Delhi District Court
Ninder Gautam vs State (Govt. Of Nct Of Delhi) on 27 October, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI
01, (SOUTH) SAKET COURTS : NEW DELHI
Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018
FIR No. : 745/14 (2033545/2016)
P.S. : Saket
U/s : 354/354A/354D/509/34 of IPC
In the matter of :
1. Ninder Gautam
S/o Sh. Sant Ram
R/o House no. 6/4, Sector1
Pushp Vihar, New Delhi
..(CA No. 323/2018)
2. Rajesh Kumar Attri
S/o Late Sh. Pyare Lal
R/o House no. 5/15,
Sector1, Pushp Vihar, New Delhi
...(CA No. 330/2018)
3. Avinash @ Anna
S/o Sh. Benu Ram
R/o House no. 6/14
Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 1/17
Sector1, Pushp Vihar, New Delhi
...(CA No. 329/2018)
...... Appellants
VERSUS
State (Govt. of NCT of Delhi)
....... Respondent
Date of Arguments : 08.10.2018 and 23.10.2018
Date of Order : 27.10.2018
O R D E R
1. These are three appeals filed by appellants/accused namely Ninder Gautam, Avinash @ Anna and Rajesh Kumar Atri aggrieved by the judgment dated 24.7.2018 and order on sentence dated 4.8.2018 whereby appellants were held guilty u/s 509/34 IPC and were sentenced to undergo SI for 30 days with fine of Rs. 1000/.
2. In terms of the allegations, both the daughters of complainant while they were on the way to their house from Safdarjung Hospital, three accused persons started following them and passed comments at them. When they reached their house, they informed of the abovesaid to their mother/complainant. She questioned the accused persons with regard to their misbehaviour when she herself was abused and her modesty was Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 2/17 outraged by the accused persons.
3. Charge u/s 354 of IPC was framed against accused Ninder, whereas charge u/s 354 (D)/506/509 r/w sec. 34 of IPC was framed against all the accused persons.
4. Prosecution in support of its case, examined six witnesses. PW1 is complainant, PW2 and PW3 are daughters of complainant and PW4, PW5 and PW6 are the police officials who participated in investigation of the case.
5. In defence, Sh. Avinash, Ms. Ravina and Mr. Praveen Jha were examined as DW1, DW2 and DW3 respectively.
6. PW2 and PW3 i.e. daughters of complainant more or less gave the similar count of the incident. With regard to the events that transpired after the incident was narrated to the complainant by her daughters i.e. PW2 and PW3 and she had confronted the accused persons, PW2 and PW3 stated about accused Ninder having caught hold the finger of their mother and also abusing them, whereas PW1 i.e. the complainant went ahead with levelling the allegations regarding outraging of her modesty, thereby Ld. Trial court noted that the testimony of prosecution witnesses to the extent as to how the arguments between PW1 and accused Ninder unfolded was not clear and also pertaining to the factum whether accused Ninder had caught/touched/pressed the chest/finger/hand of PW1 and acquitted accused persons u/s 354D/506/354 IPC but convicted them u/s 509/34 IPC which order is under challenge before this court. Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 3/17
7. PW2 and PW3 specifically stated about the presence and participation of appellants in the alleged crime which was informed by them to PW1 who then confronted all the accused persons. It was submitted by Ld. Counsel for appellant Avinash that he was not named by complainant or any other witness and there were no specific allegations against him as PW2 and PW3 have stated about holding of hand of the complainant by accused Ninder and not by accused Avinash.
8. In terms of record, name of accused/appellant Avinash finds specific mention in deposition of complainant as well as of PW2 and PW3. The allegations against appellant Ninder are in addition to the allegations levelled against all the accused persons and the separate charge was framed against him u/s 354 IPC, whereas the Charge against all the accused persons was framed u/s 354 (D)/506/509 alongwith invoking the provision of section 34 of IPC i.e. of sharing the common intention to commit the alleged crime and the prosecution witnesses also stood firm with regard to the allegations levelled against all of them for which they have been convicted by Ld. Trial court . Ld. Counsel for appellant Avinash also pointed out regarding the testimony of PW2 having alleged against the accused persons in passing the comment " Tu Apne Aap Ko........." after she asked them to keep quiet, whereas PW3 in her testimony stated that the said comment was made first and then her sister asked the accused persons to keep quiet.
