Delhi District Court
Monu Panwar vs State on 24 March, 2023
IN THE COURT OF SHRI PAWAN KUMAR MATTO,
ADDITIONAL SESSIONS JUDGE (SPECIAL JUDGE NDPS),
NORTH EAST DISTT., KARKARDOOMA COURTS, DELHI
CNR No.DLNE01-001588-2022
Criminal Appeal No. 45/2022
Monu Panwar
S/o Late Sh. Jag Pal Singh
R/o A-50,Gali No.7, Phase-10,
Shiv Vihar, Karawal Nagar
Delhi-94 .......Appellant/convict
Versus
State
Govt. of NCT of Delhi,
New Delhi. ..... Respondent
Date of Institution of Appeal : 24.05.2022
Date of Completion of Arguments : 13.03.2023
Date of Order : 24.03.2023
JUDGMENT
1. This appeal is directed against the impugned judgment dated 22.12.2021 passed by the court of Ms. Vijayshree Rathore, the learned Metropolitan Magistrate, North-East District, Karkardooma Courts, Delhi, in the case registered vide FIR No.191/2014 in the Police Station Karawal Nagar, vide which, the appellant/convict has been convicted under section 354-A read with section 34 of IPC and order on sentence dated 20.04.2022, vide which, this appellant/convict has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5,000/- to the complainant and in default of payment of fine, he is directed to undergo simple imprisonment for three months.
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2. Feeling aggrieved with the above said judgment and order on sentence, the appellant/convict has filed the present appeal.
3. Brief facts of the case are that in the case in hand the FIR was registered on the complaint of the complainant 'R' (name withheld in order to protect the identity of the victim) Ex.PW1/A, wherein the complainant has alleged that on dated 11.03.2014, she was going alongwith her Bhabhi 'S' (name withheld in order to protect the identity of the Bhabhi of the victim) to the house of her elder sister and when she arrived near the house of her sister, she alighted from the auto and two boys came from back side and the said boys had misbehaved with the complainant and her bhabhi and also passed comments and when this complainant had stopped them, then they caught the Dupatta of this complainant and pulled it and said that JITNE PAISI CHAHIYE LE LENA, HAMARE SATH CHAL and on hearing hue and cries some people gathered and those people recognized the said two boys and told their names as Monu and Gyandeep and both are residents of Shiv Vihar, Phase No. 10, A block and she has prayed for taking action against the said boys.
4. On the completion of investigation, the chargesheet was filed u/s 354D/ 34 of IPC in the ld. Trial Court and both of the said boys were arrested on dated 07.04.2014 and released on bail by the Investigating Officer.
5. When, the matter was fixed for consideration on charge, Ld. Trial Court, vide it's order dated 11.05.2016 was pleased to frame the charge u/s 354A/34 of IPC against both the CA No. 45/2022 Monu Panwar vs. State Page No. 2 of 22 accused and both the accused had pleaded not guilty and claimed trial and both the accused were put on trial.
6. In order to prove its case, the prosecution has examined five witnesses. The complainant 'R' had examined herself as PW1. She has been cross-examined by ld. Counsels for both the accused and bhabhi of this complainant 'S' was examined as PW-2. She was also cross-examined by ld. Counsels for both the accused. Ct. Raj Kumar was examined as PW-3. He was also cross-examined by ld. Counsels for both the accused. ASI Om Pal was examined as PW-4. He was also cross-examined by ld. Counsels for both the accused. Retired/ASI Yogesh Tyagi was examined as PW-5. He was also cross-examined by ld. Counsels for both the accused.
7. On the completion of the evidence of the prosecution, both the accused were examined u/s 313 of Cr.PC, wherein all the incriminating evidence were put before them and they had denied the correctness thereof and they had taken the plea that they have been falsely implicated in this case. Both the convicts/appellants did not lead any evidence in their defence.
8. I have heard Ms. Sandhya Gupta, Ld. Counsel for the appellant/convict Monu Panwar and Ld. Addl. PP for the State and perused the record.
