Delhi District Court
Cc No. 157/1/17 Ps Kirti Nagar Rajnish ... vs . Anil Arya Page- 1 Of 17 on 10 March, 2021
IN THE COURT OF MS. CHHAVI KAPOOR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
Rajnish Sharma
Vs.
Anil Arya
CC No. 157/1/17
P.S Kirti Nagar
1. ID No. of case 5334/2016
2. Date of institution 28.03.2013
3. Name of the complainant Rajnish Sharma
S/o Late Sh. Chetan Lal Sharma
R/o A-48, Double Storey, 2nd floor,
Ramesh Nagar, New Delhi.
4. Date of commission of offence 28.09.2012
5. Name of accused Anil Arya
S/o Sh. P. N. Arya
R/o A-48, Double Storey, 3rd floor,
Ramesh Nagar, New Delhi.
6. Offence complained of U/s 323/452/509 IPC
CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 1 of 17
7. Plea of accused Pleaded not gulity
8. Date of reserving the judgment 01.03.2021
9. Final order Acquitted.
10 Date of such judgment 10.03.2021
JUDGMENT
1. Complainant had filed a case under section 200 CrPC interalia with a prayer that an FIR be registered against the accused for committing offences under section 323/452/506/509 IPC. The application of the complainant under section 156 (3)CrPC was dismissed by the predecessor Court and Vide order dated 23.05.2013, the complainant was directed to lead pre summoning evidence in favour of his case.
2. The complaint had been filed by the complainant with the allegations that the accused no. 2 was their landlord and the accused no. 1 was the son of their landlord i.e. son of the accused no. 2. The tenanted property is bearing number A-48, Double Storey, IInd floor, Ramesh Nagar, New Delhi. The complainant had stated that he was residing along with his family in the tenanted property on the second floor whereas the accused CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 2 of 17 no. 1 was residing on the 3rd floor of the same property and the accused no. 2, who is the father of the accused no. 1, was residing on the first floor of the property.
3. The complainant had claimed that he was a regular paymaster in making payment of rent to the landlord in time. It was claimed that the complainant used to pay the rent through account payee cheques and rent uptill August 2012 stood paid to the landlord. It was alleged that on 02.09.2012, the accused had come to the residence of the complainant and had hurled abuses to him and his family members and threatened them to vacate and handover the possession of the tenanted premises otherwise he would forcibly dispossess the complainant and his family members from the same. It was alleged that the complainant had made a complaint to the accused No.2 regarding the conduct of the accused no.1. It is alleged that despite this fact, the accused came to the residence of the complainant with two Gundas and threatened them that if the property would not be vacated, then he would dispossess him by use of force. Hence, the complainant reported the matter to SHO of PS Kirti Nagar vide diary number dated 18.09.2012, however, it is alleged that the CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 3 of 17 SHO PS Kirti Nagar did not take any action against the accused no.1 and
2. It is claimed that thereafter the complainant filed a civil suit against the accused no.2 in the court of Shri Sushant Changotra, Civil Judge, Tis Hazari Courts Delhi and vide order dated 26.09.2012 passed in the said civil suit,interim protection was granted in favour of the complainant.
4. It is alleged that on 28.09.2012, the complainant and his wife were not present in the tenanted property when the accused no. 1 illegally trespassed into the same between 8.00 to 8:30 p.m. and hurled abuses to children of the complainant in the presence of their teacher. It was also alleged that the accused no.1 slapped the son of the complainant namely Shivam. It is claimed that when the complainant and his wife came to the tenanted property and got to know about the misdeeds of the accused no.1, the wife of the complainant made a PCR call at 100 number and police came to the spot. It is claimed that upon arrival of the police, the accused no.1 confessed that he had hurled abuses and he gave a written confession that he will not repeat the conduct in future.
5. It is alleged that on 05.10.2012 at about 7.00 a.m. both the CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 4 of 17 accused persons came to the residence of the complainant and used filthy language and tried to dispossess the complainant from the tenanted property. Thereafter, the complainant again gave a complaint to the SHO of PS Kirti Nagar and also to the DCP, Rajouri Garden, New Delhi on 05.10.2012, however, no action has been taken upon the complaint till today.
6. It is alleged that on 20.03.2013, the accused no.1 again visited the residence of the complainant and tried to dispossess him without due process of law from the same. It is claimed that the complainant raised hue and cry and thereafter, the accused left the spot but threatened him that he will come again and take forcible possession of the tenanted premises from him. The complainant has stated that he again sent a written complaint to the SHO of PS Kirti Nagar but he failed to register the FIR against the accused persons. Accordingly, this complaint case was filed before the court with prayer that directions be passed to the SHO of PS Kirti Nagar to register an FIR against the accused and in the alternate, the complainant be given liberty to prove his case by examining witnesses .
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7. In the course of pre-summoning evidence, the complainant examined himself as CW1 on 08.10.2013 and relied upon the following documents in favour of his case.
1.) Complaint made to police on 18.09.201221 is Ex.CW1/A
2.) Statement / undertaking of accused Anil Arya as Mark X
3.) Complaint made to police on 05.10.2012 is Ex.CW1/C
4.) Postal receipt as proof of service of complainant is Ex.CW1/D.
