In The Court of Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate02, (Mahila Court), South East, New Delhi State Vs. Vikas Saxena FIR No: 489/2015 PS: G.K.I U/s: 354D/506/509 IPC JUDGMENT
Date of institution : 28.01.2016 CRC no. : 95410/2016 Name of the complainant : As per chargesheet. Name & address of the accused : Vikas Saxena S/o Late Sh. Jagdish Narayan Saxena, R/o H.No.M25, Servant Room, G.K.I, New Delhi. Offence Complained of : U/s 354D/509 IPC Offence Charged of : U/s 354D/506/509 IPC Plea of accused persons : Pleaded not guilty Final Order : Acquitted Date of arguments : 26.06.2019 Date of announcing of order : 27.06.2019 BRIEF FACTS:
1. Brief facts of the case are that the complainant who is the wife of accused got married to the accused in the year 2011. A divorce case was State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 1 /17 pending between the complainant and the accused since the year 2013. The complainant had been residing separately from the accused, in the house of her parents. Complainant was employed at R.G. Stone Clinic and her duty hours were from 10.00 AM to 6.00 PM. Further that the accused used to stalk the complainant. On 16.10.2015 at around 6.10 PM, when she was returning home from work and reached near H.No.B42, Kailash Colony, New Delhi, at that time, accused suddenly came towards the complainant as he was following her and started abusing her in filthy language.
2. Pursuant to this complaint dated 16.10.2015 against accused, FIR was registered on the same day and the matter was investigated. Chargesheet was filed on 28.01.2016. Court took cognizance of offence and summoned the accused Vikas Saxena. Charge was framed against accused for the offence U/s 354D/506/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, matter was listed for prosecution evidence. Thereafter, prosecution evidence was led.
3. In order to prove its case, prosecution examined four witnesses.
PW1 Complainant deposed that in the year 2011, she got married with accused Vikas Saxena. After marriage, accused Vikas Saxena had not disclosed her marriage to his family members and any other relatives and he kept her for about 56 months in a rented house at Vasant Kunj, Delhi. After consistent requests and pressure given to him by her, he took her to her State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 2 /17 matrimonial home at RZ51/1, Tuglakabad Extension, Delhi. Thereafter, she started to reside there and accused Vikas Saxena alongwith his family started to harass her for illegal demand of dowry and finally, she was thrown out of her matrimonial home by accused and his mother and sister in December, 2011. After that, she started to live in PG hostel and at that time, she was working as OPD Incharge in RG Stone Hospital, East of Kailash, GK. In the year 2013, she filed a divorce petition against accused Vikas Saxena. From the year 2012 accused started to threaten her by giving a number of calls and stalked her and used to stop her outside her hospital and PG. Initially, she did not make any complaint against him and she ignored his behaviour but when behaviour of accused did not change, then she filed a complaint against him regarding his behaviour and made a number of calls to Women Helpline. Whenever, he stalked her and threatened to pour acid upon her. On 16.10.2015 at about 6.20pm while she was coming out from her office to her home and when she reached near Market area of East of Kailash, accused came from behind in his car and suddenly stopped his car in front of her. Thereafter he got down from car and started to abuse her and used filthy language “maa ki lodi, kutiya, behen ki chut, main tere munh par thukta hun” and he threatened to kill her and her mother and brother if she would not withdraw her all complaints against him. Whenever, he stopped her, he used to force her to go back to him and to withdraw all the cases against him despite her refusal to go back with him. Thereafter, she called at 100 number and police reached at the spot and took her and accused to PS GKI. She had State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 3 /17 given her written statement to PS Ex.PW1/A. Accused was arrested in the police station on the same day. After 1520 days of the incident, she was called by police in the area of GK and had shown the place of incident to police. Police prepared the site plan at her instance. On the next date of incident that is 17.10.2015, she had given her statement u/s 164 Cr.P.C. in the court. Thereafter, her statement was recorded under section 164 Cr.P.C. which is Ex.PW1/B.
