Indian Kanoon - Search engine for Indian Law

Delhi District Court

Metropolitan Magistrate Mahila Court: ... vs Rinku Anand on 30 September, 2009

                                                              Page 1 of 14




                IN THE COURT OF Ms. VEENA RANI
     METROPOLITAN MAGISTRATE MAHILA COURT: SOUTH DELHI
IN RE:    STATE            V.    RINKU ANAND
                                                     FIR No. 899 / 98
                                          P.S. : DEFENSE COLONY
                                             U/S : S. 506 /  I.P.C.

                               THE JUDGMENT

   1.

 DATE OF INSTITUTION OF CASE                  :31-05-1999


   2. SERIAL NUMBER OF THE CASE                    :570/2


   3. DATE OF COMMISSION OF OFFENCE                : 21-09-1998


   4. NAME OF THE COMPLAINANT                      : Ms. Heemakshi

Bakshi D/o Sh. Subash Bakshi R/o D-177, Man sarover Garden, New Delhi.

5. NAME OF THE ACCUSED & ADDRESS : Rinku Anand S/o Sh. Darshan Kumar Anand R/o E-61, Amar Colony, Lajpat Nagar-IV, New Delhi.

6. OFFENCE COMPLAINED OF : U/S 506/509 IPC

7. THE PLEA OF THE ACCUSEDs : Pleaded not guilty.

8. DATE OF RESERVE OF JUDGMENT : 8-9-2009

9. THE FINAL JUDGMENT : Accused acquitted.

10. THE DATE OF FINAL JUDGMENT: 30-09-2009 BRIEF REASONS FOR DECISION OF CASE:

1. The present accused person Rinku Anand s/o Sh. D.K. Anand was brought before this court to face the trial u/s 506 & 509 IPC. The charges were framed against him on the basis of the incident dated 21.09.1998 at about 6:20 P.M. when the said accused is alleged to have used filthy language against the complainant-lady. Such words were heard by the complainant-lady. The accused is also alleged to have threatened the complainant-lady with life. Accordingly the charges were framed against the said accused on 03.06.2004 u/s 506 & 509 IPC. The accused pleaded not guilty and claimed trial.

2. In order to prove its case the prosecution has relied upon few witnesses including the complainant-lady. The accused in his statement u/s 313 Cr.P.C. has denied the allegations and that he has been falsely implicated. The accused chose not to lead any D.E..

3. PW-1 : H.C Kartar Singh has been examined as PW-1 and has stated that on 21.09.1998 he was posted at the P.S. defense Colony and had recorded the FIR.

The copy of the said FIR is Ex.PW-1/A.

4. PW-2: Sh. Vaibhav Kathuria has been examined as PW-2 and has stated during his examination-in-chief that he has no knowledge of the case and that he Page 3 of 14 was not present at the time of the incidence. The learned PP sought permission to cross-examine as the said witness had resiled from his previous statement. The permission was granted. The said witness admitted during his cross that his statement was not recorded by the police. The said witness also stated that in his presence the alleged incident had not taken place. The said PW-2 denied to have ever known any Himakshi Bakshi.

5. PW-3 ::: The complainant-lady Ms. Himakshi Bakshi has been examined as PW-3 and has stated that on 21.09.1998 about 6:20 P.M. she was boarding her bus from the Moolchand Bus Stop. The accused had been following her for the law four days. The accused had told her that he was from the CBI and that someone wanted to kill her. The accused said he wanted to help but the complainant-lady told him that she was not interested in talking to him. On the day of the incidence the accused had stopped the complainant from boarding the bus and threatened to kill her. The accused was apprehended by two of the lady's two friends Vaibhav Kathuria and Anand who took to the accused to the police station. During the cross the complainant-lady has stated that the accused had used the indecent words which she did not want to repeat in the court.

