Delhi District Court
State vs . Devender & Anr on 19 July, 2018
IN THE COURT OF SH. DEEPAK KUMAR-II, MM06 DWARKA
COURTS, NEW DELHI
State vs. Devender & Anr
FIR No. 45/15
PS: Dwarka North
under Section 509/34 IPC
No 432888/16
JUDGMENT
Sl. No. of the case : 432888/16
Date of Commission of offence : 23.05.2015
Name of the complainant : Ms. Babli W/o Late Sh. Ram
Kishan
Name & address of the accused : 1) Devender S/o Late Sh. Ram
Kishan
2) Sombir S/o Sh. Kishan
Offence complained of or proved : Under section 509/34 IPC
Plea of accused & his examination : Pleaded not guilty
Final order : Acquitted
Date of such order : 19.07.2018
Brief statements of the reasons for judgment
1. Briefly stated the facts of the case as alleged by the prosecution and as unfolded from the chargesheet are that on 23.05.2015 at about unspecified time the accused persons in furtherance of their common intention had verbally abused the complainant Ms. Babli State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 1/9 under Section 509/34 IPC No 432888/16 and her daughter Ms. Nitisha, intending to insult their modesty. DD No. 23A was received by the ASI Ramesh Kumar, in pursuance of which he along with Ct. Neeraj went to the place of incident i.e. Dhansa Road near Dankaur School, where the complainant was not found. When they were coming back to police station they found the complainant herein outside the police station and her statement was recorded.
2. On the basis of the complaint/statement, the investigation was carried out by W/ASI Sudesh and accused persons were arrested and later on admitted to court bail. Site plan was prepared and the statements of witnesses were recorded by the IO. Statement of victims were also got recorded under section 164 CrPC. After conclusion of the investigation, charge sheet in the matter was prepared and filed in the Court. Cognizance was taken by the learned predecessor of this court and the accused was summoned. On the appearance of the accused, copy of the chargesheet along with documents annexed with it were supplied to him in compliance of section 207 CrPC. Prima facie charge under section 509/34 IPC was made out against the accused persons which was framed by the learned predecessor of this court, to which they pleaded not guilty and claimed trial. Thereafter, matter was listed for recording of prosecution evidence. Prosecution in support of its case examined five witnesses.
3. PW1/complainant Babli deposed on the lines of her complaint given by her to the police. She also deposed about the exact State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 2/9 under Section 509/34 IPC No 432888/16 abusive language used by the accused herein as "Randi and behan ki lori". The written complaint is Ex.PW1/A, site plan is Ex.PW1/B, her statement recorded under Section 164 CrPC is Ex.PW1/C. She also deposed that she had earlier also registered a case against the accused Devender and that he is her stepson. In his cross examination the witness admitted that she has a property dispute with the accused persons and that she do not remember as to whether the fact which she narrated to the police are the same which she had deposed before the court. She further deposed that she had told the police that they sustained injuries in the incident; due to incident there was a slight damage on the scooty; she had told the police that the accused persons said to me "Randi and behan ki lori"; on being confronted with her statement i.e. Ex.PW1/A the same could not be found therein.
4. PW2 Nitisha majorly deposed on the lines of PW1 and she wrote the abuses hurled by accused persons on a sheet of paper which is Ex.PW2/A. Her statement recorded under Section 164 CrPC is Ex.PW2/B. She admitted that they had property dispute with the accused persons. In her cross examination she deposed that she had told the police that accused Devender had tried to run over his tractor on her scooty; she had told the police about the specific abusive words as mentioned on Ex.PW2/A, on being confronted with her statement Ex.PW2/A the same could not be found therein. She further deposed that she had told Ld. MM about the specific abusive word as mentioned or Ex.PW2/A, on being confronted with her statement under Section 164 State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 3/9 under Section 509/34 IPC No 432888/16 CrPC the same could not be found therein.
5. PW3 Ct. Neeraj deposed about the registration of FIR at his instance by WSI Sudesh. In his cross examination nothing material came on record.
6. PW4 IO/ASI Sudesh majorly deposed about the investigation conducted by her. In her cross examination she deposed that she had not inquired from any public person during the entire investigation.
7. PW5 ASI Ramesh Kumar deposed that he received a DD No. 23A regarding molestation with the girl of the caller at Mata Dankaur School, Dhansa Road, New Delhi. He prepared rukka Ex.PW5/A and handed over the same to Ct. Neeraj for registration of FIR. In his cross examination he deposed that the victim was standing outside the PS and he inquired about the matter.
8. On 07.03.2018, in his statement recorded under Section 294 CrPC, accused persons admitted the genuineness of the copy of FIR, certificate under Section 65B of the Indian Evidence Act and endorsement on rukka as Ex.P/A/1, Ex.P/A/3 and Ex.P/A/2 respectively. Thereafter PE was closed.
