Delhi District Court
State vs Sanjeev Kumar Gupta on 20 October, 2023
IN THE COURT OF SHRI KAPIL GUPTA
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE
COURTS, NEW DELHI DISTRICT: NEW DELHI
FIR No. : 1736/2015
PS : Vasant Vihar
State Vs. Sanjeev Kumar Gupta
JUDGMENT
A Case Identification 55180/2016
Number
B Name of the Ms. Neerja Chaudhary
Complainant
C Name of the accused Sh. Sanjeev Kumar Gupta
D Date of Institution 02.02.2016
E Offence Charged U/s 509 IPC
F Plea of accused Accused pleaded not guilty
G Order Reserved on 14.09.2023
H Date of Pronouncement 20.10.2023
I Final Order Conviction
Digitally
signed by
Kapil Kapil Gupta
Date:
Gupta 2023.10.20
14:52:14
+0530
FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 1 of 20
1. The complainant Ms. Neerja Chaudhary had filed a complaint upon which the present FIR got registered. It is alleged by the complainant that on 20.11.2015 at about 5:00 pm in front of house no. BE - 14D, DDA Flats, Munirka, New Delhi, the accused Sanjeev Kumar Gupta uttered abuses to the complainant while she was feeding dogs and insulted modesty of the complainant.
2. Upon completion of investigation, final report in the form of chargesheet was forwarded to the Court for trial of accused for commission of offence U/s 509 IPC.
3. After taking cognizance of the offence, the accused was summoned and after compliance of Section 207 CrPC and after hearing the parties concerned, charge for commission of offence under Section 509 IPC was framed upon the accused to which he pleaded not guilty and claimed trial.
4. Accused admitted the present FIR along with certificate U/s 65 B of Indian Evidence Act Ex. C1(colly), DD No. 29A dated 20.11.2015 Ex. C2 and statement of the complainant U/s 164 CrPC Ex. PW1/3 under Section 294 CrPC and the corresponding witnesses were dropped.
5. In order to prove its case against the accused, the prosecution examined 6 witnesses.
6. Ms. Neerja Choudhary was examined as PW 1 who deposed that on 20.11.2015 at about 5:00 pm, she left her house for Khan Market in her car and received a call from her maid Supriya stating that her neighbour, Sanjeev Gupta was abusing her and insisting her to not feed the street dog Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:52:32 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 2 of 20 and she called her back and thereafter, she came and took the bowl from her maid Supriya and told her that she would feed the street dog. She deposed that in the meantime, accused came near her and tried to snatch the bowl from her, started abusing her and tried to push her. She further deposed that she cannot tell the abuses openly in the court but can write down the same and thereafter, the witness wrote the words on a paper which was exhibited as Ex. PW1/A. Ex. PW1/A reads as follows - Tumhari Sari Maids Ko Chodunga Maa Ki Choot Tumhari Maa Behen Ko Chodu Kutto Ko Yaar Bana Kar Ghoomti Ho (certain words were written in Hindi). She also deposed that she made a call at PS Vasant Vihar and three police officials came at her house and she gave her complaint Ex. PW1/2 to them on 20.11.2015. She further deposed that police prepared the site plan at her instance and her statement U/s 164 CrPC Ex. PW1/3 was recorded on 27.11.2015. She deposed that accused has a habit to torture street dogs by hitting them and running over his scooter over sleeping dogs and the reason as to why he hurled abuses to her and her maid was because they used to ask him to stop such behaviour and stop torturing the dogs. She also deposed that when her maids used to sit in the balcony, the accused used to climb stairs in very less clothes and used to pass comments and stare at them due to which their maid used to come back inside.
7. In cross-examination of PW-1, the witness stated that the police had obtained her hand written complaint and recorded statements of her maid. She further stated that at the time of the incident, accused was alone and later on public persons gathered upon hearing the noise. She also stated that her complaint was written by her daughter and the same was read over to her, however, at such time she was very shocked and her daughter wrote whatever she had seen. She admitted that she had not mentioned the Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:52:45 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 3 of 20 incident of attempt of pushing her and snatching of the bowl by the accused in Ex. PW1/2. She further admitted that the maid was not specifically named in the complaint Ex. PW1/2 and statement Ex. PW1/3. She also admitted that specific words have not been stated in Ex. PW1/1 and Ex. PW1/3. She denied the suggestion that she has deliberately not mentioned the alleged words in her statement U/s 164 CrPC.
