Delhi District Court
State vs Mobin on 8 January, 2021
IN THE COURT OF SHRI NAVEEN GUPTA
ADDL. SESSIONS JUDGE - 05, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Crl. Appeal No. 32/19
Case ID No. 107/19
PS Seemapuri
In the matter of: -
State
Through Ld. Addl. Public Prosecutor ..... Appellant
Versus
Mobin
S/o Sh. Nisar
R/o A-329, Shahid Nagar, Sahibabad,
Ghaziabad, UP ..... Respondent
Date of institution : 17.05.2019
Date of reserving order : 08.01.2021
Date of judgment : 08.01.2021
JUDGMENT
1. By this order, the Court has decided the appeal filed by the State through Public Prosecutor, challenging the judgment dated 23.04.2019 passed by Ld. Mahila Court-02, Shahdara, Karkardooma Courts, Delhi, whereby the Court has acquitted the respondent namely Mobin Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 1 of 13 PS Seeemapuri (hereinafter referred as 'accused') for the commission of offence punishable under Sections 354/354-A/341/ 506 of the Indian Penal Code (for short 'IPC').
2. The facts and circumstances leading to filing the present appeal are that on the statement of Ms. 'N', an FIR bearing No. 401/17 was registered at PS Seemapuri on 28.06.2017, wherein it was recorded that the accused had restrained the complainant in her way and outraged her modesty. He also made objectionable remarks to her. Thereafter, he went away from the spot. After some time, he again came in front of house of the complainant and threatened her to kill. After conclusion of the investigation, challan was filed against the accused for trying him for commission of offence punishable under Sections 354/354- A/341/506 IPC.
3. After compliance of provision under Section 207 Cr.P.C., Ld. Trial Court, vide order dated 03.07.2018, framed charge against the accused under Sections 354/354-A/341/506 IPC to which he pleaded not guilty and claimed trial.
4. In its evidence, prosecution examined ten witnesses. PW-1 is the complainant, who submitted that on 28.06.2017, when she was riding her scooty in front of her house, the accused came on his bike and stopped her scooty by parking his bike in front of her scooty. He came down of his bike and held her hand and stated that 'tu meri hai aur tu meri rahegi'. She immediately raised an alarm, on which her husband came out of the house. She narrated him the entire incident. After sometime, accused again came in front of her house and stated that if Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 2 of 13 PS Seeemapuri she went to the police, he would kill her. On this, her husband made a call to the police. After five minutes, the accused left. Accused again returned in front of her house, on which her father and husband apprehended the accused. In the meantime, police officials also arrived at the spot. They handed over the accused to police officials.
5. PW-2 is husband of the complainant. He deposed that his wife came and told him that the accused had misbehaved with her, therefore he made a call at 100 number. He was cross-examined by Ld. APP for the State.
6. PW-3 is Ct. Rahul Kumar. He accompanied HC Rajiv, 1st Investigating Officer. He deposed about steps taken by the IO during initial investigation.
7. PW-4 is father of the complainant. He deposed that on the day of incident, he was at his house at around 08:00 pm. His daughter was driving the scooty. In the meantime, he saw that accused came to his daughter and caught hold her hand. He tried to embrace her. When his daughter pushed him, accused started mishandling with his daughter. He immediately came down and rushed to the spot. He slapped the accused. After sometime, police came at the spot and took them and accused to the police station.
8. PW-5 is mother of the complainant. She deposed almost on the similar lines as stated by PW-4.
9. PW-6 is HC Rajiv Kumar, 1st Investigating Officer. He deposed about the steps taken by him during initial investigation.
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10. PW-7 is ASI Rakesh Kumar, Duty Officer. PW-8 is ASI Chap Singh Khokhar, 2nd Investigating Officer. He submitted about the steps taken by him during further investigation into the present case.
11. PW-9 is Dr. Varun Solanki. He tendered MLC Ex.PW-9/A of the accused. PW-10 is HC Rajender. He tendered DD No. 109-B Ex.PW- 10/A in respect of 100 number call made on 28.06.2017 at about 09:15 pm.
12. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C., wherein accused claimed himself innocent. He stated that he had been falsely implicated in this case. He had not committed any offence whatsoever. He opted not to lead defence evidence.
13. After conclusion of the trial, Ld. Trial Court acquitted the accused vide the impugned judgment dated 23.04.2019. Ld. Trial Court has inter- alia observed that there are material contradictions in the testimonies of prosecution witnesses. Further, the testimonies of star witnesses of prosecution are not trustworthy and do not inspire the faith of the Court. Hence, the prosecution has filed this appeal challenging the abovesaid judgment.
14. Arguments have been heard on the appeal. Ld. Addl. PP for the State has argued that the complainant (PW-1) was married with PW-2 for seven years prior to the year 2018. The accused has produced a nikahnama Ex.PW-1/D-3 between himself and PW-1 of dated 13.08.2013. Thus, the said nikahnama does not establish any legal marital relationship between accused and PW-1 during existing valid Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 4 of 13 PS Seeemapuri marriage of PW-1 and PW-2. Moreover, the said nikahnama did not permit any person to outrage the modesty of a lady at public place. He has further argued that Ld. Trial Court has wrongly held that there were material contradictions in the testimonies of prosecution witnesses. Ld. Addl. PP has lastly argued that the prosecution has proved its case beyond reasonable doubt, hence, the accused should have been held guilty of commission of the offence punishable under Sections 354/354-A/ 341/506 IPC.
15. Ld. Counsel for the respondent/accused has argued that there were material contradictions in the testimonies of prosecution witnesses. The complainant had falsely implicated the accused in the present case. In these circumstances, Ld. Trial Court has rightly acquitted the accused.
16. First of all, the Court stands guided by the precedent laid down by the Hon'ble Supreme Court in Ghurey Lal v. State of U.P., (2008) 10 SCC 450, whereby the Court has enumerated the guidelines to be kept in view while deciding an appeal against the order of acquittal:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 5 of 13
PS Seeemapuri
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
17. Now, the Court takes up aspects raised by Ld. Addl. PP and other relevant aspects one by one. In the present case, PW-1/ complainant, PW-2/husband of complainant, PW-4/father of complainant and PW- 5/mother of complainant are star witnesses. From the testimony of PW- 1, it can be made out that on the day of incident, the accused had come to the complainant thrice. Though, the complainant, in her examination-in-chief, did not depose about the time of first appearance of the accused to her, when he stopped the scooty driven by the complainant. However, in her complainant, Ex.PW-1/A, she has mentioned the time as 08:00 pm on 28.06.2017. PW-1 has deposed that at that time, she immediately raised an alarm on which her husband came out of the house and she narrated him the entire incident. After sometime, accused again came in front of her house. Her husband made a call to the police. As per the DD entry Ex.PW-10/A, the said call was made at 09:15 pm. PW-1 has further deposed that after five minutes, the accused left. Accused again returned in front of her house, on which her father and husband apprehended the accused.
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18. The prosecution has examined PW-2, PW-4 and PW-5 to corroborate the testimony of PW-1. But, surprisingly, PW-2 deposed in his examination-in-chief that his wife came and told him that accused had misbehaved with her, therefore he made a call at 100 number. He was cross-examined by Ld. APP for the State. During his such cross- examination, he admitted the suggestions put to him. Further, during his cross-examination conducted on behalf of accused, he stated that his wife was riding the scooty alongwith her sister Simran, aged 12 years. PW-1 was not visible to him when she was riding the scooty. Nothing had happened in his presence.
19. The abovesaid testimony of PW-2 leads to infer that he did not witness the alleged incident of outraging the modesty of complainant by accused. Furthermore, PW-2 in his examination-in-chief did not state anything about alleged threat given by the accused to PW-1. Further, as per PW-2, PW-1 was accompanied with her sister Simran at the time of alleged incident. But, prosecution did not examine sister of PW-1 namely Simran for the reasons best known to it. In these circumstances, the testimony of PW-2 does not provide any corroboration to the testimony of PW-1.
