Delhi District Court
Title State vs . Harender Kumar on 10 July, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
JUDGMENT
FIR No. 14/2013
Police Station Ghazipur
Unique Case ID No. 149/2013
Title State Vs. Harender Kumar
Name of complainant Ms. Sudha Gupta
Name of accused Harender Kumar
S/o Sh. Bharam Singh
R/o Village Dhantala, PS Kharkhoda,
District Meerut, UP
Date of institution of challan 24.08.2013
Date of Final arguments 08.06.2023
Date of pronouncement 10.07.2023
Offence complained of Under Section 509 IPC
Offence charged with Under Section 509 IPC
Plea of the accused Pleaded not guilty
Final order Convicted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
01. Vide this judgment, I shall decide the case of the prosecution filed against accused Harender Kumar for the offence u/s 509 IPC.
FIR No. 14/2023 State Vs. Harender Kumar page 1 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 04:59:35 -0700
02. The facts of the case of the prosecution in brief is that on 12.01.2013 at about 5.00 p.m., in front of Sai Hotel A-91, G.D. Colony, Mayur Vihar, Ph-III, Delhi, accused intended to insult the modesty of complainant Sudha Gupta and uttered words and made gestures to her with respect to the same and thereafter on the complaint of the complainant, the FIR got registered. Accordingly, after the investigation, police filed the present charge sheet against the accused Harender Kumar for commission of offence punishable U/s 509 IPC.
03. Upon appearance of the accused, complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, charge for offence punishable under section 509 IPC on 27.02.2015 was framed against the accused by the Ld. Predecessor, to which he pleaded not guilty and claimed trial.
04. The prosecution had cited total 04 witnesses in the present matter whose evidence in brief is as follows:
05. PW1 is the complainant Smt. Sudha Gupta, who deposed that on 12.01.2013 at about 5.00 p.m., when she was present at her SHO/hotel, one personal namely Harender abused her from the front of her shop and also used filthy language to her such as "tu dhanda karti hai, randi, veshya, behen ki lodi, ter ladki bhi randi hai, tera FIR No. 14/2023 State Vs. Harender Kumar page 2 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2023.07.10 04:59:45 -0700 aadmi dalla hai" and wanted to beat her. She deposed that prior to this incident, accused was doing the said act for last 2-3 days. She deposed that thereafter, she called at 100 number, police came at the spot, police tookme and accused to PS where IO had recorded her statement Ex. PW1/A, prepared the site plan PW1/B at her instance, arrested the accused vide arrest memo Ex. PW1/C and conducted the personal search of accused vide Ex. PW1/D. The witness was cross- examined by the defence Counsel at length.
06. PW2 is ASI Vipin Kumar, who proved the registration of FIR Ex. PW2/A, endorsement on rukka Ex. PW2/B and DD No. 16-A Ex. PW2/C. The witness was cross-examined by the defence Counsel.
07. PW3 is Retired SI Shankar Lal, who deposed that on 12.01.2013, at about 5.00 p.m. he alongwith Ct. Vinod was returning after attending DD No. 16-A and when they reached near Sai Hotel, they saw that a person i.e. accused was abusing the lady owner of Sai Hotel, on which he intervened, apprehended and interrogated the accused. He further deposed that accused was using filthy language for that lady such as prostitute etc. He deposed that he also examined the said lady and recorded her statement Ex. PW1/A, endorsed the rukka Ex. PW3/A and got registered the FIR. He deposed that he had prepared the site plan Ex. PW1/B at the instance of the complainant, arrested the accused vide arrest memo Ex. PW1/C, personal searched FIR No. 14/2023 State Vs. Harender Kumar page 3 of 19 Digitally signed HIMANSHI by HIMANSHI TYAGI TYAGI Date: 2023.07.10 04:59:52 -0700 him vide Ex. PW1/D and recorded the supplementary statement of complainant u/s. 161 Cr.PC. He further deposed that he brought the accused to PS and sent him ot police lockup after his medical examination and recorded the statement of Ct. Vinod u/s. 161 Cr.PC and after completion of investigation he prepared the charge sheet and filed before the Court. The witness was cross-examined by the defence Counsel.
08. PW4 is HC Vinod, who was accompanying the IO on the day of incident. He deposed on the same lines as deposed by IO/SI Shankar Lal. He has proved the registration of FIR through the Duty Officer. He also proved the arrest memo Ex.PW1/C, personal search memo Ex. PW1/D. He deposed that he got medically examined the accused in LBS hosptial and thereafter, his statement was recorded by the IO. The witness was cross-examined by the defence Counsel.