9. Ms. Sandhya Gupta, the ld. Counsel for appellant/convict Monu Panwar has submitted that appellant/convict has been falsely implicated in the present case and erroneously convicted by the ld. Trial Court. She has further submitted that appellant/convict has nothing to do with the CA No. 45/2022 Monu Panwar vs. State Page No. 3 of 22 offence alleged to have been committed by the appellant/convict. She has further submitted that there are material contradictions in the testimonies of PW-1 and PW-2. She has further submitted that in view of the contradictions in the testimonies of PW-1 and PW-2, the testimonies of these prosecution's witnesses cannot be relied upon and submitted that since the testimonies of PW-1 and PW-2 are suspicious, so the benefit of doubt is liable to be given to the appellant/convict. She has also submitted that the testimonies of the PW-1 and PW-2 are inconsistent to each other and their testimonies are also improved and embellished and further submitted that the IO has failed to record the statement of any other independent public witness and even the writer of the complaint Ex.PW1/A Sh. Pankaj Choudhary. She has further submitted that the PW-1, while examined herself in the Trial court has alleged that that she had made a call at 100 number, whereas, PW-2 in her cross-examination has deposed that the 100 number call was made by the husband of her sister-in-law and further submitted that the appellant/convict was not known to the PW-1 or PW-2 and submitted that if the cross-examination of PW-1 is looked into, then the Cable Operator is alleged to have told the names of both the accused to her, but, no statement of any Cable Operator has been recorded by the IO and submitted that the complainant in her complaint Ex.PW1/A has nowhere mentioned as to which of the accused had pulled her dupatta and submitted that at the time of her examination in the Ld. Trial court, she has alleged that appellant/convict Monu had pulled her dupatta and submitted that the testimony of the complainant, which is improved and embellished cannot be relied upon and further submitted that PW-1 has claimed that on receiving the CA No. 45/2022 Monu Panwar vs. State Page No. 4 of 22 call at 100 number, the police had arrived, whereas, the PW-2 in her cross-examination had deposed that police officials did not arrive at the spot and submitted that since the testimony of PW-1 and PW-2 are inconsistent to the content of EXPW1/A and their testimonies are also improved and embellished, which are not corroborated by any independent public witness and no public witness has been examined and IO has been examined as PW-5, he has admitted in his cross-examination that he did not record the statement of writer of the complaint Ex.PW1/A Sh. Pankaj Choudhary. He also did not record the statement of any public witness and submitted that in the absence of any independent witness, the testimonies of PW-1 and PW-2 cannot be relied upon and prayed for setting aside the impugned judgment and order on sentence and for acquitting the appellant/convict.
10. On the other hand, Sh. Sukhbeer Singh, the learned Additional Public Prosecutor for the State has submitted that since both the accused have passed sexual remarks against the complainant and her bhabhi and appellant/convict Monu Panwar had also pulled dupatta of the complainant and further submitted that the testimonies of PW-1 and PW-2 remained consistent so, the learned Trial Court has rightly relied upon the testimonies of PW-1 and PW-2 and convicted to the appellant/convict vide impugned judgment and sentenced him vide impugned order, so there is no infirmity in the impugned judgment and order under appeal and prayed for upholding the impugned judgment and order on sentence and to dismiss the appeal.
11. I have given thoughtful consideration to the submissions made by the Ld. Counsel for the parties and perused CA No. 45/2022 Monu Panwar vs. State Page No. 5 of 22 the record.
12. The perusal of the record reveals that in the case in hand the FIR was registered on the basis of complaint of the complainant Ex.PW1/A, wherein, she has alleged that on dated 11.03.2014, she was going alongwith her Bhabhi 'S' to the house of her elder sister and when, she arrived near the house of her sister. She alighted from the auto and two boys came from back side and they had misbehaved with the complainant and her bhabhi and also passed comments and when this complainant had stopped them, then they caught the Dupatta of this complainant and pulled it and said that JITNE PAISI CHAHIYE LE LENA, HAMARE SATH CHAL and on hearing hue and cries some people gathered and those people recognized the said two boys and told their names as Monu and Gyandeep and both are residents of Shiv Vihar, Phase No. 10, block A and she has prayed for taking action against the said boys.