9. Statement of accused persons under section 313 CrPC State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 4/9 under Section 509/34 IPC No 432888/16 were recorded in which they denied all the allegations and stated that they are innocent and have been falsely implicated in the present case. Accused Devender further deposed that on the day of incident he came to court no. 513, Dwarka courts, New Delhi for attending a matter and after the hearing he went to his house and that no such incident took place. Accused Sombir further deposed that his house is adjacent to the house of Geeta and she wants to grab it. She had falsely implicated him in the present case and earlier also they have had arguments on the said issue, she is his aunt (chachi) in relation. Thereafter matter was posted for recording of defence evidence but no witness was examined by accused persons in their defence and on their request the defence evidence was closed.
10. Ld. APP for the State has argued that the case of prosecution stands proved as all the prosecution witnesses have supported the prosecution version. On the other hand Ld. Counsel for accused has also argued that the present case has been foisted upon them at the behest of complainant. He further argued that there are contradictions/material improvements in testimony of PWs including complainant.
11. I have heard the final arguments advanced by Ld. APP as well as by Ld. defence counsel and have carefully perused the record.
12. Cardinal principle of criminal law is that the accused is State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 5/9 under Section 509/34 IPC No 432888/16 presumed to be innocent till he is proven guilty, beyond any reasonable doubt. Burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
13. In order to bring home the guilt of the accused for the offence punishable under section 509/34 IPC, the prosecution is required to prove the following facts that:
i) the accused persons in furtherance of their common intention had caused intentional insult to the modesty of a woman;
ii) that insult must be caused by uttering any word or making any sound or gesture, or exhibiting any object intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or
iii) by intruding upon the privacy of such woman.
14. Now, in order to sustain conviction for the offence punishable under section 509/34 IPC, prosecution is required to prove that there must be intentional insult to the modesty of a woman and that insult must be caused by intruding upon the privacy of the woman or by doing such other acts which are mentioned in the section and all such acts must have been done by accused persons in furtherance of their common intention.
15. Let us now appreciate the evidence available on record in the light of aforesaid legal provision. In the Oxford English Dictionary, the State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 6/9 under Section 509/34 IPC No 432888/16 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 sense of shame proceeding from instinctive aversion to impure or coarse suggestions." In the case titled as Raju Pandurang Mahale Vs. State of Maharastra and another reported as AIR 2004 Supreme Court 1677, it was held that:
"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 ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman."
16. Perusal of testimonies of all the prosecution witness shows various contradictory facts of alleged incident and doubt has been created whether such incident had actually happened or not. In the present case in hand, it can be safely said that there are material contradictions and improvements in the testimonies of the prosecution witnesses as PW1 and PW2 have deposed about the certain facts which could not be found in their statements recorded under Section 161 CrPC during the course of investigation nor in their statements recorded under Section 164 CrPC. For the first time the actual abusive words were disclosed by the accused persons while recording of their testimony before the court. The same contradictions and contradictions have put question mark upon the veracity of the case of the complainant.
State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 7/9 under Section 509/34 IPC No 432888/16
17. One more point which requires discussion here is that admittedly accused Devender is the stepson of PW1 and some other case was also registered against him by PW1. Hence, considering the contradiction and improvements in the testimonies of PW1 and PW2, the accused being falsely implicated at the behest of the complainant cannot be ruled out due to some property dispute.
18. It is also essential to mention here that, PW1 in her statement recorded under section 161 CrPC had stated that the accused had abused her verbally but in her statement recorded under section 164 CrPC she remained silent on that aspect. However during her deposition before this court she and PW2 disclosed the abuses for the first time. Apparently there are material improvements in the testimony of the complainant and contradictions between the testimonies of the PWs. In view of the discrepancies in the evidence of the complainant and PWs, their testimonies are not beyond the pale of doubt. The contradictions and improvements appearing in the testimonies of prosecution witnesses have gone to the root and have proved fatal for the prosecution.
19. In the case of Jag Narain Prasad vs State of Bihar, reported as 1998 (2) CC Cases 45 SC, the Hon'ble Apex Court held that conviction cannot be based on the testimony of a witness giving improved statement in court. In the present case the complainant and PW2 has improvised her testimony from her complaint given to the police and her State vs. Devender & Ors FIR No. 45/15 PS: Dwarka North page no. 8/9 under Section 509/34 IPC No 432888/16 statement recorded under Section 164 CrPC. The complainant cannot take the excuse that she had told the police personnel about the same and was not recorded by them.
20. Considering the foregoing discussion, this Court is of the opinion that prosecution has not been able to prove its case beyond reasonable doubt and therefore, it would not be safe to convict the accused on the basis of evidence available on record and he is entitled to benefit of doubt in the present case. Therefore, accused persons namely Devender and Sombir are acquitted of the offence punishable under Section 509/34 IPC.
21. Personal bonds stands canceled and surety stands discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
File be consigned to record room after due compliance.
Digitally signed by DEEPAK DEEPAK KUMAR
KUMAR Date:
2018.07.20
14:34:36 +0530
Announced in the open court (DEEPAK KUMARII)
on 19th July, 2018 MM06/DWK/SW/ND
State vs. Devender & Ors
FIR No. 45/15
PS: Dwarka North page no. 9/9
under Section 509/34 IPC
No 432888/16