9. It may be noted that both the witnesses i.e. PW2 and PW3 have Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 4/17 stated about the harassment having been caused to them by the accused persons and also stated about the words /leud comments passed by accused persons. Minor deviation in sequence of uttering the words rather points out towards the truthfulness of their testimony since the witnesses are not expected to give parrot like version and may remember or recall as per the human memory.
10. Ld. Counsel for appellant Ninder submitted that in the statements recorded u/s 161 Cr.P.C. , prosecution witnesses merely stated about the accused persons having bad mouthed and for the first time, the said bad mouthing was elaborated in the statement recorded u/s 164 Cr.P.C. but in the said statement also, there is no mention of the utterances or comments passed by the accused persons except for sentence " Ungli Pakad Kr Kaha Tak Le Jayegi ". Whereas in their deposition before the court, the detailed version of utterances/comments was given . It was submitted that the non mention of the comments in the statements recorded u/s 161 Cr.P.C. may be understandable but the absence of such mention in statement recorded u/s 164 Cr.P.C. and for the first time in the deposition before the court only points out towards the unreliability of the witnesses.
11. Perusal of record reveals the allegations pertaining to passing of bad comments by accused persons in the statements recorded u/s 161 Cr.P.C. with the similar mention in statement of PW2 recorded u/s 164 Cr.P.C. , besides mention of the sentence as noted above. It is not the case Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 5/17 that in the statement recorded u/s 164 Cr.P.C, PW2 had confined her version only to the utterance of the wordings " Ungli Pakad Kr Kaha Tak Le Jayegi " , but had mentioned about the passing of lewd comments by accused persons which were elaborated in the deposition before the court. It cannot be said that the versions were different but merely the elaboration was made in the deposition before the court, which cannot be termed 'the contradictions' or 'the different versions'.
12. Ld. Counsel for appellant also contended with regard to the call at 100 number having been made by PW2 as stated by her in the statement recorded u/s 164 Cr.P.C. , whereas PW3 stated about call having been made by her. No contradiction is found with regard to above. In the statement recorded u/s 164 Cr.P.C. of PW2 as well as in her deposition before the court, she stated that the call was made at 100 number by her sister which was also the averment of PW3 herself.
13. Ld. Counsel for appellant Avinash further sought to point out contradiction, regarding the place of deboarding of bus by PW2 and PW3. In the statement recorded u/s 164 Cr.P.C. , PW2 had mentioned the place of deboarding at Red Light before Saket JBlock Bus Stand, whereas in her testimony in the court she stated about the place of deboarding as Saket Terminal . Both the witnesses i.e. PW2 and PW3 in their deposition before the court have stated about the place of deboarding from the bus at Saket Terminal , whereas PW2 had offered the clarification in her cross examination by submitting that bus stop nearest to her residence was Saket Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 6/17 Terminal and she did not know whether bus stops namely Saket Terminal and JBlock were the same or different, which itself answers the objection raised by Ld. Counsel for appellant Avinash.
14. Reliance is placed upon 2010, III AD (Delhi) 34 Gore Lal Vs. State wherein it was observed that " Variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in essential parts cannot militate against the veracity of the core of their testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of the testimony delivered. While placing reliance upon Tahsildar Singh Vs. State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753 & Leela Ram (Dead) through Dulicahand Vs. State of Haryana AIR 1999 SC 3717, it was further observed that " While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 7/17 technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. In regard to exact time of an incident , or the time duration of an occurrence usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimate in such matters. Again, it depends on the time sense of individuals which varies from person to person. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to be confused, or mixed up when interrogated later on. A witness though Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 8/17 wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on accountof the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him. A former statement though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement,even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness ".
15. Appellant Avinash in his statement recorded u/s 313 Cr.P.C. had stated that they came home after deboarding from the bus and were at home when the police came and he did not know why this case had been filed against him, which according to him was false case, whereas his own witness i.e. DW2 stated about the daughters of complainant entering their house followed by arrival of accused Avinash and Ninder after about 10 minutes and their reaching near the house of complainant alongwith one Parveen, when accused Ninder was beaten by complainant and her daughters and then some one called the police and police van came after two minutes and the matter was resolved.