8. Ms. Supriya was examined as PW 2 who deposed that she was working as a maid at house of the complainant at BE-14D, DDA Flats, Munirka, Vasant Vihar, New Delhi and used to reside at such place at time of the incident. She further deposed that on 22.11.2015 at about 5:00 pm when the complainant was going to Khan Market from her house, she was feeding the street dogs in a bowl and the accused started abusing and shouting " khana mat khilao" and tried to snatch the bowl and since the accused was very angry, she made a call to the complainant who came to the house and stated that she shall feed the dogs and started feeding the dogs and the accused tried to snatch the bowl from her. She further deposed that the complainant told the accused to not cross his limits and upon this, the accused started abusing her, tried to push her and tried to pelt stone on her and kept on hurling abusing related to dogs. She identified the accused who was present in the court. Ld. APP for the State sought permission to put leading question to the witness and the same was allowed. The witness stated that she had informed the police that the accused was pelting stones on the street dogs. Upon being asked, if she can write the words uttered by the accused, she stated that she can write it on a paper and wrote the same on Ex. P2. Contents of Ex. P2 reads as follows - "Tum aapni ghar ki ladki ko solate ho, or maa bhan ka gali bhi dila".
Digitally signedKapil by Kapil Gupta Date: 2023.10.20 Gupta 14:52:57 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 4 of 20
9. During cross-examination, PW-2 stated that on the day of the alleged incident, there were 4-5 maids apart from herself and the complainant, when the police came on the day of the alleged incident. She denied that no incident of accused hurling abuses at her happened of the said day and time. Upon being asked as to why is her statement to the police, silent, she stated that she had told everything to the police. She denied the suggestion that she deposed falsely about the accused abusing her as no such incident is either mentioned in Ex.PW1/2 or in her statement.
10. W/Ct. Neelam was examined as PW 3 who deposed that on 20.11.2015, she joined investigation along with HC Sanjay at DDA Flat, Munirka. She deposed that upon reaching, they met with the complainant and came to know that some dispute had occurred due to dogs and thereafter, IO recorded statement of the complainant and she went back to the Police Station where her statement was recorded by the IO. Ld. APP for the State sought permission to ask leading questions and the same was allowed. Witness further deposed that Ct. Manoj had also joined investigation and she had stated in her statement that after recording statement of complainant and preparation of rukka, the said rukka was handed over to Ct. Manoj for registration of FIR. She did not remember if the site plan was prepared or not and if all documents were prepared by sitting in house of the complainant.
11. During cross-examination, witness denied the suggestion that she never visited the place of incident. It is pertinent to mention that it was observed by the Ld. Predecessor as pointed out by Ld. Counsel for the accused, that the witness had written something on her left hand i.e. Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:53:11 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 5 of 20 address of the complainant, DD Number, PCR Call, Date of incident, name of the complainant and name of one constable Manoj.
12. Ct. Manoj Kumar was examined as PW-4 who deposed that on 20.11.2015, he was on emergency duty along with HC Sanjay and received a call regarding some problem and he along with HC Sanjay reached at DDA flat, Munirka where they met the complainant who handed over a written complaint to HC Sanjay, who handed over the same to him for registration of FIR. He further deposed that he went to the Police Station for registration of FIR and came back at the spot along with copy of FIR and original rukka and same was handed over to HC Sanjay. He also deposed that IO prepared site plan of the case and served notice upon accused for joining investigation and came back to Police Station and recorded his statement at the spot. Accused was present in the court and was identified by the witness. Ld. APP for the State sought permission to ask leading questions and the same was allowed. Witness stated that Ct. Neelam was also accompanying them. He was cross-examined on behalf of the accused.