8. The complainant also examined Shri C. K. Sharma as CW2, who deposed in consonance with the case set out in the complaint.
9. The complainant further examined his daughter Vasundhara Sharma as CW3 on 29.11.2013 in favour of his case.
10. After Conclusion of pre summoning evidence, arguments on the aspect of summoning of the accused were heard and vide order dated 26.04.2014, cognizance of the offences under section 323/452/ 509 IPC were taken and accused no. 1 was summoned to face trial. Thereafter, the accused Anil Arya appeared before this court and moved an application for CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 6 of 17 grant of bail. He was admitted to Court bail on his furnishing a personal bond and surety Bond in the sum of Rs.10,000/-whereafter the matter was fixed for pre-charge evidence. During pre-charge evidence, the complainant examined himself, his daughter and Public witness Shri C.K. Sharma in pre-charge evidence. The witnesses were duly cross- examined by the Counsel for the accused Anil Arya and thereafter charges were framed against the accused for committing offences under section 323/452/509 IPC.
11. Charges were framed against the accused on 28.01.2021 whereafter the counsel for the complainant stated that the complainant was adopting the evidence recorded by the complainant in pre-charge evidence at the stage of post-charge evidence as well. The counsel for the accused also opted not to cross examine the witnesses further, thereafter matter was listed for statement of the accused. Statement of the accused was recorded on 06.02.2021 whereafter, the accused opted not to lead any defense evidence .Final arguments were addressed before this court. After hearing final arguments, the court has come to the following conclusion regarding the charges framed against the accused:-
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12. Accused Anil Arya was charged with for commission of offences u/s 323/452/509 IPC in this trial. It is an admitted fact the complainant is the tenant in the property belonging to the accused. It is further admitted that parties were at variance and were in litigation at the time of commission of the alleged offence. It is further admitted that on the date of the alleged incident, the court of Civil Judge, Tis Hazari, Delhi had already granted interim protection from dispossession to the complainant vide orders dated 28.09.2012.
13. The present case had been filed with the allegations that on 28.09.2012, the accused trespassed into the tenanted property and hurled abuses to the daughter of the complainant and slapped his son. It is claimed that the incident took place in the absence of the complainant, however it is stated that the incident was witnessed by the tuition teacher of the children of the complainant namely Sh. C. K. Sharma. Hence, in order to prove the case against the accused, the complainant had examined his daughter and the tuition teacher Sh. C. K. Sharma as CW's. No reason for not producing the son of the complainant in the witness box was given to the Court. As per the case set out in the CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 8 of 17 complaint, it was the son of the complainant namely Shivam who was slapped by the accused and had sustained simple injuries in this incident. It was argued that no MLC of the injured was prepared as it was case of simple hurt by slapping, however, in order to substantiate the charges against the accused, the complainant should have brought the injured in the witness box. The charges u/s 323 IPC were framed with the allegation that the son of the complainant Shivam was slapped by the accused on 28.09.2012. No reason for withholding the testimony of the injured during trial was cited. The testimony of daughter of the complainant and their tuition teacher was given, in order to corroborate the story set out in the complaint, yet in the absence of the testimony of the injured himself and failure of the complainant to cite a reasonable cause for the absence of this witness, it appeared that something was amiss and that an essential piece of evidence was being withheld from the eyes of the Court for no justifiable cause.
14. Moving further, in the testimony of the complainant witnesses, it was deposed to that the accused had hurled filthy abuses to the daughter of the complainant. The exact words which were used by the CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 9 of 17 accused were not reproduced either in the complaint or in the testimony of CWs. A specific question in this regard was also put to the CWs in their cross examination, however, none of the witnesses revealed the actual words that were used by the accused to insult the daughter of the complainant. During the course of final arguments, Counsel for the accused argued that the allegation of hurling filthy abuses was not enough to justify conviction u/s 509 IPC. It was argued that in order to prove the accused guilty of commission of offence u/s 509 IPC, the complainant was required to depose the words that were actually uttered to insult the victim. It was argued that the Court was required to examine the alleged "abuses" or the words that were used by the accused, in order to determine if the same were made with the intention of intruding upon the privacy of the victim.
15. The submissions of the Counsel for the accused are noteworthy and not without merit. Section 509 of IPC reads as under :-
"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 CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 10 of 17 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."
16. 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.
17. In the case of State of Punjab v. Major Singh (AIR 1967 SC
63) : (1967 Cri LJ 1),it was held that the ultimate test for ascertaining CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 11 of 17 whether modesty has been outraged was whether the action of the offender was such as could be perceived as one which was capable of shocking the sense of decency of a woman.
18. In the present case, neither the complainant nor the witnesses had specified what words were exactly used by the accused. The witnesses had categorically said during their evidence that they could not repeat the words. One can understand that repeating the words loaded with filth was undesirable yet the witnesses could have come out with some sort of clarification regarding the 'language' used. Even otherwise, it was an admitted fact that the complainant was not even present at the tenanted property when the alleged offence took place with his daughter. Hence, his testimony regarding commission of the offence u/s 509 IPC was merely hearsay. Furthermore, in order to establish this offence, it was necessary to show that the modesty of the victim had been insulted by a spoken word or gesture or physical act. However, no such evidence was led by the complainant side to show that by utterances of any words, the modesty of the daughter of the complainant was outraged. CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 12 of 17 Only a bare allegation that the modesty was outraged was made and same is not sufficient to hold the accused guilty of commission of offences u/s 509 IPC.
