Delhi District Court
Anwar vs State (N.C.T.Of Delhi) on 28 September, 2018
IN THE COURT OF ADDITIONAL SESSIONS JUDGE03
(NE), KARKARDOOMA COURTS, DELHI.
PRESIDED BY: LALIT KUMAR, DHJS
CA No. 02/18
Anwar
s/o Sh.Jainuddin
r/o H.No.60A, Gali no.1
New Mustafabad, Delhi. Appellant
Versus
1 State (N.C.T.of Delhi)
2 Gulshan
w/o Yasin
r/o H.No.60A, Gali no.1,
New Mustafabad, Delhi. Respondent
Date of assignment : 16.02.2018
Date of Arguments : 30.08.2018
Date of Pronouncement : 28.09.2018
CA no. 02/18 Anwar Vs State 1/12
Judgment :
1 By the present appeal, the appellant challenges the impugned
judgment dt. 16.11.2017 convicting him for offences u/s 354/323 IPC in FIR no.220/13 registered at PS Gokalpuri and the order on sentence dated 30.01.2018 directing him to undergo simple imprisonment for a period of one year and fine of Rs.500/ for offence u/s 354 IPC and simple imprisonment for a period of 6 months for the offence u/s 323 IPC.
2 The brief facts, which are relevant for deciding the present appeal are that on 29.05.2013 at about 7.30 p.m. when the respondent/complainant was alone in her house, appellant/accused Anwar who resides in the first floor came towards her and started abusing her and also gave beatings to her. The appellant also misbehaved with respondent/complainant on account of which the respondent/complainant was compelled to file the present case.
3 After completion of investigation, charge sheet was filed against both the appellants u/s 354/323 IPC at PS Gokalpuri. On 25.02.2014, cognizance of offences were taken by Ld. Trial Court. Thereafter, the requirement of the provision of Section 207 Cr.P.C. was completed.
CA no. 02/18 Anwar Vs State 2/12
4 On 23.01.2015, notice against the above said
appellant/accused was given to which he claimed not guilty and
claimed trial.
5 In order to substantiate its case, prosecution has examined five
witnesses. All the incriminating evidence was put to the appellant/accused persons while recording his statement u/s 313 Cr.P.C. Appellant/accused has examined two witnesses in his defence I.e.D.W1 Sh.Zainuddin and D.W2 Shamsher Khan. After minutely going through the testimony of witnesses, vide impugned order, the appellants were held guilty for offence u/s 323/354 IPC and sentenced as stated above.
6 Feeling aggrieved by the impugned order, the present appeal has been preferred by the appellant/accused.
7 Notice of the appeal was issued to the respondents and the Trial Court Record was called for.
8 I have heard the submissions made by Sh.A.A.Khan, Ld.Counsel for appellant/accused, Sh.Zenul Abedeen, Ld.Addl.PP for the State and respondent no.2/complainant. I have also perused the record carefully.
CA no. 02/18 Anwar Vs State 3/12 9 It is the settled proposition of law that ordinarily, sitting in
appeal does not reappreciate the evidence that already appreciated in detail by the Ld.Trial Court for the reason that Trial Court has also an opportunity of observing the conduct and demeanor of the witness. Of course, the same is provided the Trial Court has not committed an error of such an impact that the same was resulted in miscarriage of justice. Reference may be held in judgment of Apex Court in Hussain and Another Vs Union of India and Ashu Vs State of Rajasthan which is dated 19.03.2017 passed in Crl.App. no.509/17.
10 It is submitted by Ld. Counsel for appellant/accused is the brother in law(devar) of the respondent/complainant and the appellant has been falsely implicated in this case on the pretext of partition of the property and in this regard, Sh.G.N.Pandey, Ld.ASJ has passed eviction order and also passed the order to recover the damages/mesne profits against the respondent/complainant and her husband @ Rs.1000/p.m.and, therefore, the respondent/complainant has booked the appellant/accused in this case. It is further argued by the Ld.Counsel for appellant/accused that the as per the medical evidence, there is only superficial multiple linear abrasion at bilateral forearms and doctors opined that 'general surgery final opinion can not be given as patient was absconded'. It is argued that appellant/accused has CA no. 02/18 Anwar Vs State 4/12 never molested, beaten up the respondent/complainant. There are material contradictions in the statement of the respondent/complainant. Ld.Counsel for the appellant/accused has relied upon judgments titled as ' Rajpal Vs State of Haryana 2012(1) CC Cases (HC) 111.
