Delhi District Court
Abhimanyu Manjhi vs The State (Govt. Of Nct Of Delhi) on 2 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 170 of 2018
CNR NO. DLSE01-002670-2018
IN THE MATTER OF:
Abhimanyu Manjhi
S/o Sh. Kanti Lal Manjhi
R/o H.No. 4/19, Pocket-7,
Janta Flats, Sector-82, Noida, UP.
.......Appellant
Versus
The State (Govt. of NCT of Delhi)
........Respondent
Instituted on : 31.03.2018
Reserved on : Not reserved
Pronounced on : 02.05.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 17.02.2018 and order on sentence dated 26.02.2018, passed by the learned Metropolitan Magistrate, South East District, Saket Courts, New Delhi in First Information Report CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 1 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:09:50 +0530 (FIR) No.434/2014, Police Station Sarita Vihar, under Section 354D IPC, titled as 'State vs. Abhimanyu Manjhi', whereby appellant was convicted for offence under section 509 IPC. Further, vide order on sentence dated 26.02.2018, the appellant was sentenced to undergo simple imprisonment for a period of one (01) year and to pay a fine of Rs. 5,000/-. In default of payment of fine, appellant was directed to further undergo simple imprisonment for three (03) months.
2. Succinctly stated, the case of prosecution is that on 11.06.2014 at about 17.09 PM, appellant had called the call centre (wherein complainant was working as Deputy Manager) to know the details of their products and being not satisfied with their response, appellant had sent an email to their company executives. On receipt of the email, one of the executives from Nodal Office called the appellant, wherein he used unparliamentary language. Thereafter, complainant who was working in the company called the appellant to understand his grievance. It is the case of prosecution that in the conversation with complainant, the appellant was very abusive and he used filthy language which was intended to insult her modesty. As per complainant, the appellant/accused kept on calling her on different dates and finding his behaviour to be abusive, his number was blocked through IVR calling. On these allegations, FIR was registered u/s 354D IPC and the investigation was carried out.
3. After conclusion of investigation, chargesheet was filed against the appellant for offence u/s 354D IPC and after completion of CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 2 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:09:58 +0530 necessary formalities, a formal charge for commission of offence under section 354D IPC was framed against him, to which he pleaded not guilty and claimed trial.
4. Prosecution to prove its case examined 05 witnesses before Ld. Trial Court.
5. PW1 Ct. Puran Singh is a witness to the investigation, who deposed that on 16.07.2014, he alongwith SI Mool Chand went to Vodafone Company where Senior Manager Sh. B. Aurtsivan met them who handed over CD of recording of mobile phone of complainant to SI Mool Chand which was seized vide seizure memo Mark A.
6. PW2 Smt. Sushma Khanna is the complainant and star witness of prosecution. She deposed that on 11.06.2014, she was working as a Deputy Manager in Vodafone Company; that on that day, she was on duty from 9.00 AM to 7.00 PM; that she was authorized by company to take care of resolution of customer complaints; that pursuant to same, she had to speak to the customers and understand their concerns and resolve the same; that during that process, she had called appellant to understand his concern; that appellant abused her on call. She further deposed that appellant had called their call centre to know the details of their product; that on 11.06.2014 at about 5.29 pm, their call centre executive had spoken to the appellant; that appellant was not satisfied with their response and sent an email to their company executive which was forwarded to her; that she made a CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 3 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:10:06 +0530 call to appellant on the mobile No. 98XXXXXX31 to understand his complaint during which latter was completely abusive and used filthy language intended to insult her modesty; that she was shocked and terribly disturbed to hear those words and disconnected the call informing the appellant about his language; that appellant used to send email to their company and in every email he used abusive language; that she made a typed complaint Ex. PW-2/A to SHO PS Sarita Vihar and legal team of their office handed over complete CDR, telephonic conversation and email to police official.
