.
21. While appreciating the testimony of PW-1, Ld. Trial Court failed to take note of the fact that written complaint (Ex.PW1/A) which is the first complaint lodged by complainant having led to the registration of the FIR, is totally silent as Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 10 of 17 to what kind of abuse was made by appellant. Likewise, it is also silent as to what kind of obscene words were used by appellant. As mentioned above, said written complaint was given in concerned P.S. on 12.11.2014 i.e. on the date of alleged incident itself, when the facts would be fresh in the mind of complainant. However, on next day i.e. 13.11.2014 when her statement u/s 164 CrPC (Ex.PW1/B) was recorded, she came out with the statement that appellant had abused in the name of 'Raand'. Not only this, she made further improvement by claiming therein that appellant again abused her, which fact is not found mentioned in her written complaint (Ex.PW1/A). Even in said statement, she did not explain as to what kind of obscene words were used by appellant at that time. Even otherwise, the prosecution failed to explain through PW-1 during trial as to why she did not mention in her written complaint (Ex.PW1/A) that appellant had abused her in the name of 'Raand'.
22. Section 509 IPC reads as under:-
509. Word, Gesture or Act intended to insult the modesty of a woman:- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gestures, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, (shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.)
23. The bare perusal of the aforesaid provision would show that said offence would be attracted only if a person intending to insult the modesty of a woman, utters any word, makes any sound or exhibits any object, intending that Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 11 of 17 such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman. Now, the question arises as to what is the meaning of the expression ' making gesture' used in Section 509 IPC. Ordinarily, the said term is used to refer to making of body signs implying movement of the limbs, etc. The word 'gesture' is not defined under Indian Penal Code. According to the Concise Oxford Dictionary 8 th Edition, the meaning of the said term is "a significant movement of a Limb or the body; the use of such movement especially to convey feeling or as rhetorical device; an act to evoke a response or convey intention". Likewise, as per law of Lexicon, the word 'gesture' means a posture or a movement of the body; an action expressive of the sentiment or passion of intended to show inclination or disposition.
24. Now, the next question arises as to whether the interpretation of the expression 'making gesture' referred to in Section 509 IPC, going by the Dictionary meaning, will be in conflict with the intention of legislature or not. Hon'ble Apex Court in the matter titled as " Justice of A.P Vs. L.V.A. Dixitulu"
reported at AIR 1979 SC 193 has observed as under:-
"The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according to the intent of they that made it' (coke). Normally, such intent is gathered from the language of the provisions".
25. In India, legislature decided, with the past experience, that a woman must be protected not only from the physical aggressions made in the course of Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 12 of 17 outraging her modesty but she should also be shielded from various other acts which do not involve even a touch. That is why, even a verbal attack on a woman, a gesture and other acts stated in Section 509 IPC were brought within its ambit. Thus, it can very well be said that the acts which are so intending to insult the modesty of a woman which may not necessarily involve even any physical advances were also brought within the sweep of Section 509 IPC.
26. Having considered the facts of the present case on the anvil of the principles discussed herein above, I am totally in agreement with the submissions made on behalf of appellant that the necessary ingredients constituting offence punishable U/s 509 IPC are completely lacking in this case. As already mentioned above, the police complaint which led to the registration of the FIR in question, is totally silent that the appellant uttered any word or made any sound, gesture or exhibited any object intending that such words or sound should be heard or such gesture or object shall be seen by any woman or that he had any intention to insult the modesty of any woman or intruding upon the privacy of the woman. For the sake of repetition, I may note here that written complaint (Ex.PW1/A) as also statement u/s 164 CrPC (Ex.PW1/B) and the testimony of PW-1 recorded during trial, when considered together, would depict that she only claimed therein that appellant had abused her and had uttered obscene words and nothing beyond that. It is nowhere the case of prosecution that the appellant had made any sound or gesture or exhibited any object during the alleged incident intending to insult the modesty of PW-1. The case of prosecution was Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 13 of 17 rested upon the allegations that the appellant had used abusive language against PW-1. However, the fact remains that the words allegedly used by appellant have not been brought on record. The allegations in this regard are found to be totally vague and are not supported by any definite and cogent evidence being brought on record during trial.
