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Delhi District Court

Rajesh Kumar vs The State on 30 October, 2013

     IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
          ADDL. SESSIONS JUDGE­02: SOUTH EAST
               SAKET COURT: NEW DELHI 


IN RE:                                           ID No.02406R0147182013
                                                 Cri. Appeal No. 18/13


Rajesh Kumar 
S/o Sh. Roshan Lal 
R/o 2/4, Bazar Lane, Bhogal 
New Delhi.                                              ..... Appellant


                          VERSUS 


The State                                        .....  Respondent
__________________________________________________________
Date of Institution                :     07.06.2013
Date when the arguments were heard :     15.10.2013
Date of Judgment                   :     30.10.2013


O R D E R 

This is an appeal under Section 374 (3) of The Code of Criminal Procedure directed against judgment dated 02.05.2013 and order on sentence dated 07.05.2013 passed by Ld. MM (Mahilla Court), South­East, New Delhi.

In the intervening night of 16th ­ 17th April, 2011 at 11.20 pm, complainant came to police post along with sister of her father namely Anita Mishra and gave following statement to ASI Subhash CA No. 18/13 1 of 4 Chand :­ "I am residing at address mentioned above i.e. 214, Bazar Lane, Near Rama Tent House, Bhogal, New Delhi along with sister of my father and her husband. My mother expired in my childhood, while my father is handicap. I am a student of eighth class pursuing my studies in Senior Secondary school (Co­Education), Bazar Lane, New Delhi. Today i.e. 16.01.2011 between 9.15­9.30 pm, I went downstairs to switch on booster pump to lift water. After switching it on, when I was returning to my house, Rajesh (accused) son of our landlord met me in stairs. He insisted me to have a snap (photo) with him. I refused to do so. Rajesh caught hold of me by hand and dragged inside room of his house. He threw me on the floor and gagged my mouth. I set him aside by kicking him and ran away by unlatching the doors. I disclosed all this incident to sister of my father (Anita Mishra). Accompanying her, I have come to police post to report the matter".

IO made endorsement (Ex.PW3/A) on that statement, on the basis of which FIR no. 16/2011 was registered in PS Hazrat Nizamuddin, New Delhi.

The appellant / accused was served with a notice under Section 251 Cr.P.C. for offence punishable under Section 354 IPC. Accused pleaded not guilty and claimed trial. After completion of trial, appellant was convicted for the that offence and was sentenced to rigorous imprisonment for one year vide impugned order.

It is submitted by Ld. Counsel for appellant that the latter has been convicted by the trial court on the basis of presumptions, CA No. 18/13 2 of 4 surmises and conjectures. There were so many contradictions and improvements in the testimony of only eye­witness i.e. complainant, who was examined as PW­1. Ld. Counsel relied upon a case titled as Ramesh Kumar Vs. State of Punjab 1996 (3) CC Cases 480 (HC) where relying contradictions in the statement of Bachan Kaur, a material witness, our own High Court acquitted the appellant / accused and a case titled as Jeet Pal & anr. Vs. State 1996 (3) CC Cases 298 (HC) where it was mandated that an omission of important facts in the FIR effecting the probabilities of the prosecution case, was relevant under Section 11 of The Evidence Act.

There is no quarrel over the findings returned by our own High Court, in cases referred above. So far as contradictions / improvements in the statement of complainant in this case is concerned, though there are some improvements in the statement given by complainant in the court qua her statement given to police. For example, it was not disclosed by said witness in her statement (Ex.PW1/A) that no one could hear her cry, when she called her bua (father's sister) due to sound of DJ and hence none came for her rescue. She did not disclose to the IO in that statement that accused touched her cheeks or tried to kiss her. Similarly, she did not disclose in her statement (Ex.PW1/A) that accused forced her to the bed or one boy namely Ashish came upstairs, while singing. It is not in dispute rather admitted by the CA No. 18/13 3 of 4 accused in his statement under Section 313 Cr.P.C. that complainant was their tenant. She went downstairs to turn on water motor or he i.e. accused objected to this, asking her to send her fufa (husband of father's sister) who had not paid arrears of rent. The improvements pointed out by Ld. Defence counsel are not so material which could make testimony of complainant unreliable.

A man cannot iterate the incident happened before his / her eyes in a stereotype manner. Some improvements are bound to occur whenever he/she repeats it. It is not denied that incident was reported to police shortly after it occurred. There is no evidence to show that story was manipulated by the complainant. No reason to disbelieve PW­1.

I do not find any illegality in convicting the appellant / accused. Appeal to that extent is dismissed.

To come for consideration on sentence on 06.11.2013.

Announced in the open court       (RAJENDER KUMAR SHASTRI) 
today i.e. 30th October 2013           ASJ­02/SE/ SAKET COURT 
                                                   NEW DELHI 




CA No. 18/13                                                                        4 of 4