6A. On being cross examined by Ld. LAC, she denied the suggestion that appellant did not call on her official mobile No. 98XXXXXX27. She further denied the suggestion that appellant complained against her to her senior officer due to which she has falsely implicated the appellant in this case. She denied the suggestion that firstly she abused the appellant or that Vodafone agent falsely assured the appellant that he will attend the appellant after 48 hours. She further denied the suggestion that Vodafone office blocked the customers number if they misbehave. She has voluntarily deposed that appellant was extremely abusive and passed derogatory remarks against every female call centre employee due to which his mobile number was blocked at IVR. She denied the suggestion that Vodafone employee usually called the customer while changing their name and identity. She admitted that when the customer called in their office they cannot see the image of the customer during the call duration.
CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 4 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.02
13:10:13 +0530
She denied the suggestion that appellant had not abused her in a filthy language. She further denied the suggestion that it was she who had abused the appellant.
7. PW3 Sh. Arutsivan, Sr. Manager (Legal), Vodafone Services had verified the notice u/s 91 CrPC (Ex. PW-3/A) and he deposed that he had handed over the CD of conversation between appellant/accused and complainant to the IO which was seized vide seizure memo PW-3/B.
8. PW4 Sh. Israr Babu, Alternate Nodal Officer, Vodafone proved original Customer Application Form of mobile No. 98XXXXXX31 in the name of appellant/accused Ex. PW-4/A and the CDR of aforesaid mobile phone for the period 11.06.2014 is Ex. PW- 4/B. He has also proved the CDR of aforesaid mobile phone from the period 18.06.2014 to 01.07.2014 as Ex. 4/D (running into 7 pages).
9. PW5 SI Mool Chand is the investigating officer and he deposed about the investigation conducted by him. He deposed that on 19.06.2014 while he was on general duty in PS Sarita Vihar, he received one complaint through Reader and conducted the inquiry; that on 07.07.2014, statement of complainant was got recorded u/s 164 CrPC before Ld. Magistrate; that after conducting inquiry on 23.06.2014, he endorsed the said complaint and prepared the tehrir Ex. PW-5/A; that thereafter he sent the notice u/s 91 CrPC (Ex. PW-5/B) to the Vodafone office for taking the CDR of mobile No. 9811418431 CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 5 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:10:25 +0530 for the period of 18.06.2014 to 01.07.2014, CAF and other related documents; that he also sent another notice u/s 91 CrPC (Ex. PW-5/C) for the period of 11.06.2014 to 15.07.2014; that thereafter he collected all the documents from the Nodal Officer already Ex. PW-4/A to Ex. PW-4/D; that he also collected one CD from Nodal Officer Vodafone and prepared seizure memo of same as Mark A;
10. Record transpires that during course of trial, appellant had admitted certain documents i.e. copy of FIR Ex. A1, rukka Ex. A2, signature on arrest memo Ex. A3 and statement of complainant u/s 164 CrPC by Ld. MM as Ex. A4 in his statement recorded under section 294 CrPC. Therefore, said documents can be read into evidence without formal proof of same.
11. After, conclusion of prosecution evidence, statement of appellant was recorded U/s 313 CrPC, wherein all the incriminating evidence was put to him. Appellant denied the same as incorrect and claimed to be falsely implicated. As per appellant, he had made a complaint regarding his number to Vodafone but the concerned manager namely Deepak Verma had abused him on the phone; that he gave a written complaint to Vodafone for which the complainant had called him; that he never abused the complainant.
12. Appellant did not lead any evidence in his favour.
13. Ld. Trial Court vide impugned judgment inter alia CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 6 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:10:33 +0530 observed that the necessary ingredient of offence u/s 354D IPC are not made out in the instant case and acquitted the appellant for the said offence. However, while taking recourse to provisions of section 222 CrPC, Ld. Trial Court went on to convict the appellant for offence u/s 509 IPC and sentenced him observing that offence u/s 509 IPC is a minor offence vis a vis offence u/s 354D IPC as same provides for a lesser punishment.
14. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on the following grounds:-
(i) That the impugned order passed by Ld. Magistrate is bad in the eyes of law and based on surmises and conjectures;
(ii) That Ld. Magistrate failed to appreciate that the ingredients of section 509 IPC are not made out in the instant case;
(iii) That Ld. Magistrate erred in convicting the appellant by relying upon the statement of complainant recorded u/s 164 CrPC;
(iv) That Ld. Magistrate failed to consider the material contradictions in the statement of prosecution witnesses;
(v) That Ld. Magistrate failed to consider the CDR of mobile No. 98XXXXXX31 and 98XXXXXX47 wherein no call was made between alleged numbers;
(vi) That Ld. Magistrate failed to appreciate the fact that there is nothing on record to show the authorship of CD;
(vii) That Ld. Magistrate failed to appreciate the fact that IO never CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 7 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:10:41 +0530 bothered to send the CD and voice sample of accused and complainant for identification/ verification;
(viii) That benefit of doubt always goes in favour of accused as until the contrary is proved beyond any reasonable doubt.
15. Ld. Counsel for appellant argued on the lines of grounds taken in instant appeal. It was further argued that appellant could not have been convicted for offence u/s 509 IPC while resorting to provisions of section 222 (2) CrPC. On the strength of said arguments, Ld. Counsel seeks acquittal of appellant.
16. Per contra, Learned Addl. Public Prosecutor for State/respondent has opposed the appeal, stating that prosecution has proved its case against the appellant beyond all reasonable doubts and learned Trial Court has rightly convicted and sentenced him.
17. I have heard rival contentions and perused the record.
18. The appellant in the instant case was admittedly facing trial for offence u/s 354D IPC. The trial court record reveals that not only the FIR and the chargesheet was filed against the appellant for said offence but also he was charged for offence of stalking u/s 354D IPC by Ld. Trial Court. I am in agreement with Ld. Trial Court to the extent that the necessary ingredient of offence u/s 354D IPC are not fulfilled in the instant case as from the facts alleged or proved, it cannot be said that the appellant was stalking the complainant in any manner. Rather the case of prosecution is that the appellant had CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 8 of 10 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:10:49 +0530 abused the prosecutrix in very filthy language and therefore in my considered view, Ld. Trial Court fell into grave error while charging the appellant for offence u/s 354D IPC instead of section 509 IPC.
19. Ld. Trial Court, vide impugned order, convicted the appellant for offence u/s 509 IPC while resorting to provisions of section 222 (2) CrPC while observing that the said offence is minor in nature vis a vis offence u/s 354D IPC. However, in my considered view, the view taken by Ld. Trial Court cannot be sustained in the eyes of law as the offence u/s 509 IPC cannot considered to be a minor offence vis a vis offence u/s 354D IPC. In my view, both the said offences are not of same 'species' and are rather covered under different Chapters of Indian Penal Code. The offence u/s 354D IPC is covered under Chapter XVI under the head 'OF OFFENCES AFFECTING THE HUMAN BODY' and under sub head 'OF CRIMINAL FORCE AND ASSAULT', whereas offence u/s 509 IPC is covered under Chapter XXII of Indian Penal Code under head 'OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE'.
20. Since both the said offences are of different nature under the statutory scheme, therefore it cannot be said that the offence u/s 509 IPC is a minor offence vis a vis offence u/s 354D IPC only because the former provides for a lesser punishment vis a vis latter and therefore the view taken by Ld. Trial Court on this count is not permissible in law.
CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 9 of 10
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.02
13:10:55 +0530
21. In the facts and circumstances of the present case, I am of the considered view that since the appellant was not facing trial for offence u/s 509 IPC having never been formally charged for said offence, therefore he could not have been convicted for said offence by Ld. Trial Court.
22. Consequently, the impugned judgment and order on sentence emanating therefrom, cannot be sustained in the eyes of law and same are liable to be set-aside. To sum up, the impugned judgment dated 17.02.2018 and order on sentence dated 26.02.2018 stand set-aside. Appellant Abhimanyu Manjhi stands acquitted in the instant case. He is directed to furnish personal bond/ surety in terms of section 437A CrPC before Ld. Trial Court.
23. TCR be sent back along with copy of this judgment to Ld. Trial Court. Appeal file be consigned to record room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.02 13:11:02 +0530 Announced in the open (ANUJ AGRAWAL) court on 2nd May, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 170/2018 Abhimanyu Manjhi vs. State Page No. 10 of 10