09. After examination of the above four prosecution witnesses, at request, PE was closed vide order dated 30.11.2022.
10. Statements of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and has been falsely implicated in the present matter. He further stated that the complainant used to reside in his neighbourhood FIR No. 14/2023 State Vs. Harender Kumar page 4 of 19 Digitally signed HIMANSHI by HIMANSHI TYAGI TYAGI Date: 2023.07.10 04:59:59 -0700 and there was some altercation between him and the complainant with regard to the money transaction. The complainant had taken a loan from him and did not return his money back, but, he has not done any act against the complainant as alleged. and that he was not present at the spot on the day of incident. Accused wishes to led DE in his defence. However, on submission of accused, on 01.05.2023, DE was closed and no witness has been examined by accused in his defence.
ARGUMENTS:
11. I have heard the submission of Sh. Satish Shukla, Ld. APP for the State and the Ld. Counsel Sh. S K Tiwari, for the accused. Ld. APP argued that complainant/witness has supported the case of the prosecution, her testimony has remained unrebutted and has been duly corroborated and thus accused be convicted in the present case for offence under section U/s 509 IPC as case has been proved beyond reasonable doubt.
12. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused and there are material contradictions in the story of the prosecution. It is argued that ingredients of the offence punishable u/s 509 IPC have not been fulfilled, hence no case is made out.
FIR No. 14/2023 State Vs. Harender Kumar page 5 of 19
Digitally signed by
HIMANSHI HIMANSHI TYAGI
TYAGI Date: 2023.07.10
05:00:05 -0700
13. I shall consider whether the prosecution has succeeded in establishing the criminality of the accused.
14. In the present case the charge for the offence U/s 509 IPC has been framed against accused. Section 509 IPC provides punishment for use of word, gesture or act intended to insult the modesty of a woman. Section 509 I.P.C. reads as follows :
"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 one year, or with fine, or with both."
15. The word 'modesty' has not been defined in the Indian Penal Code. Bare reading of the title of Section 509 IPC itself shows that the section deals with an offence involving word, gesture or act which are intended to insult modesty of a woman. The offence under the said section will be attracted if a person intending to insult the modesty of a 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 . Though Section 323 IPC was available to protect a woman also from the use of a criminal force or assault against her, Section 354 was introduced into IPC, with a specific object. The legislature intended that a special provision must be made FIR No. 14/2023 State Vs. Harender Kumar page 6 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 05:00:12 -
available to protect a woman , if any assault or force is used against her, intending to outrage her modesty. The emphasis was on the aggressions made on the modesty of a woman. The legislature specifically intended that any assault on a woman's modesty has to be curbed and controlled effectively. Later, the legislature found that a woman must be protected not only from physical aggressions made in the course of outraging her modesty, but she should also be shielded from various other acts which do not involve even a touch. The legislature was quite aware that a woman 's modesty can be insulted or outraged in various ways. A mere word, a wink, a touch or even a look would suffice to insult the modesty of a woman. Physical advances may not be necessary in all cases. Everything depends on the intention of the mischief maker and the manner in which he conveys his intentions. It is evident that the legislature intended that any aggression into a woman's modesty whether by any word, deed, touch or look need be curbed and deterred. That is why even a verbal attack on a woman , a gesture and other acts stated in Section 509 IPC were brought under the said Section. It is clear from a reading of Section 509 IPC that by introducing the said provision, legislature intended that any sort of aggression into a woman 's modesty whether by any word, deed or act should be deterred, as evident from the title to the section itself. Thus, the acts which are done intending to insult the modesty of a woman which may not necessarily involve even any physical advances are also brought within the sweep of a separate FIR No. 14/2023 State Vs. Harender Kumar page 7 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 05:00:20 -0700 provision viz., Section 509 IPC. ( Reliance placed upon the case of M.M. Haries v. State of Kerala, (Kerala) 2005 Cri.L.J. 3314 ).
16. It was also held by the Hon'ble Apex Court in Rupen Deol Bajaj v. KPS Gill (AIR 1996 SC 309) that the ultimate test for ascertaining whether modesty has been outraged, is the action of the offender such as could be perceived one which is capable of shocking the sense of decency of a woman.
17. The provisions of Section 509 IPC speaks of insult to the modesty of the women by various means including utterance of words done with intention to insult the modesty of a woman the intention of the accused is very important. It must be proved that the accused intended to insult the modesty of a woman, especially since the word 'intention' is specifically mentioned in the section. Intention and knowledge are of course states of mind. They are nonetheless facts which can be proved. They cannot be proved by direct evidence. They have to be inferred from the circumstances of each case. Such an inference, one way or the other, can only be made if a reasonable man would, on the facts of the case, make it. The question in each case must, in my opinion, be- will a reasonable man think that the act was done with the intention of outraging the modesty of the woman or with the knowledge that it was likely to do so? The test of the insult of modesty must, therefore, be whether a reasonable man will think that FIR No. 14/2023 State Vs. Harender Kumar page 8 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 05:00:28 -0700 the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman. The expression "insult her modesty" must be read with the words "intending to or knowing it to be likely that he will". So read, it would appear that though the modesty to be considered is of the woman concerned, the word "her"was not used to indicate her reaction.
