Delhi District Court
State vs Naresh Kumar on 31 July, 2024
IN THE COURT OF SH. AVIRAL SHUKLA, JUDICIAL MAGISTRATE
FIRST CLASS-05, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
CNR No. DLST02-015928-2017
IN THE MATTER OF:
STATE Vs. NARESH KUMAR
FIR no. 119/2015
PS MEHRAULI
JUDGMENT
A) Sl. No. of the case : CR No. 3115/2017
B) The date of commission of : 12.01.2015
offence
C) The name of the complainant : Smt. Rama, W/o Sh. Gore Lal, R/o H.
No. 152, A Block, Ambedkar Colony,
Andheria Mod, New Delhi.
D) The name and address of accused : Naresh Kumar, S/o Sh. Daya Ram,
R/o H. No. A-94, Ambedkar Colony,
Chhattarpur Pahari, New Delhi.
E) Offence complained of : 506-II/509 IPC
F) The plea of accused : Not Guilty
G) Final Order : Acquitted u/s 506-II/509 IPC
H) The date of such Order : 31.07.2024
DATE OF INSTITUTION : 03.08.2017
DATE OF FINAL ARGUMENTS : 25.07.2024
DATE OF JUDGMENT : 31.07.2024
FIR No.119/2015 State Vs. Naresh Kumar Page No.1 of 14
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.07.31
16:51:16 +0530
BRIEF FACTS
1. The present case has originated from the charge-sheet filed by the State under Sections 506-II/509 IPC against accused namely Naresh Kumar. As per the charge-sheet, on 12.01.2015, at about 08:00 PM at H. No. 152, A Block, Ambedkar Colony, Andheria Mor, New Delhi i.e. within the jurisdiction of PS Mehrauli, the accused had intended to insult the modesty of the complainant Smt. Rama and uttered filthy words intending that the words shall be heard by the complainant. It is further alleged that the accused had threatened to kill the complainant and gave a kick blow on the shop counter of the complainant with the intent to cause alarm to the complainant and thereby committed offences punishable under Sections 506- II/509 IPC.
2. On the basis of the charge-sheet, the Court took cognizance of the offences on 03.08.2017 and the accused was supplied with copy of chargesheet alongwith documents in compliance of Section 207 Cr.P.C. The Court framed the charge against the accused for offences punishable under Sections 506-II/509 IPC. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, the prosecution has examined the following six witnesses:
(i) PW1 was Ms. Rama;
(ii) PW2 was Ms. Jamna;
FIR No.119/2015 State Vs. Naresh Kumar Page No.2 of 14
Digitally signed
AVIRAL by AVIRAL
SHUKLA
SHUKLA Date: 2024.07.31
16:51:26 +0530
(iii) PW3 was ASI Narender;
(iv) PW4 was SI Jitender;
(v) PW5 was HC Rajeev Kumar; and
(vi) PW6 was SI Gopal.
4. PW-1 Ms. Rama deposed that on 12.01.2015, her neighbour i.e. accused came at her shop and started abusing her by uttering some abusive words. She also deposed that accused also threatened her by uttering abusive words i.e. "maadarchodi, Bhen ki lodi" and threatened her by saying 'muje aur mere pariwar ko jaan se maar dega, meri dukan tod dega'. Thereafter, she made call at 100 number to police. Police officials came there and recorded her statement Ex. PW- 1/A. Later on, police official got recorded her statement in the court which was recorded by concerned Ld. MM, which is Ex. PW-1/B. Witness has correctly identified the accused before the Court.
5. PW-1 Ms. Rama, in her cross-examination, deposed that when accused Naresh came there, she and her daughter in law namely Jamna Devi were present at their home. Accused came at her home. PW1 has stated that she was having the house-cum-shop. She was present inside the shop. However, accused came there while abusing with abusive language. She further deposed that 2-3 other persons also came there alongwith the accused, however they were merely spectators. She denied the suggestion that they had taken the money from the accused. She had voluntarily deposed that accused is a habitual drinker and he has no capacity to give money as a loan to anyone.
FIR No.119/2015 State Vs. Naresh Kumar Page No.3 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:51:32 +0530
6. PW-1 Ms. Rama has further deposed in her cross examination that they are residing at above mentioned address for last 10-15 years and since then they know the accused as the accused was living in the nearby area. She voluntarily deposed that most of the time, accused was kept in the jail in various cases. Prior to the present incident, accused had not committed any offence with them. However, after the incident, accused had quarreled with them. Witness denied the suggestion that she had made the false complaint against accused Naresh only to implicate him in a criminal case. She has also denied the suggestion that accused Naresh had not used any abusive language with her.