16. DW3 also stated about accompanying accused Avinash and Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 9/17 Ninder and boarding a bus from Green Park route no. 512 to come to their residence at Pushp Vihar. On their way to their houses, when they reached near the house of complainant, she came out and started shouting upon them who had also beaten accused Ninder. Both the defence witnesses thereby acknowledged the presence of accused Ninder and Avinash outside the house of complainant and complainant having confronted them. Though, not only inconsistency is found in the statements of DW2 and DW3 but the coaccused Ninder who had been allegedly beaten, as stated by both these DWs, himself did not state about any beatings having been given to him by the complainant and Ld. Trial court thereby again rightly discarded the statements of DW2 and DW3 with the detailed observation and rightly considered the same as an attempt on the part of accused persons to create a believable defence as an after thought.
17. On behalf of appellant Rajesh Atri, plea of Alibi was taken. He stated that on the date of incident, he had gone to Kalka Mandir alongwith his two friends and while he was on his way back, they received a call from police asking him to return to his house. First he had gone to P.S. and when he called on the same number, he was told to come to his house. When he reached at the house, several persons were standing outside his house. Police then took him and other two accused in a tempo to P.S. At P.S. also, he told the police that he was not present with other accused persons as well as two of accused also told the police that their friend Parveen had accompanied them.
Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 10/17
18. According to defence taken by appellant Rajesh Atri, other co accused persons had informed the police with regard to the presence of one Parveen with them and not of the appellant herein but police did not listen to them. It is part of record that other coaccused person i.e. accused Avinash did not refer to presence or absence of accused/appellant Rajesh Atri in his statement whereas coaccused Ninder rather stated about the presence of appellant Rajesh Atri also alongwith them as according to him all three of them had come home from the bus and were at their home when police came. Suggestion given to PW3 that accused Ninder and Rajesh were going from another bus and they also deboarded at the same bus terminal, in fact corroborates the factum of presence of accused Rajesh also, contrary to his plea of alibi.
19. The witness, with whom, appellant Rajesh Atri stated to have gone to Kalkaji Mandir was examined as DW1, however his testimony was rightly not believed by Ld. Trial court with observation that the certificate produced by DW1 on record regarding his absence from office w.e.f. 10.10.2014 to 14.10.2014 on the letter head of company issued in the name of authorized signatory did not bear any signature of the said person nor any company seal was there on the said certificate which was not duly authenticated certificate, therefore had no evidentiary value.
20. Ld. Counsel for petitioner submitted that no public witness has been cited to prove the alleged incident. It may be noted that in such kind of matters even the solitary statement of complainant is held to be Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 11/17 sufficient if the same inspires confidence, whereas in the instant matter, complainant and her daughters who were the victims have corroborated the statements of each other and also with regard to informing of the incident by PW2 and PW3 to PW1 upon which she had confronted the accused persons.
21. Reliance is placed upon Criminal Appeal No. 1432/2010, dated 16.5.2013 titlted as Suraj Kumar Thakur etc. Vs. State, wherein it was observed that " it is well settled that in a criminal trial, even a solitary witness can form the basis of conviction. Law does not postulate or require that a particular number of eye witness should depose before conviction of murder can be sustained. It is not the number but credibility which can be attached to a statement that matters. Even if some minor contradiction or improvement has taken place that does not affect the sub stratum of the case. In fact, there are catena of decisions to the effect that human memory fades away with lapse of time and some minor inconsistencies and discrepancies are bound to be there"
22. Reliance is further placed upon Rakesh Kumar Chola @ Rajesh Vs. State Crl. Appeal No. 226/2010 dated 21.4.2014 wherein it was observed that " very cogent and convincing ground would be required to discard the evidence of injured/complainant since it is difficult to believe that he would implicate the persons other than the real culprits and that the evidence of that witness alone, was sufficient to bring home the guilt of appellants even if one were to exclude from consideration, the Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 12/17 evidence of other PWs".
23. Ld. Counsel for appellant Ninder submitted that there are no allegations levelled against the accused persons while they were travelling in the bus nor after their deboarding till they reached the locality . Vulnerable time was prior to entering the locality when no such alleged remarks were made by any of them , which is suggestive of the unreliability of version of prosecution witnesses.
24. PW2 and PW3 have stated about the accused persons following them since the time they deboarded the bus and it remains for the accused persons to find out the opportunity or to decide to act inappropriately as per their own wishes. Rather as stated by PW3 in her cross examination, no one was present at the time of passing of alleged comments as the accused persons started commenting after entering in the locality which speaks volumes of the intention of the accused persons contrary to the argument of Ld. Counsel for appellants as they started passing the comments when they found the time /place " vulnerable " in own words of counsel for appellant.
