Delhi District Court
State vs . Kuldeep on 19 October, 2013
1
IN THE COURT OF MS. SHELLY ARORA: METROPOLITAN
MAGISTRATE (MAHILA COURT): SAKET COURTS, NEW DELHI
State Vs. Kuldeep
FIR NO. 178/11
PS Sunlight Colony
Date of Institution of case : 11.04.2012
Date on which case
reserved for judgment : 19.10.2013
Date of judgment : 19.10.2013
JUDGMENT U/S 355 Cr. P.C .
a)Date of offence : 22.05.2011
b)Offence complained of : 509 IPC
c)Name of accused, his parentage : Kuldeep
S/o Sh. Khacheru
R/o 506, Sunlight Colony First,
New Delhi110014.
d)Plea of accused : Pleaded not guilty.
e)Final Order : Acquitted
JUDGMENT:
1. Accused Kuldeep has been sent to face trial on the allegations that he had uttered indecent obscene words and made obscene gestures to wards the complainant Ms. Neelam and thereby committed an offence FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 1 of 15 pages 2 punishable u/s 509 IPC.
2. Brief facts of the prosecution case are as follows: Complainant Ms. Neelam has alleged that accused often passed obscene comments against her while he used to visit her house to teach her brother about which she complained to her parents. He also allegedly affixed certain posters referring her name outside her house to malign her reputation about which she filed a complaint, on the basis of which FIR was reg istered. Statement of witnesses were recorded. Accused was appre hended and lateron released on police bail. After conclusion of the investigation, charge sheet in the matter was prepared and filed in the court by the IO upon which cognizance of the offence was taken by the court.
3. Notice of substance of accusation for offence punishable u/s 509 IPC was served upon the accused person vide order dated 13.08.2012 passed by this Court which was explained to the accused person in vernacular to which he pleaded not guilty and claim trial. Matter was then listed for Prosecution Evidence. Prosecution has produced four witnesses and seven witnesses were produced by Defence Evidence.
4. PW1 is Ms. Neelam who deposed that accused Kuldeep used to give tuition to her brother Mohit at her house and used to often pass co FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 2 of 15 pages 3 ments upon her. The comments as deposed about are reproduced as under: "mein yahan se ja raha hun".
"Ghar chhod dunga."
"mujhe tumse milna hai, mujhe aate jaate rok tok karta tha."
"arey tumhara fone band kaise hai."
"arey yaar tun toh phone nahi kata"
"shadi karne ke liya peeche padta tha"
about which she informed her parents about the same and she was reprimanded by her parents and tuition classes of her brother were called off. She further deposed that accused had affixed obscene posters qua which she was compelled to make a complaint to the po lice, vide her statement Ex.PW1/A. She further deposed that another day, accused also started roaming around her while he was standing with her motorcycle and she identified his writing in the posters and photographs of these posters as Mark A, B and C. In cross examina tion by Ld. Counsel for the accused, she stated that accused used to teach Maths and Accounts to her brother. She further deposed that ac cused used to pass comments upon her as and when he saw her and even in the presence of her mother. She declined the suggestion that she has not seen accused affixing any poster outside her house. She further clarified that she saw her affixing a poster on the first day and then lateron he started writing on the walls itself. She declined the FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 3 of 15 pages 4 suggestion that she had familiarity with the accused for about 1& ½ years prior to the registration of the FIR, however voluntarily stated that she communicated to accused that she did not have any relation with him. She further declined the suggestion that accused used to visit her house at her instance and they have photographs together and also visited at several places together. She further declined the suggestion that her relations with the accused was not acceptable to her parents and for this reason the accused was falsely implicated at the instance of her parents while the posters were affixed by her par ents itself. She further declined the suggestion that she was in love with accused person and wanted to marry him but her parents never agreed to the same being intercaste and that accused never was offer ing tuition classes to her brother.
5. PW2 is HC Avdhesh Kumar who proved the copy of FIR Ex. PW2/A and endorsement of rukka as Ex.PW2/B. He was not put to cross ex amination by Ld. Counsel for accused despite opportunity.