7. PW-2 Jamna deposed that on 12.01.2012, at around 8 AM, she alongwith her mother in law were present at her house. Accused came there and started using abusive language (gandi gandi galia) against her and her mother in law namely Rama Devi. At that time, accused had threatened by saying 'Jaan se maar dunga'. Her mother in law had called at 100 number. Accused had fled away from there after the incident. Her mother in law had given the complaint. PW-2 Jamna also correctly identified the accused before the Court.
8. When PW-2 Jamna was cross examined by Ld. defence counsel, she deposed that she knew the accused for the last 10-15 years as accused was living in the same vicinity. She stated that she has no relation with the accused. After the incident, 2-3 times incident of quarrel took place and accused had damaged their paan shop. However, police officers had not taken any strict action against the accused. Police officers had not received her complaint. She denied the suggestion that they had borrowed some amount from accused Naresh. She stated that accused was not FIR No.119/2015 State Vs. Naresh Kumar Page No.4 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:51:37 +0530 known to them prior to the incident. She along-with her mother in law were present at her home, when accused came there and was standing outside her house.
9. PW-2 Jamna further deposed in her cross-examination that there was no other public persons at that time as the incident took place at around 08.00 PM. No one came forward after the incident. A quarrel took place and her mother in law called at 100 number. Accused had used vulgar language, however, her mother in law had not given abusive language to the accused.
10. PW-3 ASI Narender deposed that on 12.01.2015, at about 11:15 PM, he had received the investigation of the present case as per the directions of the SHO concerned. At that time, concerned Duty Officer had handed over the computerized copy of FIR and original rukka. The said rukka was prepared by SI Gopal. He had gone through the same. On 14.01.2015, he had visited the spot i.e. H. No. 153, Dr. Ambedkar Colony, New Delhi and there, he met the complainant namely Smt. Rama. At the instance of the complainant, he prepared the Site Plan. He voluntarily deposed that he had not obtained the signature of the complainant on the Site Plan as there was no requirement of the signature on the Site Plan. He inquired from the complainant who corroborated the contents of the complaint which was already recorded by SI Gopal.
11. PW-3 ASI Narender further deposed that he made the efforts to trace out any public witness. However, no eye witness was traced out at that time. He made the request to record her statement of the complainant under Section 164 Cr.P.C. However, complainant was not ready to give any her statement due to some FIR No.119/2015 State Vs. Naresh Kumar Page No.5 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:51:43 +0530 personal difficulty and offered to give the same later on. He had not served any notice upon the complainant at that time. Later on, during the investigation, he personally visited the house of the complainant to make request to give her statement under Section 164 Cr.P.C. before the Ld. MM. However, again she was not ready to give her statement. He then recorded the supplementary statement of the complainant. In the meanwhile, during the investigation, he got transferred and he handed over the case file to MHC (R).
12. When PW-3 ASI Narender was cross-examined by Ld. defence counsel, he deposed that he had recorded the supplementary statement of the complainant during day time. However, he did not remember the exact time thereof. He made the efforts to record the statement of the public witnesses, however, no public witness was traced out at that time. He made the site plan in the present case. Further, he recorded the supplementary statement of the complainant. Complainant did not refuse to sign the site plan in the present case. PW-3 ASI Narender further deposed that after several reminders to the complainant, she did not get ready for recording of her statement u/s 164 CrPC.
13. PW-4 SI Jitender Kumar deposed that in the month of June, 2015, he had received the investigation of the present case from MHC (R). Previous IO was HC Narender and he inquired from him about the present case, who stated the facts and circumstances to him. He had conducted the investigation and during the investigation, he visited the house of the complainant and made a request to her to give her statement under Section 164 Cr.P.C. Statement of the complainant got recorded under Section 164 Cr.P.C. before the Ld. MM concerned. During the FIR No.119/2015 State Vs. Naresh Kumar Page No.6 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:51:49 +0530 proceeding under Section 164 Cr.P.C., he identified the complainant. Proceeding under Section 164 Cr.P.C. is Ex PW-1/B.
14. PW-4 SI Jitender Kumar further deposed that during the investigation, he inquired from the eye witness namely Jamuna Devi and recorded her statement under Section 161 Cr.P.C. Later on, he called the accused through one constable. In pursuance of the same, accused reached at the PS. He inquired from the accused and recorded disclosure statement of the accused which is Ex. PW-4/A. After satisfaction, he arrested the accused vide arrest memo Ex. PW-4/B. He discussed the facts and circumstances of the present case with the SHO concerned. Accused was released on the police bail. After completion of the investigation, he prepared the draft of the charge-sheet. In the meanwhile, he got transferred from PS Mehrauli and he handed over the case file to MHC (R). Witness has correctly identified the accused before the Court.