25. The other contention raised by counsel for appellants was with regard to intention or knowledge on the part of appellants that they were likely to insult the modesty of PW2 and PW3 and the allegations as submitted fell short of the fulfillment of criteria u/s 509/34 IPC. It was also submitted that Ld. Trial court has acquitted all the accused persons u/s 354D as well as u/s 506 IPC , whereas accused Ninder has also been Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 13/17 acquitted u/s 354 IPC but all the accused persons have been convicted u/s 509/34 IPC. As submitted, based upon the same evidence, Ld. Trial court did not find the evidence sufficient against the accused persons for conviction u/s 354/354D/506 IPC but found it sufficient only for the offence u/s 509 IPC. As submitted, the entire testimony has to be treated in the same way and the analogy applied for the other offences should have been applied in toto. As testimonies of PW1, PW2 and PW3 had been held to be not consistent by Ld. Trial court and thus prosecution failed to prove its case, but at the same time Ld. Trial court failed to consider the same inconsistency regarding the allegations u/s 509 IPC.
26. At the cost of repetition, it may be stated that the testimony of PW2 and PW3 remained consistent and both of them gave consistently similar statements from the time the accused persons started following them and till they reached their house and informed PW1 upon which PW1 confronted the accused persons. Defence witnesses i.e. DW2 and DW3 even corroborated to the extent of presence of accused Ninder and Avinash at that point of time, though according to them complainant had been shouting and had also beaten accused Ninder. Thereafter slight deviation in the testimonies of prosecution witnesses has been noted by Ld. Trial court with the observation that " how the argument between PW1 and accused Ninder unfolded was not clear and also regarding as to whether accused Ninder had caught/touched/pressed the chest/finger/hand of PW1" . Considering the allegations being serious and the slight Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 14/17 deviations in the testimonies of prosecution witnesses, Ld. Trial court decided to accord the benefit to accused persons, instead of ignoring the minor deviations. The minor deviations in the testimonies of the witnesses are bound to happen due to passage of time and due to different ability to preserve the memory. Here remains no doubt with regard to the happening of the incident qua the accused persons passing lewd comments and their confrontation by PW1. For the rest of the allegations, Ld. Trial court has already exercised the discretion in favour of accused persons for the justified reasons as noted in judgment.
27. Reliance is placed upon Sidhan Vs. State of Kerala 1986, Cr.L.J. 470, wherein it was observed that " Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact, such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If , on the other hand, these witnesses have given evidence with mechanical accuracy that must have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the courts if the evidence of the witnesses is found acceptable on broad probabilities. The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 15/17 keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time".
28. Further in 2012 VI AD (Delhi) 344 Mohit & Ors. Vs. State while placing reliance upon State of Punjab Vs. Gurmit Singh, it was observed that " in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. If the investigating officer did not conduct the investigation properly or was negligent how can that become a ground to discredit the testimony of the prosecutrix. The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 16/17 involving sexual molestations."
29. In the instant matter, as rightly noted by Ld. Trial court, mens rea need not necessarily to be proved by direct evidence and can be inferred from the circumstances in which the offence was committed. In the instant matter, three boys deliberately were walking alongside two young girls and had made gender specific comments, which were clearly audible to the girls. When such comments were made in the presence of two young girls which was clearly intended to be heard by the girls, who were instantly affected by it, that is why they started walking swiftly and complained about the accused persons to their mother . A question was posed by Ld. Trial court as to whether the accused persons would have made these comments amongst themselves in the absence of those girls and rightly observed the answer to be in Negative and thereby rightly inferred that all the accused persons with common intention to insult the modesty of the daughters of complainant passed inappropriate comments at them intending that the comments be heard by them and thereby rightly convicted the appellants/accused persons u/s 509/34 IPC. The judgment passed by Ld. Trial court is well reasoned and no substance is found in the appeals, which are accordingly dismissed.
Digitally signed SAVITA by SAVITA RAO
Date:
RAO 2018.10.27
11:53:47 +0530
Announced in the Open Court (Savita Rao)
Today on 27.10.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Appeal Nos. : 323/2018, 330/2018 and 329/2018 17/17