13. HC Sanjay Kumar was examined as PW5 who deposed that on 20.11.2015, he was on emergency duty along with Ct. Manoj and received information from duty officer vide DD No. 29A after which he along with WCt. Neelam and Ct. Manoj went to the spot i.e. DDA Flat, BE-14D, Munirka and upon reaching there, met the complainant Neerja who handed over a written complaint regarding the incident and on the basis of said complaint, he prepared rukka Ex. PW5/A and handed over to Ct. Manoj for registration of FIR who went to Police Station for registration of FIR and came back to the spot along with copy of FIR and original rukka and the Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:53:22 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 6 of 20 same was handed over to him. He further deposed that at instance of the complainant, site plan Ex. PW5/B was prepared and he recorded statement of maid of complainant regarding the incident and thereafter, went to house of the accused, interrogated him and served notice u/s 41A CrPC Ex. PW5/C for joining investigation. He proved application moved for recording the statement of complainant U/s 164 CrPC Ex. PW5/D. Accused was present in the court and was correctly identified by the witness.
14. During cross-examination, PW-5 stated that upon reaching the spot, he found that there were two other persons i.e. the maid and other person who may be daughter of the complainant, present along with complainant. He further stated that he inquired about the incident from the neighbours of the complainant but none was ready to tell anything about the incident due to neighbourhood.
15. Statement U/s 313 CrPC of the accused was recorded and all the incriminating evidence was put to the accused and he stated is innocent and has been falsely implicated in this case. He further stated that on 20.11.2015 at around 2:00 pm when his brother came to visit him, he was attacked by stray dogs of the colony and in order to save his brother and in his self defence, he threw a stone to repel them. He further stated that around 4:00 pm, he left his house for some work and returned only around 8:00 pm and thereafter, IO took him to the police station and made him sign certain papers. He also stated that he was never told about the case against him until submission of the chargesheet. Accused did not choose to lead evidence.
16. It is worthy to mention that after recording evidence of the above Digitally signed Kapil by Kapil Gupta Date: Gupta 2023.10.20 14:53:33 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 7 of 20 witnesses and hearing the final arguments, Ld. Predecessor vide judgement dated 25.03.2019, acquitted the accused for the offence under Section 509 IPC. Such judgement was set aside by the Ld. Sessions Court vide order dated 12.08.2022 passed in case titled as Neerja Chaudhary vs. State of Delhi & Anr., CA No. 115/19 and the matter was remanded back to be disposed off, in accordance with law. Thereafter, an application under Section 311 CrPC seeking to examine Divisha Chaudhary as a witness was moved on behalf of the complainant and the same was not opposed on behalf of the accused and the same was allowed.
17. Thereupon, Divisha Chaudhary was examined as PW-6 who deposed that on 20.11.2015, at around 5:00 pm, she was at her house i.e. BE 14D, DD Flats, Munirka, New Delhi--110067 and her mother had left the house in her car to go to Khan Market at about 5:00 pm and at such time, her maid namely Supriya was feeding the dog. She deposed that in the meanwhile, she heard loud noises from outside and went in the balcony and saw that the accused was abusing her maid in a filthy language and shouting " khana mat khilao" and she became very scared and also saw that her maid Supriya had called her mother through her mobile phone. She further deposed that after some time her mother came back to the spot and she saw that her mother took the feeding bowl from Supriya and asked her to leave and started feeding the dogs and the accused tried to snatch the bowl from her mother's hand and started abusing her in a very filthy language, pushed her and tried to pelt a stone upon her and due to all this, some passerby had gathered at the spot. She also deposed that after some time, her mother came back home and called the police and police came to her house and her mother dictated the complaint Ex. PW1/2 to her which she wrote as it was, read over the same to her mother and thereafter, her Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:53:48 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 8 of 20 mother signed it. Upon being asked if she can tell the filthy words hurled by the accused upon her mother, she replied that she can tell and recited the words as follows "kutto ko yaar banate ho, maa ki choot, behen chod dunga".
18. During cross-examination, PW-6 denied the suggestion that she was not present as she was standing in balcony and watching the whole incident. She stated that at the time of incident, the accused, her maid Supriya and after sometime, her mother were present at the spot and after her mother came, Supriya was standing at a distance. She further stated that when she went out, the accused was shouting that "khana mat khilao" and was abusing and was hurling mother sister abuses.