19. The complainant and his wife were admittedly not present at the tenanted property when the "offences" were committed by the accused. It was portrayed that public witness Sh. C K Sharma was present at this time. This witness had deposed that he was the tuition teacher of the children of the complainant. He stated that he was not employed as a teacher in any school and his primary job was to give home tuitions only. He admitted that he had not disclosed the income received from imparting tuitions to the children of the complainant in his ITR. He deposed that he used to charge a paltry sum of Rs.1,500/- per month as tuition fee from the complainant. On his further cross examination, he disclosed that he used to come from a distance of 15 Kms from his residence to the tenanted property to give tuitions to the children of the complainant. He submitted that he was not an income tax assessee any more and could not place on record his ITR for perusal of the Court. In the light of the said CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 13 of 17 deposition, the counsel for the accused argued that the presence of the witness Sh. C. K. Sharma in the tenanted property at the time of the alleged offence was highly improbable. He further argued that the witness was not a tuition teacher of the children of the complainant and that he had merely been set up to falsely testify in favour of the complainant. The submissions made on behalf of the accused in this regard are not without substance as apart from the testimony of CWs, there is absolutely nothing on record to suggest that this witness was present in the tenanted property at the time of the incident. Only a bare claim was made in this regard. Even otherwise, in his testimony dated 19.07.2018, this witness had admitted that the quarrel took place on the date of the incident on the issue of high volume of music and the voice from playing football, whereas the complaint case had been filed with the allegation that the offences were committed by the accused with a view to coerce the complainant and his family members to throw them out of the tenanted property illegally and unlawfully. Infact, this witness testified that at the time of the quarrel, the complainant as well as his wife and his children were present at the house whereas the complaint was filed with the claim that the offences were committed by the accused in the absence of the complainant. CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 14 of 17 Hence, the testimony of CW Sh. C. K. Sharma was a far cry from being reliable to hold the accused guilty of commission of the offences.
20. Moving further, it was claimed by the complainant that after the incident, they made a police call and reported the matter to the authorities. It was submitted that on arrival of the police, the accused had confessed to commission of the offences by him and tendered a written apology. This written apology was not produced in original. Only a photocopy was filed and marked in the course of complainant evidence. The counsel for the accused challenged the veracity of this document and argued that complainant had failed to summon the record from the police to prove that any PCR call was made on the date of the incident. It was further argued that complainant had failed to summon the police officials in whose presence this "confession" letter was written by the accused. It was argued that the complainant failed to account for the original of this letter and had not come forward and explain as to in what circumstances was the copy of this "confession" retained by him. The objections to the marking of this letter (Mark X) in the evidence of the complainant are thus CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 15 of 17 sustainable furthermore, the complainant should have summoned the original record from the police in order to prove that such a confession letter was written by the accused on the date of the incident.
21. It was argued on behalf of the accused that during the course of trial, the tenanted property was vacated by the complainant on orders of the Court, however, he was still liable to make payment towards arrears of rent. It was stated that some of the cheques issued by the wife of the complainant in discharge of their liability towards arrears of rent had been dishonoured. It was submitted that the present complaint case was an attempt to pressurize the accused to get him to forego the arrears of rent.
22. In my view, all the circumstances put forth by the accused and the cross examination of the complainant witnesses conducted during trial point out that the case of the complainant is not free from reasonable doubts. There was a landlord tenant dispute between the parties and civil litigation was going on. The complainant had already obtained interim CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 16 of 17 protection from the civil court and the accused was aware that any attempt to dispossess the tenant illegally from the property would not be condoned. The presence of public witness Sh. C. K. Sharma at the scene is highly suspect. The testimony of other complainant witnesses is not reliable. The injured Shivam has not been produced in the witness box. In such circumstances, the Court does not find it prudent to record a finding of guilt against the accused on the basis of evidence led on record. Accused is granted the benefit of doubt and acquitted in this case. Bail bonds tendered by the accused during trial shall be considered u/s 437-A CrPC for a period of 6 months.
23. File be consigned to record room.
Chhavi Digitally signed
by Chhavi Kapoor
Date: 2021.03.19
Kapoor 14:24:04 +0400
Announced in the open court (CHHAVI KAPOOR)
on 10.03.2021 Chief Metropolitan Magistrate,
West District,
Tis Hazari Courts, Delhi.
Certified that this Judgment contains seventeen (17) pages and each page is signed by me. Digitally signed by Chhavi (CHHAVI KAPOOR) Chhavi Kapoor Chief Metropolitan Magistrate, Date:
Kapoor West District, 2021.03.19 14:24:14 Tis Hazari Courts, Delhi.
+0400 CC No. 157/1/17 PS Kirti Nagar Rajnish Sharma Vs. Anil Arya Page- 17 of 17