13. In order to prove her case, the complainant 'R' has examined herself PW-1, who has testified that in the month of March 2014, she was going to the house of her sister alongwith her bhabhi S and they had boarded in an auto rickshaw from Seelampur. They had left the said auto at Shiv Vihar puliya, as her sister used to reside at Shiv Vihar and when, they had come out from the auto, both the accused persons had stopped her and her bhabhi and passed the comments that INKE LIYE EK-EK LAKH RUPAY BHI KAM HAIN and she has also deposed that accused Monu Panwar had pulled her dupatta, and when she resisted the said comment. She has also deposed that after that she raised an alarm, on which both the accused persons ran CA No. 45/2022 Monu Panwar vs. State Page No. 6 of 22 away from the spot and the persons from the local area had told her their names as Monu and Gyandeep. She has further deposed that the persons of the local area had told her that those boys have same habit of eve teasing the girls and thereafter she made call at 100 number, after which, the police arrived at the spot, but, both the accused had fled away from the spot, by that time. She has also deposed that she had given the complaint Ex.PW1/A to the police and the police had arrested both the accused Monu Panwar and Gyan Deep at her instance vide arrest memos Ex.PW1/B and Ex.PW1/C and her statement was also recorded with regard to the same incident by the Hon'ble Judge Mark X. Then the ld. APP for the State had sought permission to cross-examine this witness, as she had resiled from her previous statement. This witness was cross-examined by ld. APP and during cross-examination, she had admitted it to be correct that said incident happened on 11.03.2014 and she could not tell the date of incident due to passage of long time.
14. This witness was cross-examined by ld. Counsel for appellant/convict and during her cross-examination, she had admitted that she had put her thumb on complaint Ex.PW1/A. She had admitted that police had recorded her statement. She had also deposed that she had told to the police about the comments that INKE LIYE EK-EK LAKH RUPAYE BHI KAM HAIN. She was confronted with her complaint Ex.PW1/A wherein, it was not so recorded. She had denied that she had given the statement at the instance of police officials. She had also denied that she had given statement u/s 164 CrPC at the instance of police officials. She had admitted that where her auto rickshaw was CA No. 45/2022 Monu Panwar vs. State Page No. 7 of 22 stopped, it was a public place. She had denied that Monu and Gyan Deep were not present at the spot or that they had not done any offence with her or that she had deposed that indecent comments had come from behind and not from the said accused. She had also deposed that her sister 'SK' (presumed name) had also arrived at the spot and she had also deposed that she had called at 100 number after about 20-25 minutes approximately, after the alleged incident and her sister, her bhabhi and her brothers were present at the spot, when she called to the police at 100 number and police officials had enquired from 2-3 public persons and she had told to the police about the identification of both of the accused. She had also deposed that she did not know the names of the accused persons. She does not remember, as to what has been worn by accused Gyandeep and her complaint was recorded after about an hour of the dialing of 100 number. She had voluntarily deposed that she does not know any person by the name of Pankaj Chaudhary. She did not remember as police recorded statement of Pankaj Chaudhary. She had admitted it to be correct that the police has prepared site plan of the place of occurrence at her instance and she and her bhabhi had signed the same. She had also deposed that the auto driver did not remain there after leaving them. She has denied that she has filed the present case at the instance of public persons of the locality.
15. She has also deposed that she cannot tell the name of the public person present at the spot, who said that the accused persons are habitual of this kind of activity. She had also deposed that cable operator of the locality had told her names of both the accused. She had further deposed that she had told to the police CA No. 45/2022 Monu Panwar vs. State Page No. 8 of 22 about cable operator. She was confronted with her complaint Ex.PW1/A, wherein, it was not so recorded. She had also deposed that one more person was present alongwith accused persons, who was nephew of the cable operator and she had told the police about the presence of that person and she did not mention his name in the complaint, as he did not do anything. She had also deposed that she had visited the police station only once after the present complaint. She had denied that both the accused had not passed indecent/lewd comments or pulled her dupatta or that they have been falsely implicated in the present case. She does not know the registration number of the motorcycle of the accused. She had denied that the accused did not run away on the alleged motorcycle or that she had deposed falsely.