19. Additional statement U/s 313 CrPC of the accused was recorded and all the incriminating evidence was put to the accused and he stated is innocent and has been falsely implicated in this case. He again did not choose to lead defence evidence.
20. Final arguments were heard. Ld. APP for the State and Ld. Counsel for the complainant argued that prosecution has proved their case beyond reasonable doubt and there is sufficient material on record to prove the guilt of the accused and prayed that the accused be convicted. It was contended that the accused has insulted modesty of the complainant by his act.
21. Per contra, Ld. Counsel for the accused argued that the accused has been falsely implicated in the case and is innocent. It was stated that the accused was not present at the spot at the time of the alleged incident. It Digitally signed Kapil by Kapil Gupta Date: Gupta 2023.10.20 14:53:59 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 9 of 20 was contended that there are material improvements and discrepancies in the testimony of the complainant. It was stated that the prosecution did not examine any independent public witness. It was argued that the accused could not have hurled such words in presence of his daughter. It was further argued that case of the prosecution is full of contradictions and prosecution has failed to prove the ingredients of the provisions and as the prosecution has failed to prove its case beyond reasonable doubt, accordingly accused be given benefit of doubt and be acquitted of all the charges.
22. Charge under Section 509 IPC has been framed upon the accused.
23. Section 509 IPC defines voluntarily causing hurt 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.
24. In order to prove the offence u/sec 509 IPC the prosecution is required to prove the following ingredients:
(1) Intention to insult the modesty of a woman;
(2) The insult must be caused, Digitally
signed by
Kapil Kapil Gupta
Date:
Gupta 2023.10.20
14:54:13
+0530
FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 10 of 20
(i) 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
(ii) by intruding upon the privacy of such woman.
25. It is settled principle of criminal law that an accused is presumed to be innocent until proven guilty and the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt by bringing on record reliable and credible evidence. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond reasonable doubt, unless otherwise so provided by any statute.
26. The allegations in the present case are that on 20.11.2015 at about 5:00 pm in front of house no. BE - 14D, DDA Flats, Munirka, New Delhi the accused Sanjeev Kumar Gupta uttered abuses to the complainant while she was feeding dogs and insulted her modesty.
27. It is not in dispute that complainant and accused are neighbours. PW-1, PW-2 and PW-6 are the eye witnesses of the present case as per the prosecution and PW-1 is also the complainant and the victim.
28. The testimony of PW-1, PW-2 and PW-6 are consistent on the point that on 20.11.2015 at about 5:00 pm, complainant left her house in her car and received a call from her maid Supriya stating that her neighbour, Sanjeev Gupta was abusing her and thereafter, she came and fed the street dog and then the accused started abusing the complainant. The words have been specifically written by PW-1 being "Tumhari Sari Maids Ko Chodunga Maa Ki Choot Tumhari Maa Behen Ko Chodu Kutto Ko Yaar Kapil Digitally signed by Kapil Gupta Gupta Date: 2023.10.20 14:54:29 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 11 of 20 Bana Kar Ghoomti Ho". Further, PW-6 had also narrated the words uttered by the accused being "kutto ko yaar banate ho, maa ki choot, behen chod dunga" and PW-2 had also written such words being "Tum aapni ghar ki ladki ko solate ho, or maa bhan ka gali bhi dila".
29. All the eye witnesses including the complainant have been consistent in their deposition regarding the fact that abuses were hurled by the accused to the complainant. Though the words uttered by the accused as told by the witnesses are not the same, however, upon perusal of such words it is revealed that the nature and essence of the words as spoken by the accused is the same and thus, there is a consistency in the deposition of the witnesses regarding the nature and essence of the abusive words spoken by the accused.
30. At this juncture, it is relevant to discuss the meaning of 'modesty' of a woman. Reliance is placed on the landmark judgement passed by Hon'ble Supreme Court in case titled as Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 which states as follows:
"14. Since the word `modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word `modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast".
