Delhi District Court
District Mathura vs State ( Nct Of Delhi) on 9 December, 2021
IN THE COURT OF SPECIAL JUDGE: NDPS: NORTH DISTRICT: ROHINI
COURTS :DELHI.
CRIMINAL APPEAL NO.12/2020
BHOLA
S/o Sh. Bhuri Singh
R/o Village Modi Pur
District Mathura, U.P. ....Appellant
Vs.
State ( NCT of Delhi) ...Respondent
Date of Institution : 24.01.2020
Judgment reserved on : 23.11.2020
Judgment passed on : 09.12.2021.
JUDGMENT
1. This is an appeal against the impugned judgment dated 2112.2019 as well as order on sentence dated 24.12.2019 passed by the court of Ld. M.M in FIR No.19/2012 under Section 195 A IPC, Police Station Prashant Vihar, in case titled State (NCT of Delhi) V. State.
2. The facts in brief are that on 10.01.2012, the appellant being under trial accused in FIR 97/2007, P.S Sawroop Nagar , appeared in the court of Ms Kamini Lau ,Ld ASJ ( Rohini ) for the crossexamination of the prosecutrix. It is alleged that the prosecutrix was in the visible range of the accused and was waiting in the Ahlmad Room Page 1 during lunch time . The accused/appellant threatened her by making gestures through fingers. She got scared and started crying. She informed about this to the staff members of the court. This fact was reported by the Court Staff to the Ld. Presiding Officer. The Ld. Presiding Officer then recorded the entire proceeding and the FIR was got registered upon the complaint of Ahlmad Mr. Praveen Bhatt and statement of the complainant. The trial was conducted and the prosecution examined nine witnesses in all. The Ld. Trial Court after considering the facts of the case and evidence on record , convicted the accused/appellant herein for the offence under Section 195A IPC vide judgment dated 21.12.2020.
3. The said judgment has been impugned on the following grounds:
(i) The Ld. Trial Court has failed to appreciate the fact that the appellant was falsely implicated in the present case and the prosecution has failed to prove its version beyond reasonable doubt .
(ii) The impugned judgment is liable to set aside as the same is contrary to law and facts.
(iii) The impugned judgment is liable to set aside as the complainant/PW.1 herself admitted in her statement that she was sitting in the Ahlmad Room where other staff members were also present but no one saw that the appellant threatening to cut her neck by any gesture . None of the other witness examined by the prosecution to corroborate her version and none of them saw the actual incident of appellant making any gesture with his finger on his neck. No other person saw the said incident which reflects that the allegations have been falsely leveled by PW1 so as to ensure his false implication in the main case .
(iv) The Ld. Trial Court has totally failed to appreciate the fact that the prosecution has failed to prove its case beyond reasonable doubt and mere sole Page 2 testimony of PW.1 cannot be relied upon for reaching to the conclusion in case in hand.
4. In support of the said grounds of appeal, Ld. Counsel for the appellant argued that prosecution witnesses namely Pramod Sharma, Ahlmad (PW.3), Praveen Bhatt, Ahlmad (PW.4), Naib Court HC Satish Kumar (PW.5) as well as constable Lav Kush (PW.8) too in their crossexamination admitted that they never saw any threatening gestures made by the appellant/accused towards the prosecutrix despite them all being present at the relevant time. Thus, the sole version of PW.1cannot be the ground for convicting the appellant as as has been done by the Ld. Trial Court.
5. Per contra, Ld. Addl. P.P for the State supported the impugned judgment of the Ld. Trial Court by arguing that though PW.1 only saw the actual incident of threats and gestures, but her immediate reaction of crying as well as conveying the other staff members as well as Naib Court's is a admissible evidence under Section 6 of the Evidence Act. It is also argued that there is nothing in the entire crossexamination of PW.1 who is the star witness of the prosecution which contradicts or puts any question mark over her version regarding threats.
6. I have heard Ld. Counsels for the parties and have also perused the material on record.
7. There are certain facts in the present case which are not in dispute, rather are admitted by the accused as well as the prosecutrix. It is not in dispute that on the said date of incident i.e 09.01.2012, accused ( appellant herein ) as well as complainant (PW1) appeared in the court of Ms. Kamini Lau, Ld. ASJ, Court Room No.409, Rohini Page 3 Courts, Delhi where the appellant/accused was facing trial in case FIR 97/2007, P.S Swaroop Nagar, under Section 363/366/376 IPC.