6. PW-4: Constable Gautam Singh has been examined as PW-4 and has deposed that on 21.09.1998 he was posted at the PS Defense Colony and that the complainant had come. The accused was produced by the complainant and he Page 4 of 14 was arrested vide arrest memo Ex.PW-4 / A. The disclosure statement was also recorded and the same is Ex. PW-4 / B.

7. PW-5 : S.I. Rajesh was the I.O. of the case and has been examined as PW-5. He has stated that the complainant had given the compliant to him which was endorsed by him and handed over to the DO for the registration of the FIR. The accused was arrested vide arrest memo Ex.PW-4 / A. The disclosure statement was also recorded and the same is Ex. PW-4 / B. The site plan was prepared by the said PW-5 .

8. I have deliberated on the matter have found that a disclosure statement was recorded by the police. The question is whether disclosure statement is admissible as per law. According to S.24 of the Indian Evidence Act :

Confession by inducement, threat or promise when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

Confession is a specific form of testimony, involving oneself, and is used as a form of proof in judicial matters. The value of confessions, however, are discussed, and law generally request cross-checking them with objective facts and others forms of evidence (exhibits, testimonies from witnesses, etc.) in order to evaluate their truth value. Confessions were first developed in the Roman Catholic Church under the Sacrament of Penance, where the confession of a sin is considered to be enough to absolve oneself. This aspect concerning moral guilt has been carried on in various legislative codes, in which a criminal is considered worse if he does not confess to his crimes.

10. The expression confession is not defined in the Evidence Act. Confession is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word statement is "act of stating; that which is stated; a formal account, declaration of facts etc." The word statement includes both oral and written statement. Communication to another is not however an essential component to constitute a statement. An accused might have been over-heard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something to himself. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before Supreme Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40 : (1966 Cri LJ 68).

After referring to some passages written by well known authors on the "Law of Evidence" Subba Rao, J. (as he then was) held that "communication is not a Page 6 of 14 necessary ingredient to constitute confession". In paragraph 5 of the judgment, this Court held as follows :

11. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof.

This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession as the case may be.... If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt.1

12. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free " ! Page 7 of 14 man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considering before deciding whether the Court is satisfied that its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed.

13. Confessions may be divided into two classes, i.e., judicial and extra-judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra-judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact, The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.

14. In the present case the contents of the disclosure statement would reveal that the accused would embark the bus along-with the complainant and would talk Page 8 of 14 to her. The disclosure devolves around the contents that that the accused would threat the complainant that if she does not befriend him he would kill her and all that happened while both were boarded in the bus. After saying so the accused used to get down from bus. This continued till the penultimate day of the incidence. On 21.09.1998 when the accused boarded the bus as usual along- with the complainant he was apprehended and taken to the police station.

15. The disclosure statement does not inspire confidence for many reasons. The witness PW-2: Sh. Vaibhav Kathuria has stated during his examination-in-chief that he has no knowledge of the case and that he was not present at the time of the incidence. The said witness admitted during his cross that his statement was not recorded by the police. The said witness also stated that in his presence the alleged incident had not taken place. The said PW-2 denied to have ever known any Himakshi Bakshi. Moreover even if we read the disclosure statement at a glance it will not make the offenses the accused is charged with.