20. PW-4 deposed that he was standing at the terrace of his house at around 08:00 pm. He saw that the accused started mishandling with his daughter/PW-1. He immediately came down and rushed to the spot. He slapped the accused. After sometime, police came at the spot and took them alongwith accused to police station. First of all, there is contradiction in the testimony of PW-1 and PW-4 in respect of location of the house of PW-4 viz a viz the matrimonial house of PW-1. PW-1, Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 7 of 13 PS Seeemapuri during her cross-examination, stated that her father resided at house no. E-48/136, which was adjacent (barabar wale makan me) to her house i.e. house no. E-48/305. While, PW-4 stated that 3-4 houses were situated between his house and matrimonial house of his daughter. This aspect becomes material in the present facts and circumstances as PW- 1 has claimed that she was riding her scooty in front of her house and PW-4 has claimed that he saw the alleged incident from the terrace of his house. It has not been explained by PW-4 as to whether the place of incident was so proximate from terrace of his house that he could clearly observe the alleged incident.
21. PW-4 has claimed himself to be witnessing the incident allegedly committed by the accused since inception i.e. at around 08:00 pm. Rather, as per his claim, he had rushed to the spot and slapped the accused. But, PW-1 did not depose about presence of PW-4 at the spot of incident till the call was made to the police at 100 number by her husband. Further, PW-2 did not depose, at all, about the presence of PW-4 at the spot. PW-6, too, stated that the complainant alongwith her husband handed over the accused to him. PW-8, 2nd Investigating Officer, deposed during his cross-examination that he did not know if father of the complainant was also present at the spot. He further stated that for the first time, complainant stated about the presence of her father at the spot in her statement recorded under Section 164 Cr.P.C. The abovesaid observations raise serious doubt on the testimony of PW-4. It is pertinent to note that surprisingly, PW-4 did not depose about presence of PW-2/husband of complainant at the spot.
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22. Further, the testimony of PW-5/mother of complainant is of no value to the case of prosecution. She has categorically denied the suggestion put to her by Ld. APP for the State that at the time of incident, she was on the roof of her neighbor. She voluntarily stated that her husband was standing on their roof. During her cross-examination conducted on behalf of the accused, she admitted the suggestion put to her that her daughter came to home and she had not seen any incident. Thus, it is clear that PW-5 did not witness the incident.
23. In view of the abovesaid observations, this Court is of the opinion that the testimony of PW-1 lacks convincing corroboration. So far as, testimony of PW-1 is concerned, she deposed that no public person came at the spot because it was raining at that time.
24. PW-1, in her examination-in-chief, deposed that after this incident, accused again came in front of her house alongwith his friends. On that day, she was standing on her roof and on seeing her, he started breaking beer bottles in front of her house. The complainant did not mention the date and time of the abovesaid visit of the accused to her house. It is not the case of prosecution that the complainant had moved any complaint in respect of the abovesaid incident. Thus, the said part of testimony of PW-1 does not prove anything against the accused beyond reasonable doubt. Same would be the observation of the Court in respect of allegation of PW-1 against the accused regarding his other visits.
25. In her cross-examination conducted by Ld. APP for the State, she admitted the suggestion put to her that due to snatching of her hand by Criminal Appeal No. 32/19 (I.D. No. 107/19) The State v. Mobin Page 9 of 13 PS Seeemapuri the accused, the sleeves of her wearing suit were torn. First of all, the testimony of PW-1 recorded during cross-examination conducted by Ld. APP for the State does not provide any strength to the case of prosecution as the same is merely an admission of the suggestions put to her. At this stage, the Court stands guided with the observations made by Hon'ble Delhi High Court in Amar @ Bahadur v. State, 120 (2005) DLT 267, that:
9. It is to be seen if the said testimony of the witness, more particularly that part of the testimony which is recorded pursuant to the questions put by the prosecutor in cross-examination pursuant to the permission granted by the Court to do so, can be treated as substantive evidence. In the opinion of this Court, the answer should be no because taking that part of the testimony of the witness on its face value, it would at best show that the witness had simply confirmed to have made a statement to the police which was reduced into writing in Ex.PW1/A, which in turn, formed the basis of the registration of the FIR. Law of Evidence in India enjoins that the facts stated in such complaining statement must be re-stated/proved by the witness again so as to make the same as an admissible piece of substantive evidence.