During crossexamination PW1 deposed that her marriage was solemnized on 14.02.2011 at Arya Samaj Mandir. Her family members were not present in the marriage. Family members of accused also were not present in their marriage. Only close friends were present. She knew accused Vikas two three years prior to their marriage. Before marriage, she was working in Fortis Jassaram Hospital as OPD executive and she was drawing salary but she did not remember the exact amount of salary due to lapse of time. She could not say whether it was Rs.10,000, Rs.20,000/ or Rs.30,000/ per month. She was told by accused prior to their marriage that he was working as an Executive in Vodafone and also doing part time job in printing. She did not verify the same fact. Before her marriage, she was residing at her parental home at Sarai Kale Khan. Her parents were aware about her relation with accused prior to her marriage but they were against her marriage with accused. She did not remember when she joined Jassaram Hospital and resigned from there in the year 2011 as she obtained better opportunity in RG Stone Hospital. She joined RG Stone Hospital after her State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 4 /17 marriage in the year 2011 and it might be May or June, 2011. There might be 23 days gap between leaving Jassaram Hospital and joining of RG Stone Hospital. At the time of marriage, she was working in Fortis Jassaram Hospital. She had given her resume to RG Stone Hospital and the said resume mentioned her marital status as Unmarried as the said proforma was prepared earlier before her marriage and it was on some internet site and due to which the said resume was received by RG Stone hospital regarding her marital status as unmarried. During her interview in RG Stone Hospital no question regarding her marital status was asked. She was offered the post of Health Checkup Coordinator/ Executive OPD in RG Stone Hospital and the nature of said job was public dealing. At the time of joining RG Stone hospital, her salary was Rs.15,000/ and she was residing with accused in a rented house at Vasant Kunj. At that time, parents of accused were residing at Tuglakabad. She lived with accused in the rented house for about 45 months of her marriage and thereafter he took her to his parental home and she lived there for about 46 months. Thereafter, she started living in a PG accommodation at Sant Nagar. It was correct that one Rohit Rajput was also working in the RG hospital under her supervision. She did not remember the mobile number of Rohit Rajput. She did not remember as to how much time Rohit worked with her and when he left the job of hospital however, he left hospital prior to her leaving the job. She did not know if Rohit Rajput was thrown out from his job as he was not of good character. On 16.10.2015 Rohit Rajput had already left his job. It was correct that Rohit used to give State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 5 /17 her call after leaving his job for the purpose of inquiry about his relieving documents. On the day of incident, she left her hospital at about 6.10pm. It took about 4050 minutes reaching her home at Sarai Kale Khan from the said hospital. She did not know whether at the time of incident, any staff from her hospital came over there or not. On the day of incident, she herself called at number 100 from her mobile phone no.9953689376. Police reached at the spot at about 6.25 to 6.30pm and took her, accused and Rohit to police station. She voluntarily stated that ‘Suddenly at the time of incident, Rohit with his Bhabhi Anita Negi, who was also working in the same hospital, reached there to pick up his bhabhi from hospital, and on seeing the incident, Rohit asked mer about the incident’. Rohit did not go to pick up his bhabhi from hospital after seeing the present incident. Rohit was present at the spot before police reached there. They reached the PS within 5 to 10 minutes and remained there till 10.00 to 11.00pm. She did not remember when Rohit left the PS. She could not say if police recorded the statement of Rohit or not. Apart from her written application, she did not remember whether police had obtained her signature on any documents prepared by them. After 1520 days of incident, she was called at the spot by police and shown her one map which was prepared at her instance. She did not remember if she had signed the said map or not. Police had not recorded her statement on that day regarding preparing the map at the spot. She had made several calls on women helpline, 100 number and a number of written complaints whenever accused used to stalk her on her way however, she did not remember the State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 6 /17 exact date of each and every aforesaid complaint and call which she made against the accused in concerned authorities. After her marriage, she remained with accused Vikas for around 1011 months and in the month of December, 2011 she started to live separately. She might have filed rent receipt for month of January 2012 with her divorce petition. Apart from present case, in the year 2014, she had filed divorce petition against the accused and in the year 2016, maintenance case and case under domestic violence suit were filed against him. One more criminal case regarding stalking against accused was also made to PS Amar Colony and she did not remember the month and year of the said complaint. Upon being asked, witness stated that she did not remember when she had lodged a complaint against the accused. She did not have personal knowledge regarding the status of aforesaid criminal case. She had not asked any maintenance in divorce case which was filed by her in the year 2014. She voluntarily stated that at that time she was working in RG Stone Hospital, East of Kailash. While she was working in the RG Stone Hospital one Sh. Sumit Bansal was also working there as a Manager. She did not know whether any criminal case regarding sexual harassment of her was filed against Sumit Bansal or not. She was not working at RG Stone Hospital at the time of filing of maintenance case, domestic violence case. She had not filed any resume on any website during that period. She did not remember if she had filed any resume on Naukri.Com on 22.4.2017 and she mentioned in the resume that she was still working in RG Stone Hospital East of Kailash and earning State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 7 /17 Rs.3,00,000/ per annum. It was correct that Vikas Saxena is her husband. She did not remember regarding resume dated 22.4.2017 wherein she had written that she was unmarried. She had filed a case against RG Stone Hospital also as she was terminated from her job without any reason. In her termination letter the behaviour of her husband/accused was also mentioned in addition to other reason relating to her job such as lack of work. She could not produce her termination letter without consulting her private counsel. The said termination letter was not under her possession however it was in the possession of her lawyer. Witness denied all suggestions put to her.