6. PW3 is Ct. Devender who had brought the rukka and FIR at the spot and later witnessed the arrest of the accused, putting his signatures on the arrest memo and the personal search memo. In cross examina tion by Ld. Counsel for the accused, he stated that the writing was there on the walls near the staircase outside the house of the com FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 4 of 15 pages 5 plainant.
7. PW4 is SI Ganga Prakash who proved his endorsement upon the com plaint of Ms. Neelam as Ex.PW4/A. Site Plan is Ex.PW4/B. He de posed to have arrested accused vide Arrest Memo Ex.PW3/A and his Personal Search Memo as Ex.PW3/B. He also identified the pho tographs taken from digital camera and the print outs. In cross exami nation by Ld. Counsel for the accused, he stated that he himself had photographed the posters. He further stated that the call made by ac cused was about quarrel but on the spot any such quarrel was not found and hence the complaint was closed. He further stated that the posters were affixed on the walls which were photographed by him and the writing work was near the staircase at the house of the com plainant.
8. Prosecution evidence was concluded.
9. Incriminating evidence appearing against the accused person was put to him in his statement recorded u/s 313 CrPC in which he stated that he and the complainant Neelam were in love with each other for about 1 ½ years since 03.09.2009 and used to often meet each other and wanted to marry each other. He further stated that he used to teach commerce subjects to other students and there was no occasion FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 5 of 15 pages 6 for him to teach her brother Mohit who was a student of BCA and as such he further pointed out that they were at visiting terms with each other but the parents of complainant were not interested in marrying with him but to some one else and that when she briefed his name for marriage to her parents which was not acceptable to her parents, both belonging to different castes. He further pointed out that the gifts which were given to her by him were returned. He was warned by her parents never to meet her and never to visit their place and that she was beaten up by her parents and was sent to her maternal grand mother's place and thus he had no contact with her at that point of time. He further pointed out that he had tried to persuade the parents of the complainant for considering him as a prospective match for their daughter on the insistence of complainant herself who had con tacted me by her mobile from the house of her grandmother but her parents did not agree. He further pointed out that all the writing on the walls was not in his handwriting and as such he was falsely impli cated at the instance of father of the girl. He further stated that uncle of Babloo of Neelam had come to his place on 22.05.2011 with a hockey stick alongwith another person in a inebriated state to hit him after which he had made a call to the police. He further stated that the present complaint was filed by Neelam under pressure of her par ents. He also pointed out that brothers of Neelam alongwith various other gundas in three vehicles had come to his place looking for him FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 6 of 15 pages 7 to teach a lesson but could not find him there and thus they ended up filing this case. He also stated that all the writing samples which were produced by IO were not referred for expert opinion as both the writ ings (writing on the wall and his handwriting) were apparently differ ent. He further stated that father of the complainant insisted the com plainant to lodge the FIR as he wanted to marry her with another boy. He opted to lead Defence Evidence.
10.DW1 is Ms. Hema who deposed that he had seen accused with Nee lam in the market and as such she observed accused talking to some one on mobile about which she enquired from him and he responded that he was talking with Neelam on the mobile and later she came to know that accused was beatenup by several people and that a case has been registered against the accused. She also stated that she had met Neelam at India Gate with accused Kuldeep on one of the occa sion. In cross examination by Ld. APP for the State she declined the suggestion that she never visited India Gate at any point of time and that she had gone to meet with Neelam. She further stated that she was not present while accused had taken the photographs with Nee lam.
11.DW2 is Sh. M.N. Vijayan, Nodal Officer who deposed that data of connection number 9250352505 and 9250333948 for the period of FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 7 of 15 pages 8 20092011 had been automatically lapsed from the system according to the guidelines of Department of Telecom Licence Agreement and thus the summoned CDR could not be submitted. He was not put to cross examination by counsel for accused despite opportunity.
12.DW3 is Sh. Pawan Singh, Nodal Officer who deposed that data of connection number 9718770088 for the period of 20092011 had been automatically lapsed from the system according to the guide lines of Department of Telecom Licence Agreement and thus the sum moned CDR could not be submitted. He was not put to cross examina tion by counsel for accused despite opportunity.