8. The second fact which is not in dispute, rather is admitted is the presence of PW.1 being in the Court at the relevant point of time. It is also not in dispute that at that point of time when the alleged threat was advanced i.e "Bhola (accused) raised his finger, putting the same on his lip and moved his finger on his neck making a semi circle.", she was sitting in the Ahlmad Room. It is also not in dispute that the victim( PW.1) was sitting in the Ahlmad Room alongwith other court officials at that point of time. It is also not in dispute that appellant herein was in the Main Court room with which the said Ahlmad room is attached .The said court room and sitting position of the victim was within the visible range where the prosecutrix was sitting. Further as far as the other material witnesses Pramod Sharma, Ahlmad (PW.3), Praveen Bhatt, Ahlmad (PW.4), Naib Court HC Satish Kumar (PW.5) as well as constable Lav Kush (PW.8) are concerned, they all were present being posted in the said court at that relevant point of time as deposed by them . There is no rebuttal to the same in their crossexamination. So there presence too is proved .
9. So, the actual factual issue which is in dispute is the threatening gestures made by the accused/appellant to the prosecutrix. PW.1 who was the victim and the prosecutrix in the connected matter. She was waiting during trial in that case while sitting in the Ahlmad Room. She, in categorical terms deposed about the sequence of events as well as manner in which she was threatened by the appellant/accused. The appellant herein threatened her by raising his finger and putting it on his lips so as to indicate the witness to remain quite. He further elaborated his threat to the prosecutrix by moving his finger by making semicircle making it apparent if the testimony was given by the prosecutrix against him, she would be killed. In the entire cross Page 4 examination of prosecutrix, all the said events and the manner in which gestures / threats were advanced, there is not even a single question put to her. Only a bald suggestion has been given regarding accused having not made any gesture. So, the version given by the victim/PW1 is unimpeachable/unchallenged as has been rightly observed by the Ld. Trial Court.
10 Now, coming to the version given by other material witnesses i.e PW.2 and PW.4. They both deposed that the relevant time was after lunch hour and the victim suddenly started crying. She immediately informed them about the incident that accused had threatened her by showing fingers. They corroborated the version of PW.1 as to the manner of gestures and the way she was threatened by using gestures only. Their version on the said aspect is again not challenged.
11. The sole argument upon which the present appeal has been preferred and the arguments were advanced is the lack of corroboration and remaining witnesses having remained silent on the issue of threat . Therefore in said backdrop the version given by other witnesses who are court officials or the Naib Court attached to court needs to be appreciated .The version of PW.2 and PW.4 who both were court officials has to be appreciated in light of their duties in court. Admittedly, PW 2 was working as Ahlmad at that given time . The court takes a judicial notice of fact that the nature the work of the Ahlmad in the court administration is to manage the record and has tedious work of managing the entire record. The post of Ahlmad is most overburdened one in the Court Administration and it cannot be assumed that the Ahlmad who is always hard pressed for time would be looking after the other happenings in the Court as has been argued on behalf of the appellant. Similar is the position of reader . Therefore, it is quite Page 5 natural that PW.2 as well as PW.4 might not have noticed the actual incident as they must have been occupied with their official work.
12. Similarly, other two witnesses PW.5 and PW8 too never saw the actual incident and the reliance was placed by the appellant on their version so as to discredit the version given by PW.1. Both PW.5 and PW.8 were deputed as Naib Courts and were present in the Court and not in the Ahlmad Room where the victim was sitting and was threatened. Therefore, the versions of the said officials cannot be discarded merely because they did not see the actual occurrence.
13. The version of victim (PW1) is also duly corroborated by contents of FIR Ex.PW 9/8 and detailed order passed by the Ld. Trial Court in FIR No. 97/2007 about the sequence of events that took place while victim and the appellant were present in the Court. The timing referred in the said order too corroborate the version of victim herein.
14. The version of PW.2, PW.4, PW.5 and PW.8 regarding they being informed about the incident by the prosecutrix immediately after she was threatened by gestures is also relevant fact under Section 6 of the Evidence Act 1872 being part of " res gestae" . The principle embodied in law in Section 6 is usually referred to as the res gestae doctrine. Although hearsay evidence is not admissible, it may be admissible in a court of law when it is res gestae and may be reliable proof. The reason behind this is the spontaneity and instant statement when there is hardly any time for manipulation or concoction . Therefore the version given by PW 2, PW 3, PW 4 , PW 5 and PW6 qua the incident described to them immediacy after the occurrence by victim PW 1.
15. In the light of above facts and circumstances of the case, I am of the considered view that there is no merit in the appeal and the version given by the prosecution Page 6 witnesses proves beyond reasonable doubt that the appellant herein threatened the prosecutrix/victim (PW.1) by advancing gestures for not giving evidence against him meaning thereby prompting her to give false evidence. Therefore, I do not find any infirmity or illegality in the impugned judgment which calls for interference and I hereby uphold the same.
Announced in the open Court on (GAGANDEEP SINGH)
09.12.2021 Special Judge, NDPS,
North District, Rohini.
Delhi.
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