PW2 ASI Nem Chand (Duty officer) deposed that on 16.10.2015, he was posted at PS Greater Kailash as Duty Officer. His duty hours were from 4.00 pm to 12.00 midnight. At about 7.20p.m. he received rukka from SI Sahi Ram. On the basis of said rukka, he registered the present FIR Ex.PW2/A. He also made endorsement on the rukka, which was Ex.PW2/B.
Opportunity to cross examine the witness was granted to the accused but he did not question anything to the witness.
PW3 Insp. Sahi Ram (IO) deposed that on 16.10.2015, he was posted at PS GKI as Sub Inspector. The complaint Ex.PW1/A of the said incident was marked to him through SHO PS GKI. Thereafter, he had endorsed the same which was Ex.PW2/B. He handed over the rukka of the present complaint to Duty Officer for registration of FIR. He alongwith complainant went at the place of incident in front of B42, Kailash Colony. He had prepared the site plan Ex.PW3/A. Thereafter he returned back to PS State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 8 /17 and the accused came at the PS. Thereafter, he interrogated the accused and arrested him vide arrest memo Ex.PW3/B and prepared his personal search vide memo Ex.PW3/C and thereafter had released him on police bail after receiving bail bond and personal bond. Thereafter, he had recorded statement under Section 161 Cr.P.C of the witnesses. Thereafter, he had moved an application on 17.10.2015 which was Ex.PW3/D to record the statement under Section 164 Cr.P.C of the complainant and the statement of the complainant was got recorded. Thereafter, he prepared the chargesheet and submitted the same before the concerned court.
During crossexamination PW3 deposed that he was on emergency duty at PS on 16.10.2015 for the whole day. He did not remember if on the aforesaid date, he had attended any other emergency call. The aforesaid complaint was marked to him by the SHO concerned and the same was handed over to him by HC Om Prakash. The same was marked to him around 7.00 PM. Aforesaid HC Om Prakash handed over to him the aforesaid complaint at PS. He was informed by HC Om Prakash regarding the aforesaid complaint for which he had visited the place of incident. HC Om Prakash was accompanied with the complainant when he reached the police station and gave him the aforesaid complaint. Complainant had come to police station alone and was not accompanied by any other person. He was told by the complainant that the 100 number call was made by her from her own mobile phone which was reflected in DD No.23A dated 16.10.2015, mark X1. He left the police station for the investigation of the present matter State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 9 /17 on the aforesaid date around 7.30 PM alongwith HC Om Prakash and the complainant. He reached the spot within five minutes around 7.30 PM. When he reached the spot, he did not find any public person. When he reached the spot, there was no shop adjacent to the area. At the police station, when he received the complaint, he had only endorsed it. When he reached the spot, he firstly prepared the site plan and the same was prepared by sitting near the spot and it took him ten minutes to prepare the same and the same was prepared at the instance of complainant since she was accompanied them. He did not take signatures of any public person or police official on the aforesaid site plan. When he reached the spot, he tried to find an eye witness however, no eye witness found there. Accused joined the investigation at PS on his own on the same day at around 8.30 PM. He did not remember if he had taken the statement of any person on the spot. He left the spot around 8.00 PM. When he left the spot, only HC Om Prakash accompanied him back to the PS. Complainant had left the spot. On the next day, the complainant was intimated as the statement u/s 164 CrPC was to be recorded. After the aforesaid date, he did not ask the complainant to visit PS. Witness denied all the suggestion put to him.