Webster's Third New International Dictionary of the English Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:54:39 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 12 of 20 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 Ed) 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 sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
15. In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the 'common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed 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. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that 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. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:54:53 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 13 of 20 Mrs. Bajaj on her posterior amounted to `outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady -
"sexual overtones" or not, notwithstanding."
31. The testimony of PW-1, PW-2 and PW-6 is unequivocal with regard to the fact that the accused had abused the complainant. It has been stated by the complainant in her deposition that at the time of the incident, she was very shocked and such testimony could not be impeached by the accused. Considering the nature and meaning of the words as uttered by the accused, it can be observed that such words clearly outraged the modesty of the complainant as complainant got shocked upon hearing such words. The words spoken by the accused indicate an act done with the intention to outrage the complainant's modesty as they were spoken when the complainant was feeding the dogs despite the accused objecting to the same. Moreover, the testimony of the witnesses could not be dislodged by the accused in their cross-examination.
32. The defence raised by the accused needs to be considered. It was contended that there are material improvements and discrepancies in the testimony of the complainant and thus, the accused should be acquitted. It has been argued by the defence that complainant never specified the exact abusive words in the complaint given by her to the police and even in the statement under Section 164 CrPC recorded before the magistrate and thus, there is a material improvement in the testimony of the complainant. During the course of cross-examination, the complainant was confronted with her previous statements and the complainant admitted that she had not mentioned the incident of attempt of pushing her and snatching of the bowl Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:55:05 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 14 of 20 by the accused in Ex. PW1/2 and further admitted that the maid was not specifically named in the complaint Ex. PW1/2 and statement Ex. PW1/3 and further admitted that that specific words have not been stated in Ex. PW1/1 and Ex. PW1/3.
33. At this juncture, reliance is placed on the judgement of the Hon'ble Supreme Court in the case titled as Mritunjoy Biswas vs. Pranab alias Kuti Biswas & Anr., (2013) 12 SCC 796 as follows:
"As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should Kapil Digitally signed by Kapil Gupta Date: 2023.10.20 Gupta 14:55:15 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 15 of 20 create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (See Leela Ram (dead) through Duli Chand v. State of Haryana and another [(1999) 9 SCC 525 :
(AIR 1999 SC 3717 : 1999 AIR SCW 3756)], Rammi alias Rameshwar v. State of M.P. [(1999) 8 SCC 649 : (AIR 1999 SC 3544 : 1999 AIR SCW 3546)] and Shyamal Ghosh v. State of West Bengal [(2012) 7 SCC 646 : (AIR 2012 SC 3539 : 2012 AIR SCW 4162)."
34. Upon perusal of the statement of the complainant recorded under Section 164 CrPC, it is revealed that the complainant has narrated that the accused was giving 'maa-behen ki gali' when she reached the spot. It is again observed that though the words mentioned in such statement and in her deposition before the court, may not be the same but the nature and essence of the words as spoken by the accused are the same, even as per these two statements. Further, in view of the judgement of the Hon'ble Apex Court, it can be seen that the improvement or discrepancy in the testimony of complainant after not writing the exact words in her complaint given to the police, does not go to the root of the case as the complainant has stated that at the time of the incident, she was very shocked and her daughter wrote whatever she had seen. It is a natural reaction of any person to be shocked upon hearing such abusive words being uttered to them out in the open. The complainant may have omitted telling the words when the complaint was being written. Such omission would not result in disregarding the testimony of the complainant when the testimony of the complainant and of the other two eye witnesses is Digitally signed Kapil by Kapil Gupta Date: Gupta 2023.10.20 14:55:27 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 16 of 20 otherwise consistent and inspires confidence. Thus, the contention led on behalf of the accused that there are improvements in the testimony of the complainant and thus, the accused should be acquitted is liable to be rejected.
35. It was argued on behalf of the accused that the prosecution did not examine any independent public witness. It was stated by the complainant in her cross-examination that at the time of the incident, accused was alone and later on public persons gathered upon hearing the noise. It was stated by the IO/PW-5 in his cross-examination that he inquired about the incident from the neighbours of the complainant but none was ready to tell anything about the incident due to neighbourhood.