15. When PW-4 SI Jitender Kumar was cross examined by Ld. defence counsel, he deposed that when he visited the house of the complainant, it was found locked. Subsequently, he met the complainant. As far as he remembered, he met the complainant after about two months. He had made efforts to record the statement of the eye witness / neighbour but no one was ready to give their statement. There was no CCTV at the spot. He had not recorded any further statement of the complainant. He had recorded the statement of the eye witness in the present case. As he met the complainant, she was ready to give her statement u/s 164 CrPC.
16. PW-5 HC Rajeev Kumar deposed that he has filed the charge-sheet and the FIR No.119/2015 State Vs. Naresh Kumar Page No.7 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:51:55 +0530 complete investigation in the present case was done by ASI Jitender. Charge-sheet is Ex. PW-5/A. Cross-examination of PW-5 HC Rajeev Kumar was recorded as nil despite of opportunity given to counsel for accused.
17. PW-6 SI Gopal deposed that at about 08.00 PM, Duty Officer had informed him regarding call received of an incident relating to quarrel. On receiving of this call, he along-with constable reached at Ambedkar Colony, Chhattarpur Pahadi where complainant Rama, W/o Sh. Gorelal met them and gave her statement regarding threatening and use of filthy language by one Naresh Kumar. As per the contents of the original statement / original tehrir, he had prepared a rukka u/s 506/509 IPC on which the above FIR was registered. He further stated that further investigation of this case was handed over to HC Narender. The original tehrir is Ex. PW-1/A. The rukka is Ex. PW-6/A. He did not play any other role in the investigation of the present case. Cross-examination of PW-6 SI Gopal Singh was recorded as nil despite of opportunity given to counsel for accused.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE
18. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him. Accused pleaded innocence and claimed to have been falsely implicated. He further stated before the court that only a verbal spat happened between him and the son of the complainant. He stated that he did not commit any offence qua the complainant. Accused Naresh thereafter chose not to lead evidence in his defence.
FIR No.119/2015 State Vs. Naresh Kumar Page No.8 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:52:01 +0530 FINAL ARGUMENTS
19. Final arguments were heard at length from Ld. counsel for accused and Ld. APP for the State. Ld. Counsel for the accused has vehemently argued that the prosecution has not substantiated its case. It has further been argued that testimonies of PW1 and PW2 are not reliable as they indicate significant improvements to the version provided in the original complaint made by the complainant. It is argued that there are several material inconsistencies in the prosecution version. It is lastly stated that PW2 Jamuna Devi is an interested witness as she is the daughter in law of the complainant. It is thus prayed that the accused be acquitted as he has been falsely implicated in the case.
20. On the contrary, Ld. APP for the State has strongly argued that this is a fit case for conviction as the prosecution has proved the case beyond reasonable doubt. Ld. APP for the State has argued that the testimonies of PW-1 and PW-2 are consistent. She has accordingly prayed that the accused be convicted for the offences.
COURT OBSERVATION
21. The first offence with which the accused has been charged is the offence u/s 506-II of IPC i.e. the offence of 'Criminal Intimidation'. It has been alleged that the accused criminally intimidated the complainant by threatening to kill . Section 503 IPC defines the offence of 'Criminal Intimidation' and Section 506 IPC provides the punishment for the offence in the following manner-
503. Criminal intimidation.--Whoever threatens another with FIR No.119/2015 State Vs. Naresh Kumar Page No.9 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:52:07 +0530 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 intim- idation. 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; 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 1[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.
22. Upon considering the bare provisions of IPC qua offence of 'Criminal Intimidation', it is also pertinent to give due regard to the judicial pronouncements covering the offence in question. In the judgment rendered in ' Dr. Subramanian Swamy v. C. Pushpraj , 1988', the Hon. Madras High Court has delineated the essential ingredient of 'criminal intimidation' in the following manner-
"Part II of Sec. 506, IPC is attracted if the criminal intimidation includes threat to cause death or grievous hurt. Mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506, IPC. In the instant case, the averment in the complaint and the statements in the depositions, if taken together, there are no allegations in the whole complaint that the petitioner ever made any attempt or did any act in pursuance of his alleged expression. So also, the actual words used or supposed to have been used by the petitioner is not stated either in the complaint FIR No.119/2015 State Vs. Naresh Kumar Page No.10 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:52:12 +0530 or in the depositions. Regarding criminal intimidation to whom it was intended, whether alarm was caused, it so, what are the actual words employed are not stated either in the complaint or in the depositions. In the absence of these averments touching the ingredients, mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court." (emphasis supplied) Thus, causing of an alarm is an essential ingredient in constitution of an offence of criminal intimidation and the same must be seen in the light of the actual words that are employed. Such words must be stated by the complainant in the complaint and in the depositions. A mere use of words or a mere threat would not constitute an offence under the purview of Section 506, IPC. The aforesaid view has been supported by judgment of Hon. High Court of Delhi in 'Kanshi Ram v. State, 2000 (86) DLT 609.