11 Rebutting the submissions, Ld. APP for the State has submitted that there is no infirmity in the impugned order. The Ld. Trial Court has duly appreciated the evidence led on record by prosecution. It is, therefore, prayed that this appeal is liable to be dismissed.
12 In order to substantiate the aforesaid case of the prosecution, the complainant PW1 Smt.Gushan who unfolded that in the year 2013 on the date of incident, she was sitting near the door of her house when the appellant/accused came from the first floor and starting abusing her and also gave beatings to her. He hit her on her head, opened her salwar and also torn her wearing clothes. When the complainant narrated the above incident to her father in law, he supported the accused and abused her and when her son Samir asked her father in law as to why he was saying such thing, he threatened to kill her son. Appellant/accused is the brother in law of the complainant and after the filing of the present case, her husband gave CA no. 02/18 Anwar Vs State 5/12 divorce to her. Appellant/accused used to harass the complainant on daily basis and he also used to beat her children. Complainant made complaint against the appellant/accused Anwar and her statement Ex.PW 1/A was recorded.
13 The appellant/accused has assailed the order of Ld. Trial Court on the following material grounds :
(i) The Ld. Trial Court has passed a cryptic impugned judgment dt.16.11.2017 and conviction dt.30.01.2018 without discussing the material evidence on record.
(ii) The Ld.Trial Court has casually and capriciously disposed off the matter without discussing and referring to the points cited on behalf of the appellant.
(iii) The Ld.Trial Court has failed to appreciate the fact that the state machinery has been used by the complainant to accomplish his ill moto.
(iv) The Ld.Trial Court has failed to appreciate the inconsistent and improved statements of complainant which materially contradicts her earlier statement.
(v) The Ld.Trial Court has failed to appreciate the fact that there was civil dispute pending since 28.09.13 between the father of the appellant/accused and the respondent/complainant and in order to pressurize them to withdraw the same, present FIR has been used as CA no. 02/18 Anwar Vs State 6/12 tool.
(vi) The Ld.Trial Court has not applied legal and judicial mind while disposing of the matter.
14 At the outset, it has been observed that with regard to offence u/s 354 IPC, there are apparent improvements and contradictions in the statements of P.Ws particularly statement of PW1 complainant Smt.Gulshan made before the court from the statement made to police Ex.PW 1/A. Improvements
(i) PW1 Complainant has stated in her statement Ex.PW 1/A made before the police that during the incident, her wearing clothes got mismanaged, whereas PW1 in her statement before the court has deposed that accused hit on her head and opened her salwar and also torn her wearing clothes.
(ii) PW1 Complainant in her statement before the court has deposed that she narrated the incident to father of appellant/accused and stated to her that "Abhi to teri salwar phadi hai, ab to tere sath rape karunga, main bataunga tujhe mard kaisa hota hai", whereas this fact does not find mention in the statement of the complainant Ex.PW 1/A made to the police.
CA no. 02/18 Anwar Vs State 7/12 (iii) PW1 Complainant in her statement before the court has
deposed that thereafter her father in law Jainuddin told her that "
makan khali kar de chupchap, nahi to teri ladkiyo ka bhi wahi haal karunga jo tera kiya hai" , whereas this fact has not been mentioned in the statement of the complainant Ex.PW 1/A made to the police.
(iv) PW1 Complainant in her statement before the court has deposed that when her son Sameer asked her father in law as to why he was saying such things about his sisters, her father in law threatened to kill her son Sameer, whereas this fact does not find mention in the statement Ex.PW 1/A made to the police.
15 From the abovesaid improvements, it is clear that the statement of the complainant Ex.PW 1/A made before the police, upon which the present FIR has been registered does not inspire confidence and also does not fulfill the ingredients of section u/s 354 IPC. There is no allegation of outraging of modesty of complainant and this allegation of outraging of her modesty has been made for the first time in her deposition in court, which is an afterthought.
16 Moreover, from the perusal of the judgment of the Ld.Trial Court, it reflects that the Ld.Trial Court while passing the judgment has overlooked the statement of the complainant Smt.Gulshan Ex.PW 1/A made before the police and has only considered the statement of CA no. 02/18 Anwar Vs State 8/12 the complainant made before the court. Therefore, so far as the judgment passed by the Ld.Trial Court qua the allegations u/s 354 IPC is perverse and can not be sustainable in the eyes of law.