36. It is a well settled law that non-joining of independent witnesses is not fatal to the prosecution version in every case. In this regard, reference can be made to a judgment of Hon'ble Supreme Court titled Appabhai Vs. State of Gujrat, AIR 1988 SC 696, wherein it is observed by the Hon'ble Court that:
11. *** "It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses.
But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or Kapil Digitally signed by Kapil Gupta Gupta Date: 2023.10.20 14:55:38 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 17 of 20 parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
37. The complainant has clearly stated that at the time of the incident, accused was alone and later on public persons gathered upon hearing the noise. Thus, it can be seen that as per the version of the complainant, there was no public person present at the spot except for her, the accused, maid and her daughter, at the time of the incident. It is not a case where efforts were not made by the IO to join independent public witnesses as it was stated by him that he inquired about the incident from the neighbours of the complainant but none was ready to tell anything about the incident due to neighbourhood and his testimony could not be dislodged by the accused. Thus, in view of such discussion and the above law laid down by the Hon'ble Apex Court, it is clear that non-joining of public witnesses is not fatal to the prosecution case.
38. It was stated that the accused was not present at the spot at the time of the alleged incident. Thus, the accused has raised the plea of alibi.
39. It has been held by the Hon'ble Supreme Court in the case titled as Shaikh Sattar vs State Of Maharashtra, Criminal Appeal No. 928 OF Kapil Digitally signed by Kapil Gupta Gupta Date: 2023.10.20 14:55:51 +0530 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 18 of 20 2007 that "When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case."
40. It was stated by the accused in his first statement recorded under Section 313 CrPC that around 4:00 pm, he had left his house for some work and returned only around 8:00 pm. It is shocking to observe that the accused has not stepped into the witness box to depose as to where he had gone at 4:00 pm. No witness including any family member of the accused or the person with whom the accused was with, has been examined to prove the defence taken by the accused. Such witnesses would have been star witnesses for the accused as they could have deposed as to where the accused was at the time of the incident and proved the plea of alibi taken by the accused. Non examination of such material witnesses for the reasons best known to be accused, is fatal for the case of the accused. Thus, it can be said that the defence taken by the accused was merely bald, baseless and thus, liable to be rejected.
41. It was argued on behalf of the accused that he could not have hurled abusive words in presence of his daughter.
42. Perusal of record reveals that the accused has not brought on record even an iota any evidence to prove that he could not have hurled abusive words in presence of his daughter. The accused did not even examine his daughter as a witness to prove such contention. Such contention is nothing but a mere conjecture and a bald averment lacking any legal support and thus, such contention led on behalf of the accused is again liable to be rejected. Digitally signed Kapil by Kapil Gupta Date:
Gupta 2023.10.20
14:56:03 +0530
FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 19 of 20
43. In view of the above discussion and the material available on record, it has been proved by the prosecution beyond reasonable doubt that the accused Sanjeev Kumar Gupta uttered abuses to the complainant which insulted her modesty. The testimony of the complainant and the other eye witnesses has been consistent and could not be demolished, as observed earlier. It is clear that the accused could not controvert the allegations levelled by the complainant in view of the evidence adduced and material available on record. Thus, the prosecution has been able to discharge its onus qua the offence of the Section 509 IPC.
44. As such, prosecution has successfully brought home the guilt of accused Sanjeev Kumar Gupta for the offence punishable u/s 509 IPC through the testimonies of examined witnesses and further has established the ingredients of offences alleged against the accused in the present matter beyond reasonable doubt.
45. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused Sanjeev Kumar Gupta is guilty of offence punishable 509 IPC and accordingly, is hereby convicted for the offence punishable under Section 509 IPC.
46. Accused shall be heard on the point of sentence. Copy of the judgement be provided to convict, free of cost.
Digitally signedKapil by Kapil Gupta Date: Gupta 2023.10.20 14:56:15 +0530 Announced in the (Kapil Gupta) court on 20.10.2023 MM-07/PHC/NDD/20.10.2023 FIR No. 1736/15 State Vs. Sanjeev Kumar Gupta Page 20 of 20