18. Hence, in order to bring home the guilt under section 509 IPC, prosecution is under obligation to prove two things, first that the accused had uttered any words, made any sound or gesture, or exhibited any object and second that he did so intending to insult the modesty of any woman.
19. In the case at hand, the complainant/PW1 clearly stated in her evidence that accused called her randi, veshya, and also said Tu Dhandha karti hai. If read all together and in the light of the above position of law then the words used by the accused indicate an act done with the intention or knowledge that it was likely to outrage the woman's modesty.
20. The complainant/PW1 has supported the case of the prosecution FIR No. 14/2023 State Vs. Harender Kumar page 9 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 05:00:34 -0700 in all material particulars. The complainant (PW1) stood the test of cross examination. During cross examination, the facts of previous acquaintance of the complainant and her family with the accused came on record. As Ld APP has rightly argued, the fact of their acquaintance does not make the version of the complainant false or unbelievable. No material inconsistencies had been seen in the testimony of the complainant. Her evidence turned out to be totally credible and trustworthy.
21. Further, the version of the complainant has been duly corroborated by the other prosecution witnesses PW3 and PW4. These are the eye witnesses of the incident. PW3 has also deposed that the accused was using filthy language for the lady and called her a prostitute. PW4 has further corroborated the version of PW1 and of PW3 as he deposed that accused was abusing the complainant and misbehaving with her. The prosecution has proved the presence of PW3 at the spot by producing the DD entry Ex PW2C. As PW3 and PW4 are police officials, I see no reason for their false deposition against the accused. Thus, the testimonies of PW1, PW3 and PW4 together easily prove the incident in question.
22. The accused also failed to prove that the present complaint is motivated or he has been falsely implicated in the present case. In fact, in his statement u/s 313 CrPC the accused admitted that the FIR No. 14/2023 State Vs. Harender Kumar page 10 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
complainant was his neighbour and there was an altercation regarding loan taken by the complainant from her and her failure to return it back. He thus, did not deny his present the spot and only gave a different version of the incident. His only defence is that he has been falsely implicated due to the above mentioned loan. However, the accused has not proved his this defence. Only suggestion on these lines was put to the complainant during her cross examination which she denied. The burden to prove his defence of false implication then shifted was upon the accused which he failed to discharge. The accused did not examine any witness in his defence despite opportunity. Therefore, the defence of the accused taken by him in his examination u/s 313/281 CrPC is not believable.
23. In the present case, I find no material or vital inconsistencies in the statement of PW1. The testimony of complainant in this case inspires confidence. She is a wholly reliable witness. Her evidence deserves to be given due weightage due to its inherent consistency at different stages. She sticked to her allegations throughout the case, she named the accused and identified him in court. She has been duly cross- examined on behalf of accused. There is an inherent consistency in the evidence of the complainant. She has given a consistent account of the incident and has deposed everything clearly about the time of the incident, sequence of circumstances in which incident happened and the manner and words used by the accused.
FIR No. 14/2023 State Vs. Harender Kumar page 11 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2023.07.10 05:00:55 - 0700
24. The sworn deposition of the complainant is thus, found to be reliable, credit worthy and truthful. In the present case, there is nothing on record to show that the evidence of the complainant (PW1) is motivated or unreliable.
25. The words "Randi", "vaishya" and "tu dhandha krti hai" as narrated by complainant are certainly obscene. A reasonable man uttering such words towards a woman residing in a respectable locality is expected to have the knowledge that use of such words would insult the modesty of the woman. The words used are quite unambiguous and clearly show the intention of the accused.
26. Therefore, I am of the considered view that the essential ingredients of Section 509 IPC are duly proved by prosecution to bring home the guilt of the accused. Therefore, and accused Harender is convicted for offence punishable under section 509 IPC in the instant case as the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt.
27. Be put up for arguments on point of sentence. Pronounced in open Court on 10.07.2023.
The Judgement contains 13 pages and each page has been FIR No. 14/2023 State Vs. Harender Kumar page 12 of 19 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.07.10 05:01:04 -0700 signed by the undersigned.
Copy of this judgment be given free of cost to accused.
Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2023.07.10 05:01:11 -0700 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 14/2023 State Vs. Harender Kumar page 13 of 19