16. The bhabhi of this complainant Ms. "S" has been examined as PW-2, who had testified that about three years ago she alongwith her sister-in-law "R" was going to the house of her elder sister-in-law from Seelampur to Shiv Vihar by an auto rickshaw and when they deboarded from the auto rickshaw, she found that Monu and Gyandeep there and accused Monu Panwar had offered Rs. 12 lakhs to her sisterinlaw "R" and when her sisterinlaw had resisted the same, the accused persons pulled her wearing dupatta and her sisterinlaw was wearing golden chain, which was misplaced or taken by both the accused. Thereafter both the accused ran away from the spot. They lodged the report against both the accused persons in the concerned PS. She had identified both the accused in the ld. Trial Court and deposed that she does not remember the name of other accused CA No. 45/2022 Monu Panwar vs. State Page No. 9 of 22 person except Monu Panwar. She had identified her thumb impressions on the arrest memos of both the accused Ex.PW1/B & 1/C.
17. Thereafter, the ld. APP for the state had sought the permission from the Ld. Trial Court to cross-examine this witness, as she was allegedly resiled from her previous statement and after hearing ld. Trial Court was pleased to permit ld. APP for the State to cross-examine this witness and during her cross- examination she had deposed that she is an illiterate lady and she had admitted it to be correct that the occurrence had taken place on 11.03.2014 at about 2:35 p.m. she had also admitted it to be correct that they stepped out at Gali No. 16, Phase X, Shiv Vihar and started moving and two boys standing at the spot started passing indecent comments on them and when her sister in law "R" had opposed the same then they had come to her and said to her KITNE PAISE CHAHIYE LE LENA HAMARE SATH CHALO and voluntarily deposed that they had told about Rs. Two lakhs also. She had also admitted it to be correct that the public persons gathered at the spot, when they raised alarm and some public persons knew the identity of both the accused and names of both the accused are Monu Panwar and Gyan Deep and further deposed that she could not mention the entire facts due to long lapse of time.
18. This witness was cross-examined by ld. Counsels for accused and during cross-examination, she had deposed that complaint of her sister-in-law was recorded by the police officer, who found sitting in the P.S. She had also deposed that the complaint given by them was read over to them and thereafter CA No. 45/2022 Monu Panwar vs. State Page No. 10 of 22 only her sister-in-law had put her thumb impression thereon and she does not remember, as to on how many papers, her thumb impressions were taken by the police and police had recorded her statement with regard to the incident. She had further deposed that statement of her sister-in-law was also recorded in her presence and police official did not arrive at the spot. She had also deposed that the site plan was not prepared in her presence. The police did not record statement of any public person in her presence and she could not tell the name of the accused Gyandeep, as she did not remember his name. She had also deposed that accused Monu Panwar was wearing kurta pyjama, whereas the other accused was wearing shirt and pant. She does not know whether her sister-in-law was tutored by the police before recording her statement u/s 164 CrPC.
19. She had admitted it to be correct that her sister-in- law lives in Shanti Mohalla, Ghaziabad and police official did not record the statement of the auto driver in her presence and he left the spot before the police had arrived. She had also deposed that house of her sister-in-law is situated at about walking distance of 10-15 minutes. She had also deposed that police did not record any statement of her family member in her presence. They do not have any relation with Pankaj Chaudhary. Police did not record statement of Pankaj Chaudhary in her presence. She has denied that both the accused were falsely implicated in the present case at the instance of Pankaj Chaudhary or that accused were not present at the spot, at the time of alleged incident. She had also deposed that Monu Panwar had passed the indecent comments on them. She had also deposed that police CA No. 45/2022 Monu Panwar vs. State Page No. 11 of 22 arrived at the spot after 10 minutes and it was about 3:00 p.m. when the police came at the spot. Accused were found standing at a distance of 4-5 steps and the statement of her sister-in-law was recorded after about half hour and police had come at the house of her sister-in-law. She had further deposed that 100 number call was made by the husband of her sister-in-law. and this witness alongwith her sister-in-law and husband of elder sister-in-law had visited the Police Station and police officials did not accompany them to the police station.