26. Furthermore, PW-8/2nd Investigating Officer deposed that the complainant did not tell him anything about tearing of her suit from sleeve nor she had stated about this in her complaint Ex.PW-1/A. It has remained unexplained as to why PW-1 did not narrate this aspect in her complaint Ex.PW-1/A.This creates doubt on the testimony of PW-1 on this aspect.
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27. PW-1 stated that when police official took the accused to police station, they also asked them to come to police station. Thereafter, they also went to police station. They remained at the PS for about 11:00 pm and they left for their house at about 11:00 pm. On other hand, PW-6 stated that at about 11:45 pm-12:00 mid night, PW-3/Ct. Rahul Kumar came back at the spot alongwith ASI Chap Singh Khokhar. He handed over the custody of accused to PW-8. PW-8 also deposed that he reached at the spot at about 11:45 pm. He met PW-6, complainant, her husband and accused there. Neither PW-6 nor PW-8 has stated about visit of complainant and her family members to the police station after the arrival of the police officials at the spot.
28. The Court is in agreement with the observations of Ld. Trial Court that there is ambiguity in the case of prosecution in respect of spot of incident. PW-1 has stated that she was riding scooty in front of her house. But, PW-4 deposed that the scooty was stationed in front of Seemapuri Bus Depot. PW-8 stated that he did not find any motorcycle and scooty at the spot. Same was the deposition of PW-6 on this aspect. As per site plan Ex.PW-8/A, there is considerable distance between house of the complainant and DTC Depot, Seemapuri.
29. Ld. Addl. PP for the State has argued that PW-1 deposed that on the day of incident, the accused was smelling of alcohol and the said version is corroborated with the MLC of accused Ex.PW-9/A. Merely because the MLC of accused shows that he was under influence of alcohol on the day of alleged incident, the same does not prove the guilt of the accused.
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30. The defence of the accused is that he has been falsely implicated in the present case. Considering this defence, nikahnama Ex.PW-1/D-3 becomes relevant. Though the court is in agreement with the submission made by Ld. Addl. PP for the State that at the time of execution of the alleged nikahnama, the complainant was validly married with PW-2 and thus, the said nikahnama could not have prima facie created any legal marital relationship between the accused and complainant.
31. It is pertinent to note that initially, PW-1 tried to show ignorance about execution of the documents put to her by the accused during her cross- examination and she gave unconvincing explanation as to how the said documents bore her signatures. But, PW-4/father of the complainant had categorically stated that PW-1 had gone with the accused for 2-3 days. At that time, his daughter/PW-1 was married with Jakir. His daughter had not taken her daughter alongwith her. This creates doubt on the testimony of PW-1. Thus, this Court is in agreement with the observations of Ld. Trial Court that 'it is not within the jurisdiction of this Court to look into the nature of relationship between the parties. However, it cannot be overlooked that the parties were acquainted with each other and had cordial relation with one another at some point of time'.
32. In these circumstances, this Court is of the view that the accused has been able to probabilize his defence. The Hon'ble Supreme Court in Anand Ramachandra Chougule v.Sidarai Laxman Chougala, 2019 SCC online SC 974, has held that:
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9. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
33. In view of above-said observations, this Court is of the view that Ld. Trial Court has rightly granted benefit of doubt to the accused. This Court does not find any incorrectness in the impugned judgment dated 23.04.2019 of Ld. Trial Court, whereby the accused was acquitted of the offences punishable u/s 354/354-A/ 341/506 IPC.
34. Accordingly, the present appeal is dismissed. The Criminal Appeal be consigned to record room. TCR be sent back to the Ld. Trial Court along with copy of this Order.
Announced in open Court NAVEEN GUPTA
on 08th day of January, 2021 Addl. Sessions Judge - 05
Shahdara District,
Karkardooma Courts, Delhi
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PS Seeemapuri