PW4 ASI Om Prakash deposed that on 16.10.2015, he was posted at PS G.K. 1 as Head Constable. On that day, he received DD No. 23A and upon receiving the same, he reached the spot near H.No. B42 Kailash Colony, and met the complainant. Complainant narrated the matter to him and gave her written complaint to him. Thereafter, he came back to PS and State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 10 /17 subsequently even the complaint reached PS. He reported the matter to the SHO concerned. Thereafter, the matter was marked to IO/SI Sahi Ram. Thereafter, IO prepared the Tehrir and got the FIR registered in the present matter. During investigation, he accompanied the IO and reached the spot. IO prepared the site plan at the instance of the complainant. Thereafter, he along with IO and complainant reached back to PS. Meanwhile accused Vikas Saxena also reached PS. Thereafter, accused was arrested vide arrest memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW3/C. Thereafter, accused was released on bail. IO recorded his statement u/s 161 CrPC.
During crossexamination PW4 deposed that he was on duty from 8.00AM to 8.00 PM. He received the DD entry No.23A around 6.15 PM on 16.10.2015. He did not remember if on 16.10.2015, he had joined investigation in any other matter. The aforesaid DD entry in the roznamcha shows his departure to attend the call from PS. He left for the spot soon after receiving the aforesaid DD entry and reached the spot within five minutes. He did not verify regarding the ownership of the phone number from which the aforesaid call was received. Upon reaching the spot, he met the complainant and one of her office colleague whom she mentioned was working with her. The complainant gave her written complaint at the spot and the same was prepared in the presence of her colleague. She had written the same within ten minutes. It was correct that the place was a running road. At that time, he remained at the spot for about 1520 minutes. He reached the State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 11 /17 spot by his own motorcycle alongwith Const. Lalit. He did not remember how the complainant visited the police station subsequently or by which vehicle. He did not remember the exact time when the complainant reached PS. He had informed regarding the complaint to the SHO around 6.30 to 6.45 PM. IO had not prepared any document at PS in his presence. The tehreer was not prepared in his presence by the IO. IO did not get the FIR registered through him. Complainant visited the PS alone at that time and met the IO. He alongwith IO and complainant left for the spot again around 7.15 PM. They had gone by the car of IO. He did not remember if prior to leaving the PS, IO had recorded the statement of any other person. The site plan was prepared by the IO at the spot. He did not remember if IO had obtained the signatures of any person on the site plan. They came back to PS around 8.00 PM. Complainant left from the spot after preparation of site plan. He did not remember if IO had recorded statement of any other person u/s 161 CrPC. Witness denied all suggestions put to him.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused did not examine any witness in his defence.
State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 12 /17
6. Final arguments were advanced.
7. Ld. APP for the State has argued that in the present matter the guilt of the accused is proved beyond reasonable doubt as all the witnesses have deposed against the accused and there is complete corroboration and therefore, accused is liable to be convicted.
8. On the other hand, Ld. Counsel for accused has argued that in the present matter, accused has been falsely implicated and there is no incriminating evidence against the accused. Ld. Counsel has argued that in the present matter, the accused has been prosecuted on the allegations of the complainant who is his own estranged wife. It is argued that the accused has been falsely implicated and the complainant has levelled false allegations against the accused only due to the reason that the matrimonial relationship between the complainant and accused had become sour. Further, the complainant has not substantiated any of her allegations by leading any cogent evidence or by examining any other public witness since other witnesses cited by the prosecution were formal in nature. It is further argued that the investigation conducted in the present matter is faulty as the complaint had been registered at the instance of complainant without verifying true facts by the IO. It is further argued that the complaint filed by the complainant is bereft of details and the complainant has failed to specify any incident of stalking by her own husband and has not stated any date, time State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 13 /17 or place of any such incident of stalking prior to the date of present complaint. There was nothing to lend support to the story of complainant by any independent witness and the allegations made by the complainant are only figment of imagination. It is further argued that the accused is innocent and he is liable to be acquitted.