20. Ct. Raj Kumar has been examined as PW-3, who has deposed that on dated 07.04.2014, he was posted in the police station Karawal Nagar and on that day, he alongwith ASI Yogesh Tyagi joined the investigation of the present case and accused Monu Panwar and Gyandeep were arrested by the IO. He has also deposed that the accused Monu Panwar was arrested from gali no. 2, Phase-9, Shiv Vihar vide memo of arrest Ex.PW1/E and his personal search was conducted vide memo ExPW1/A. He has also deposed that the accused Gyandeep was arrested from gali no. 7, Phase-10, vide memo of arrest Ex.PW1/B and his personal search was conducted vide memo ExPW3/B and he had correctly identified both the accused in the Ld. Trial Court. He has also deposed that complainant "R" and "S" were also accompanying them at the time of arrest of the accused.
21. Since, this witness did not disclose certain material facts, so , the Ld. APP for state had sought permission to cross- examine this witness and after hearing, the ld. trial court was pleased to allow the Ld. APP for State to cross-examine this witness.
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22. During his cross examination by the Ld. APP for the State, this witness had admitted it to be correct that Monu Panwar was arrested from H. No. A-50, gali no. 7, Phase-10, Shiv Vihar and accused Gyandeep was arrested from H. No. 67, gali No. 2, Phase-9, Shiv Vihar, Delhi. He had also admitted it to be correct that both the accused were arrested at the instance of the complainant.
23. This witness was also cross-examined by ld. counsels for both the accused and during his cross-examination, he had deposed that he does not remember the time, as to when they had left the police station. He had also deposed that he does not remember whether the statement of Pankaj Choudhary was recorded in his presence or not. He had admitted that site plan was not prepared in his presence. He had also deposed that he does not remember as to how much time, he remained at the spot, at the time of arrest. He has also deposed that he does not remember as to where the complainant 'R' and 'S'(PW-2) had joined them at the time of arrest. He had denied that the accused had not committed any offence or that they have been falsely implicated in the present case.
24. ASI Om Pal was examined as PW-4, who had deposed that on dated 11.03.2014, he was posted at PS Karawal Nagar as Constable and on that day, he was having emergency duty from 8:00 AM to 8:00 PM. On receiving DD No. 16A, he alongwith ASI Yogesh Tyagi, arrived at H. No. A/193, gali no. 16, Phase-10, Shiv Vihar and they met the complainant and IO recorded the statement of complainant and prepared the Rukka and same was handed over to this witness for registration of FIR CA No. 45/2022 Monu Panwar vs. State Page No. 13 of 22 and he alongwith IO Yogesh tried to search accused, but, they could not find any of them.
25. This witness was cross-examined by the ld. counsels for the accused and during his cross-examination, he had deposed that he does not remember, as to when they had left the police station. He has also deposed that they took about 15 minutes in arriving at the spot and they visited by personal vehicle of the IO and it took about 20/25 minutes in recording of the statement of complainant 'R' and further deposed that 'R', her sister-in-law 'S' and Pankaj Choudhary were present at the spot and it took about one hour in getting the FIR lodged. He had also deposed that IO had recorded the statement of 'R' in his presence and IO did not enquire from husband of the complainant and other neighbours, in his presence. He had denied that he had not joined the investigation or that accused were falsely implicated in the present case or that he had deposed falsely.
26. Retired SI Yogesh Tyagi was examined as PW-5, who had deposed that on dated 11.03.2014, he was posted at PS Karawal Nagar as ASI and on that day, he was having emergency duty from 8:00 AM to 8:00 PM. On receiving DD No. 16A, he alongwith Ct. Om Pal, had arrived at gali no. 10, Shiv Vihar and they met the complainant 'R' and her bhabhi 'S'. They also met one person namely Pankaj Choudhary and Pankaj Choudhary recorded the statement of 'R' and handed over the same to this witness. He had prepared the rukka Ex.PW5/B and gave the same to Ct. Om Pal and he had sent Ct.Om Pal to the concerned police station for registration of FIR and Ct. Om Pal came back at the spot after getting the FIR lodged alongwith original rukka and CA No. 45/2022 Monu Panwar vs. State Page No. 14 of 22 copy of FIR and he had prepared site plan Ex.PW5/A at the instance of the complainant and accused persons could not be searched and they came back to the police station and he had recorded the statement of Ct. Om Pal.