13.DW4 is Smt. Seema Rani who deposed that she is a social worker by profession and as such acquainted with most of the locality persons including Neelam submitting that she and the family of accused re side in the same house on different floors. She further deposed that mother of Neelam used to often visit the house of accused Kuldeep. She further deposed that accused had let her speak with Neelam on mobile phone who stated to her that she was in love with Kuldeep and was ready to marry him. She further deposed that her family members had come to her place to beat Kuldeep and she was told about it by her daughter as she herself was not present at the home. Kuldeep had given a call to the police officials but they did not lodge FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 8 of 15 pages 9 the complaint against the family members of Neelam. In cross exami nation by Ld APP she stated that she has met Neelam only once.
14.DW5 is Lokesh Kumar who also deposed that he had communication with Neelam on the mobile of Kuldeep and he alongwith Kuldeep and other friends had played Holi with Neelam at her ITI Institute just two days prior to the occasion of Holi asserting that there was an affair between Kuldeep and Neelam and they often used to speak with each other and meet each other. In cross examination by Ld. APP he stated he had no conversation with Neelam face to face and he was ac quainted with Neelam only through Kuldeep.
15. DW6 is Karamveer who deposed that he had seen Kuldeep with Nee lam together on two occasions in a cafeteria Shri Ram Sweets at Bhagwan Nagarl and the relations between them became strained when brother of Neelam alongwith some other friends had come to beat him to teach him a lesson and prior to that incident there were good relations between Kuldeep and Neelam and he has seen both of them talking to each other on the phone and in the park as well. He further stated that Neelam have never made any complaint about the conduct of accused prior to this incident. He also stated that around 810 armed people had come on different vehicles to beat Kuldeep and that he was standing at this shop which falls on the way to the FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 9 of 15 pages 10 house of Kuldeep who passed abusing Kuldeep very loudly all along but as he was not found at his place that those people returned back. In cross examination by Ld. APP, he admitted that Kuldeep used to vis it the house of Neelam to give tuitions to her brother. He also stated that he saw them together only once.
16.DW7 is Kuldeep himself who deposed that there was a love affair be tween himself and complainant Neelam and as such being residents of the same locality, both the family members were on visiting terms with each other. He further deposed that there used to be telephonic conversation between them and as such he came to know that her parents had beaten her up on the pretext of their relationship and he further clarified that he never given tuitions to her brother. He also further clarified that he never wrote on the walls of the house of com plainant asserting that those writings on the walls were not in his handwriting. He further deposed that uncle of complainant alongwith another person had come to his house on 22.05.2011 and had beaten him with a hockey stick for which a call was made to the police by him but his complaint was not registered rather Neelam lodged a complaint him under the pressure of her parents. He further deposed that he never committed any act as alleged by the complainant as he never wanted to defame her. He also deposed that he had visited sev eral places in Delhi alongwith her and also clicked photographs with FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 10 of 15 pages 11 her. She often used to sent SMS to him at his mobile. He placed those photographs on record which are Ex.DW7/DA to Ex.DW7/DC and has also placed on record the transcript CD of SMS of conversation be tween them as Ex.DW7/DD. In cross examination by Ld. APP he ad mitted that he used to visit the house of complainant and as such any incident alleged by the complainant never took place. He further stat ed that he never spoke with complainant subsequent to May 2011 and as such that was the reason that he could not tell as to who af fixed the posters on the wall of the complainant. He also admitted that he wanted to marry the complainant and that she also wanted to marry with him. He further admitted that he came to know about par ents of complainant searching for a groom for her. He declined the suggestion that he wanted to defame the complainant by pasting such posters so as to stop her parents from marrying complainant with an other person. Defence Evidence was closed vide separate statement of the accused.
17.Final arguments advanced. Ld. APP contended that PW1 Neelam who is complainant in this case has duly proved the prosecution case supported by various documents proved by other witnesses as pre pared during the investigation of the case. Ld. Defence Counsel, on the other hand, contended that complainant Neelam ended up filing this case only under pressure from her parents and as such both the FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 11 of 15 pages 12 complainant and accused wanted to marry each other which was not acceptable to the parents of the complainant Neelam denying all the allegations against the accused in totality pleading for acquittal of the accused in this case.