23. Further, Section 509 IPC provides the punishment for the offence of 'Insulting the modesty of a woman' in the following manner:-
"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 gesture, 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."
24. Several judicial pronouncements have dealt with the aspect concerning 'insulting of modesty' of a woman as envisaged in the IPC. In the celebrated case of 'Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr.', AIR 1996 SC 309, Honorable Supreme Court of India discussed the meaning of 'modesty' as enshrined under Sections 354 and 509, IPC and noted the following:
FIR No.119/2015 State Vs. Naresh Kumar Page No.11 of 14 Digitally signed AVIRAL by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:52:18 +0530 "In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman." (emphasis supplied)
25. At the outset, it is noted that the original tehrir of the complainant has been placed on record as Ex. PW-1/A. In the original tehrir, the complainant has named the accused Naresh and stated that accused started giving ' gandi gandi gaaliya' i.e. cuss words and further stated that he 'threatened the complainant and her family'. It is stated by her that the accused had kicked the 'paan counter' of her shop after which the complainant called at 100 number. The contents of the tehrir have been repeated in the FIR bearing no. 119/2015.
26. However, it is noted that the complainant changed her version in her statement u/s 164 CrPC i.e Ex. A2. In her statement u/s 164 CrPC, the complainant had stated that the accused came and kicked the door of her house. She has stated that he started giving 'gandi gandi gaaliya' to her daughter in law and further threatened the family of the complainant to vacate the house and if they failed to do so he threatened of killing her family. As per the statement u/s 164 CrPC, the FIR No.119/2015 State Vs. Naresh Kumar Page No.12 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:52:25 +0530 accused further threatened of 'tod phod' in the shop of the complainant.
27. It is lastly noted that the complainant substantially improved her version by stating in the examination in chief dt. 25.01.2020 that the accused abused her by uttering the words : "maadarchodi, Bhen ki lodi" and further threatened her by saying 'muje aur mere pariwar ko jaan se maar dega, meri dukan tod dega' . The aforementioned specific words do not find any mention in either the original tehrir Ex. PW-1/A or the statement u/s 164 CrPC Ex. A2. It is thus prima facie apparent that the complainant continued to substantially improve the version of the incident dt. 12.01.2015 with every new statement that was being recorded. This itself reduces the reliability of the version of the complainant.
28. It is further noted that PW2 Jamuna Devi is a daughter in law of the complainant. In her testimony, she has blatently stated the date of incident to be 12.01.2012 when the actual date of incident is 12.01.2015. Hence, it appears that a patent error regarding the date occurs in the testimony of PW2. It is further noted that PW2 is the family member of PW1 / complainant. Since no other public witness has been examined in the case, the version of PW2 becomes doubtful as she may be an interested witness in the matter.
29. It is lastly noted that the prosecution has failed to produce any independent witness / public witness in the case despite of the place of occurrence being a residential locality i.e. Ambedkar Colony, Andheria Mod, Mehrauli. It is noted from the cross-examination of PW1 / complainant that 2-3 other persons were also present at the scene of alleged crime and were present as spectators. No reason is FIR No.119/2015 State Vs. Naresh Kumar Page No.13 of 14 Digitally signed by AVIRAL AVIRAL SHUKLA SHUKLA Date:
2024.07.31 16:52:31 +0530 forthcoming in the charge-sheet which may justify the non joinder of independent witnesses / public witnesses in the present case.
30. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution.
31. In view of the material irregularities and lapses in the version of the prosecution as pointed above, it is the considered opinion of this Court that the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accused namely Naresh Kumar, S/o Sh. Daya Ram accordingly acquitted for the offences under Sections 506-II/509 IPC.
32. Let bail bonds / surety bonds be furnished by the accused under Section 437A, CrPC.
AVIRAL Digitally signed by
AVIRAL SHUKLA
SHUKLA 16:52:37 +0530
Date: 2024.07.31
Announced in Open Court (AVIRAL SHUKLA)
on 31.07.2024 JMFC-05,South District/31.07.2024
Certified that this judgment contains 14 pages and bears my signatures at each page.
AVIRAL Digitally signed by AVIRAL SHUKLA SHUKLA Date: 2024.07.31 16:52:42 +0530 (AVIRAL SHUKLA) JMFC-05,South District/31.07.2024 FIR No.119/2015 State Vs. Naresh Kumar Page No.14 of 14