27. It would also be relevant to refer to Section 503 IPC which deals with the 'Criminal Intimidation'. Same reads as under:-
503. Criminal Intimidation:- Whoever threatens another with any injury to his person, reputation or property, or to the 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 omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
28. It is evident from the perusal of the aforesaid provision that in order to constitute the said offence which is punishable U/s 506 IPC, it is essential that alarm should be caused in the mind of the person so intimidated. In the matter titled as " Kuldeep Raj Mahajan Vs. Hukam Chand" 2007 SCC Online P&H, 1251, the allegations levelled against the petitioners were that he extended threat to the life of the respondent. Hon'ble Punjab & Haryana High Court held in para- 11 of the judgment that alleged empty threat to implead the respondent in false case or to get him removed from the services, would not come within the mischief of Criminal Intimidation punishable U/s 506 IPC.
29. Now turning back to the facts of the present case. The only Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 14 of 17 allegation appearing against the appellant is that he had extended threat to PW-1 to see her while fleeing away from the spot. It is nowhere the case of prosecution that appellant was armed with any sort of weapon at the time of alleged incident or that any sort of alarm was caused to the complainant. There is also nothing on record to show that the complainant was compelled to do an act which she was not legally bound to do or was made to omit to do any act which she was entitled to do. It is nowhere the case of prosecution that the complainant had left the spot fearing any kind of threat to her life or to the life of her family member.
30. Apart from above, it is relevant to refer to the contents of DD no. 16- A dated 12.11.2014 recorded at PS Sonia Vihar on the basis of information transmitted through Control Room. It is found from Trial Court Record that investigating officer neither cared to collect PCR form from CPCR nor he ever tried to examine PCR caller during investigation. In other words, it is not clear from Trial Court Record as to who had made said PCR call. It is recorded in DD No. 16-A (supra) that "one lady has abused at 4 ½ Pushta, Sonia Vihar, E-1/484, Gali No. 12 and is extending threat". It follows from it that said PCR call would not have been made by complainant (PW-1). If that is so then it is not clear as to whether the complainant had actually made any PCR call, as claimed by her in her written complaint Ex.PW1/A, in her statement u/s 164 CrPC (Ex.PW1/B) as well as during her testimony as PW-1 recorded during trial. Considering the fact that it was the first information given by complainant to the Police Control Room, said PCR form and consequent DD entry which would have been recorded at PS Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 15 of 17 based on said information, was material piece of evidence, which seems to have been withheld by investigating agency from the court of law.
31. There is yet another reason which persuades this court not to believe the testimony of PW-1 and at least to give benefit of doubt to the appellant. The case of prosecution as appearing in the chargesheet is that on receipt of PCR call vide DD No. 16-A, HC Karamveer alongwith Ct. Rinku went to the place of information, where they met the complainant and made enquiries from her, where after she gave written complaint (Ex.PW1/A) on the basis of which HC Karamveer prepared rukka and got the FIR in question registered through Ct. Rinku. However, PW-1 as well as PW-2 have testified contrary during trial by deposing that PW-1 herself had visited PS Sonia Vihar on 12.11.2014, where she had given written complaint (Ex.PW1/A). There is yet another contradiction appearing on record in the form of case of prosecution being that Ex.PW1/A was handed over by PW-1 to PW-5 at the spot in the presence of her mother (PW-2), whereas PW-1 and PW-2 testified during trial that PW-1 alone had visited PS and her parents including PW-2 had directly reached PS at the time when said written complaint was being prepared by PW-1. Despite being declared partly hostile and being put to cross-examination, PW-2 denied the suggestions on behalf of Stated that PW1/A was handed over at the spot or that same was sent to PS through Ct. Rinku for registration of FIR.
32. In the light of aforesaid discussion, the present appeal stands allowed. The impugned judgment dated 27.01.2018 and the consequent order on Crl. Appeal No. 04/2019 Jitender @ Jeetu Vs. State Page 16 of 17 sentence dated 12.12.2018 passed by Ld. Trial Court, are hereby set aside and the appellant namely Jitender @ Jeetu is hereby acquitted of the charges levelled against him.
33. Appellant is however directed to furnish personal bond in the sum of Rs. 20,000/- with one surety in the like amount in terms of Sec. 437-A CrPC.
34. TCR be sent back alongwith copy of this judgment.
35. Appeal file be consigned to Record Room.
Digitally signed by VIDYA
Announced in the open court VIDYA PRAKASH
Location: Karkardooma
Court
on 10th day of April, 2019. PRAKASH Date: 2019.04.10
14:32:17 +0530
(VIDYA PRAKASH)
Additional Sessions Judge /
NE / KKD Courts / Delhi.
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