18. I have perused the case record carefully.
19.PW1 Neelam who is the complainant is the most significant witness in this case who deposed that accused often used to pass comments upon her and he did so many times in the presence of her mother as well and sometimes in the street also in front of other people. Even mother of complainant Neelam has not been produced in the witness box to substantiate this point that he ever passed comments on com plainant. The brother of complainant Neelam has also not been pro duced in the witness box to underline that accused used to give tu itions to him and thus used to visit their house everyday or that his classes were called off when the mother of the complainant Neelam warned him of his conduct towards Neelam. The other allegations made against the accused is about his having affixed obscene posters referring the name of complainant Neelam outside her house or hav ing written indecent words referring her name outside the walls of her house and elsewhere in the locality. There is no witness produced on record by the prosecution who saw accused so affixing the posters FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 12 of 15 pages 13 or so writing on the wall.
20. PW1 Neelam in her cross examination asserted that she once saw accused affixing the posters but it is very strange that he never made any complaint about that and indeed wanted for the accused going this path in order to defame her. Very strangely, the IO did not refer the writings for any expert opinion for comparison between the hand writing of accused and writing found on the walls outside the house of the complainant.
21.The accused has denied having indulged into any such like activities against the complainant asserting that he wanted to marry her and therefore can never have thought of malign the image of such person. He has produced various defence witnesses to underline that he had an affair with complainant Neelam. He has placed photographs on record to substantiate what he stated and he also placed the tran script of the SMS conversation between herself and the lady qua his assertion. He has also produced other witnesses including his friends and his relatives to underline and assert that he had a relationship with the complainant Neelam. Complainant Neelam has denied hav ing any such relationship with accused. But there is no explanation on record as to why the complainant being daughter of a police official herself chose to be quiet about a person commenting upon her in her FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 13 of 15 pages 14 house itself in the presence of Mother and even her brother who is a college student. This conduct of complainant gives weight to the as sertion made by the accused in addition to the photographs and the SMS transcript placed by him on record to support his version which impinges upon credibility of the complainant herself.
22.It is settled that the testimony of prosecution witnesses and defence witnesses are to be legally treated at the same footing and as such ac cused himself has appeared in the witness box and has faced the test of cross examination by Ld. APP. The version of the defence carries weight and substance in itself and cannot be outrightly rejected or discarded considering the circumstances put forth by the prosecution witnesses in their testimony. The Defence version has been able to carve a niche in the prosecution version creating a sphere of doubt.
23.Prosecution is under a bounden liability of proving each allegation against the accused beyond reasonable doubt. Any independent wit ness to substantiate the allegation of accused passing lewed com ments against the complainant has not been proved in the witness box. Even the mother and brother of the complainant who otherwise were the only witnesses have even not been produced in the witness box. There is no expert opinion brought on record qua comparison of handwriting of accused with that of the writings on the walls. Any FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 14 of 15 pages 15 such handwriting samples taken by the IO has not even been placed on record for such comparison by the Court itself. There is no witness produced in the witness box who saw accused affixing those posters or writing on the wall. There was no question or occasion for com plainant Neelam to have kept mum even while she saw accused past ing a poster outside her house. There is credible evidence brought on record by the accused about his relationship with the complainant Neelam which however has been denied by the complainant. There appears a distinct possibility as an explanation to the conduct of the complainant which otherwise appears very contradictory through the only behaviour of a person facing any such like situation. There are factual, legal and technical loopholes in the prosecution version fur ther dented by the defence story thus culpability against the accused cannot be established on the basis of the prosecution version which has been brought forth. Accused Kuldeep is thus hereby acquitted of the offence punishable u/s 509 IPC. Ordered accordingly.
Announced in the open court today (SHELLY ARORA)
on 19.10.2013 M.M./Mahila Court/SED
Saket/N.D./19.10.2013
FIR No.178/11 (P.S. Sunlight Colony) State Vs Kuldeep Page 15 of 15 pages