9. Accused has been charged of having committed offence of stalking the complainant who was his wife living separately from him and also was admittedly having divorce petitions pending in the court and has been alleged to have committed stalking of the complainant by following her and the same is alleged by the complainant in her complaint Ex.PW1/A. To determine if an offence of stalking is made out on these allegations, it is necessary to peruse Section 354 D IPC, which reads as under: “354D (1) Any man who
(i) follows a woman and contact, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman: or
(ii) monitors the use by a woman of the interest, email or any other form of electronic communication, commits the office of stalking….”
For the purpose of establishing an offence U/s 354 D IPC, following ingredients need to be proved: State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 14 /17
(i) Accused followed or contacted the complainant for fostering personal interaction.
(ii) Such following or contact is repeated. (iii) Complainant clearly expressed/ indicate her disinterest.
Complainant has levelled allegations in her complaint Ex.PW1/A and admitted to have sour relationship with the accused being her husband but has narrated one remote incident of 16.10.2015 wherein she suddenly found her husband outside her office when she was leaving for work and since her husband abused and threatened her, she filed the present complaint. However, during crossexamination, complainant has admitted that the contents of her complaint Ex.PW1/A regarding the fact that she had made a call at 100 number from her mobile phone are not substantiated in respect to the DD No.23A wherein the mobile phone number mentioned is not of the complainant but of the accused. It is argued on behalf of accused that it was the complainant who had picked up the quarrel with accused and therefore, the accused who had made a call at 100 number and even reached the police station but instead of listening to the accused, he was falsely implicated by the police officials at the behest of complainant. Complainant has admitted during her crossexamination that on the day of incident, one person namely Rohit Rajput who was working in the same hospital also met her which is corroborated by the defence of the accused raised by him during his examination u/s 313 CrPC. Further, the complainant has admitted that the site plan was prepared after 1520 days of the incident which is not corroborated State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 15 /17 by the other witnesses. In view of the above submissions of the complainant during her crossexamination and after considering the testimony of other witnesses, I am of the considered view that there are several contradictions in the testimony of the formal witnesses and the complainant. I find merit in the arguments advanced on behalf of accused and the fact that the accused was apprehended when he reached the PS soon after the incident and the aspect that the accused made a call at 100 number is also reflected in DD No.23A mark X1, therefore, in my considered view, the Prosecution has failed to prove the guilt of accused beyond reasonable doubt and has failed to prove that accused was following the complainant with the intent to foster personal interaction repeatedly despite her clear indication of her disinterest or he had ever contacted the woman by any electronic communication. Accused Vikas Saxena is accordingly acquitted of offence U/s 354D IPC.
10. Further, the complainant has failed to depose the alleged indecent words used against her by the accused and also do not substantiate that the said words would amount of insulting the modesty of the complainant. The complainant has nowhere stated that alleged language or words used against her. To constitute an offence u/s 509 IPC, it was required for the prosecution to prove that the accused had occurred some words or made some sound, gesture or exhibited any object or intruded upon the privacy of the complainant and the same was done with the intention to be heard or seen by the women and also with the intention to insult her modesty.
State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 16 /17 However, in the present matter, none of the averments of the complaint revealed any such word, sound or gesture to have been made towards her by the accused. Therefore, in my considered view, offence u/s 509 IPC does not stand proved against the accused and therefore, accused is liable to be acquitted for the aforesaid offence.
11. Further, there are no allegations pertaining to the exact threats being extended to the complainant by accused on the date of incident which criminally intimidated her and therefore, no offence u/s 506 IPC is made out against him. Therefore, accused stands acquitted for all offences.
Announced in Open Court (Sheetal Chaudhary Pradhan) On 27.06.2019 Metropolitan Magistrate02, (Mahila Court)/SED/Saket, New Delhi. Digitally signed by SHEETAL SHEETAL CHAUDHARY CHAUDHARY PRADHAN PRADHAN Date: 2019.06.28 11:34:04 +0530 State Vs. Vikas Saxena; FIR No. 489/2015, PS G.K.I 17 /17