16. As far as the allegations u/s 506 IPC are concerned in order to attract the ingredients of S. 506, I. P. C. the intention of the accused must be to cause alarm to the victim. To constitute an offence under S. 506, I. P. C. it must be shown that the person charged actually threatened another with injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested, with the intention to cause alarm. Threatening is always coupled with a condition which the victim is compelled to meet. The 'fear' so induced by the culprit on Page 9 of 14 the person of the victim operates as the 'threat'. The threat therefore is not a 'lone' entity but a sequence culminating into a compulsion thus leaving the victim with no choice but to comply. Whether or not the victim actually complies, the offense is completed the moment 'alarm' is set. But in order to have the 'threat' completed and the 'alarm' so set the essential link is between the 'fear' and the 'condition' to be met. If the said link is not established a 'threat' remains hollow as the culprit could always say that there was no reason for him threat. In the present case what was the 'alarm' caused to the complainant-lady ? What was she asked to comply with? What fulfillment did the accused expect which could have caused any 'fear' ? The other relevant queries would be : What was required on part of the victim (the complainant-lady herein) in order to have not been 'killed' by the accused ? What was exactly demanded from the complainant- lady so that she could have saved her limbs from being broken? In short what was the interest of the accused? The evidence adduced by the prosecution does not answer to the essential queries. I have dwelled on the concept that 'threat' is an act of coercion wherein a negative consequence is proposed to elicit response. I would like to add that I have touched upon the psychology of 'threat' and that is exactly what the IPC covers. There happens to be no evidence which could bring about the anticipation of any 'real threat' to the complainant-lady and the IPC does not seem to cover 'unreal threats'. The prosecution could not prove their case beyond the 'iota' of doubt.

17. The offence alleged was under Section 509 of Indian Penal Code. Section 509 of IPC reads :-

"S.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 one year, or with fine, or with both."

18. The ingredients of the offence are intention of the accused to insult the modesty of a woman. The insult must be caused either by uttering any word or making any sound or gesture or exhibiting any object intending that such words or sound shall be heard or that the gesture or object shall be heard by such woman or by intruding upon the privacy of such woman. The Crux of the offence is the intention to insult the modesty of a woman. Modesty is not defined in Indian Penal Code.

19. The Hon'ble Kerela High Court considered the question in State of Kerala v. Hamsa (1988 (2) KLT 89) and held that the question of infringing the modesty of a woman would of course depend upon the customs and habits of the people and no particular yardstick of universal application can be made for measuring amplitude of modesty of woman as it may vary from country to country and society to Page 11 of 14 society. The following observations in State of Punjab v. Major Singh (AIR 1967 SC 63) : (1967 Cri LJ 1) was quoted :-

"The test of the outrage of modesty must, therefore, be whether a reasonable man will think that 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."

20. As modesty was not defined in Indian Penal Code Apex Court in Raju Pandurang Mahale v. State of Maharashtra (2004) 4 SCC 371 : 2004 Cri LJ 1441 relied on the dictionary meaning of modesty which reads :-

"14. Webster's Third New International Dictionary of the English language defines modesty as freedom from coarseness, indelicacy or indecency: a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn) the meaning of the word "modesty" is given as "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or Page 12 of 14 sense of shame proceeding from instinctive aversion to impure or coarse suggestions."

21. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is ver relevant but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word "modesty" is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn) defines the word "modesty" in relation to a woman as follows : "Decorous in manner and conduct not forward or lewd; Shamefast' Scrupulously chaste".

22. Modesty is defined as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R. v. James Lloyd?"

23. In Rupan Deol Bajaj v. K. P. S. Gill (1995 (2) KLT 830) : (1996 Cri LJ 381), Apex Court concluded 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 and from the dictionary meaning of 'modesty' and the interpretation given to that word by the Court in State of Punjab v. Major Singh (AIR 1967 SC 63) : (1967 Cri LJ 1) 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".

24. In the present case the complainant has not specified what words were exactly used. The complainant has categorically said during her chief that she cannot repeat the words. I understand that repeating the words loaded with filth is undesirable but the prosecution has to come out with some sort of clarification regarding the 'language' used. All that the police has done is that a statement of disclosure has been obtained and that too is lacking in attributing any culpability to the accused. I have already rejected the disclosure statement in totality. In short, the prosecution has not been able to prove its case.

25. In view and the circumstances of the case the accused i.e. Rinku Anand s/o Sh. Darshan Kumar Anand r/o E-61 Amar Colony, Lajpat Nagar,- IV, New Delhi is acquitted u/s 506 & 509 IPC.

26. The file be consigned to the record room.

Announced in the open court on this 30th day of September, 2009.

( VEENA RANI ) Metropolitan Magistrate : Mahila Court, South.