Contradictions:
Complainant PW1 has deposed that at the time of incident, no tenant was residing in the house, whereas appellant/accused in his defence evidence has examined Shamsher Khan as D.W2 who has deposed that he has been residing in his neighbourhood since last 13 14 years and some tenants were also residing in the said property.
17 As far as the offence u/s 323 IPC is concerned, DD no.12A dt. 29.05.2013 which was made by PW1 Complainant Smt.Gulshan regarding beating also corroborates the version of PW1 Complainant that she was given beatings by the appellant/accused. Moreover, no suggestion has been given by the appellant/accused to controvert this allegation.
18 Furthermore, the injuries as sustained by the respondent/complainant during the incident by the appellant/accused has duly been proved by PW5 Dr.Parmeshwar Ram, DMS, GTB hospital who has proved the MLC vide no.A2051/13 as Ex.PW 5/A wherein it has been opined by the doctor that 'patient Gulshan had sustained superficial multiple linear abrasion at bilateral forearms'.
CA no. 02/18 Anwar Vs State 9/12
19 It is further to be seen that during cross examination of PW5
Dr. Parmeshwar Ram, DMS, GTB hospital, he has deposed that
injuries shown in the MLC can be self inflicted also. The appellant/accused has failed to explain as to when no incident had taken place then how it can be said that there are injuries on the person of the respondent/complainant. Even no suggestion has been given by the appellant/accused in this regard. Thus, it gives strength to the version of PW1 complainant Smt.Gulshan.
20 It is worth to be mentioned that the appellant/accused , on one hand took a stand that he has been falsely implicated by the respondent/complainant because she wanted to extort money from his father, in the statement of accused recorded u/s 313 Cr.PC, but on the other hand, the appellant/accused has neither put any question nor any suggestion to PW1 in this regard.
21 Apart from this, one more aspect which is required consideration that appellant/accused has examined DW1 Zainuddin who is the father of the appellant/accused with regard to the fact that he did not have the knowledge about the present incident as he was not present at that time is concerned, DW1 Zainuddin has deposed that after six months of marriage of his son Yasin with respondent/complainant Gulshan, she had started harassing his son CA no. 02/18 Anwar Vs State 10/12 and other family members in order to grab the property and in this regard D.W1 Zainuddin had given a written complaint to ACP, Women Cell, Nand Nagri against respondent/complainant Smt.Gulshan. Therefore, he himself has controverted this fact during cross examination by Ld.Addl.PP by admitting that he did not know anything about the present incident as he was not present at that time. Thus, the testimony of DW1 is not reliable and trustworthy.
22 Similarly, the other defence evidence i.e. DW2 Shamsher Khan who is the neighbour of the accused also did not support the version of appellant/accused by stating that there was no quarrel between the respondent/complainant Gulshan and the appellant/accused, whereas during his cross examination by Ld.Addl.PP for the State, he admitted his presence at his home at the time of incident and also admitted that respondent/complainant had called at 100 number in his presence. It is not explained as to when there was no quarrel/incident had taken place then for what purpose the respondent/complainant had made a call at 100 number. Thus, it raises doubt about the testimony of defence evidence as led by the appellant/accused in his defence.
23 So far as the judgment as relied upon by the appellant/accused is concerned, the aforesaid case law holds the correct proposition of law , but distinguished from the facts and circumstances of the case and, therefore CA no. 02/18 Anwar Vs State 11/12 this judgment does not help the appellant/accused.
24 Keeping in view the facts and circumstances of the case, the appeal of the appellant/accused is partially allowed with respect to offence u/s 354 IPC and the appeal of the appellant/accused with respect to offence u/s 323 IPC is dismissed. The impugned judgment of the Ld.Trial Court dt.16.11.2017 and the order on sentence dt.30.01.2018 with regard to offence u/s 354 IPC are set aside and consequently appellant/accused is acquitted for the offence u/s 354 IPC. However, the impugned judgment of the Ld.Trial Court dt.16.11.2017 and the order on sentence dt.30.01.2018 with regard to offence u/s 323 IPC are upheld. Copy of the judgment be given to the appellant/accused free of cost. TCR be sent back to the concerned court along with copy of judgment.
Appeal file is consigned to record room.
Digitally
signed by
LALIT
LALIT KUMAR
KUMAR Date:
2018.09.28
16:42:13
+0530
ANNOUNCED IN OPEN COURT (LALIT KUMAR)
TODAY ON 28.09.2018 ADDL. SESSIONS JUDGE03
(NE)/KKD COURTS, DELHI.
CA no. 02/18 Anwar Vs State 12/12