27. He has further deposed that on dated 13.03.2014, he got the statement of 'R' recorded u/sec. 164 of Cr.P.C. and on dated 07.04.2014, he had arrested accused Gyandeep and Monu Panwar at the instance of 'R' and 'S' vide memos of arrest Ex.PW1/B and Ex.PW1/C respectively and Ct. Raj Kumar was also present at there and he had conducted the personal search of the accused vide memos Ex.PW3/B and Ex.PW3/A and information of arrest was given to the families of accused persons, both the accused were released on bail, as offence was bailable in nature. This witness had correctly identified the accused in the ld. trial court and deposed that he had recorded the statements of "R" and "S", Ct. Ompal, Ct. Raj Kumar and written the complaint of 'R' Ex.PW1/A and on completion of investigation, he had submitted the charge sheet.
28. This witness was cross-examined by the learned counsels for the accused and during his cross-examination, he had deposed that he did not record the statement of writer of the complaint. He did not make inquiry from the writer of the complaint namely Pankaj Choudhary. He does not remember the exact time of sending the rukka for registration of FIR. He had also admitted it to be correct that before registration of FIR, he made the site plan and after registration of FIR, he wrote the FIR number thereon. He had also deposed that the incident had happened on the pulia of Shiv Vihar and he did not record the CA No. 45/2022 Monu Panwar vs. State Page No. 15 of 22 statement of public persons around the spot of incident and he cannot identify the accused persons by their names. He had denied that the accused were falsely implicated in the present case or that he had deposed falsely.
29. Thereafter, on the completion of the evidence of the prosecution, the statements of both the accused u/s 313 of Cr.P.C were recorded, wherein all the incriminating evidence on record alongwith documents were put before them and they had denied correctness thereof. Accused had taken the plea that they have been falsely implicated in the present case.
30. Since,in the case in hand, the prosecution has alleged that appellant/convict had committed offence punishable U/s 354-A/34 of IPC, so, it was incumbent on the part of the prosecution to prove it's case beyond reasonable doubt and in order to prove her case, the complainant has been examined as PW-1. The complainant in her complaint Ex.PW1/A(on the basis of which,the FIR was registered) has alleged that on dated 11.03.2014, she was going alongwith her Bhabhi 'S' (name withheld in order to protect the identity of the Bhabhi of the victim) to the house of her elder sister and when she arrived near the house of her sister, she alighted from the auto and two boys came from back side and misbehaved with the complainant and her bhabhi and also passed comments and when,this complainant had stopped them, then they caught the Dupatta of this complainant and pulled it and said that JITNE PAISI CHAHIYE LE LENA, HAMARE SATH CHAL and on hearing hue and cries some people gathered and both the accused fled away and those people who gathered, recognized the said two boys and told CA No. 45/2022 Monu Panwar vs. State Page No. 16 of 22 their names as Monu and Gyandeep and both are residents of Shiv Vihar, Phase No. 10, A block and she has prayed for taking action against the said boys.
31. It is worthwhile to mention here that the complainant has been examined as PW-1, who has deposed in the ld. trial court that both the accused stopped her and her bhabhi and passed the comments that INKE LIYE EK EK LAKH RUPAY BHI KAM HAI and also alleged that appellant/convict Monu Panwar had pulled her Dupatta and she has also stated that she had made call at 100 number. It is worthwhile to mention here that this complainant has nowhere mentioned in her complaint Ex.PW1/A that the accused had uttered such words INKE LIYE EK EK LAKH RUPAY BHI KAM HAI. It is also worthwhile to mention here that the complainant has also deposed in her cross-examination that one Cable Operator of locality had told her the names of both the accused persons, but, the IO did not record the statement of any such Cable Operator, who is alleged to have told the names of both the accused persons to this complainant. It is also pertinent to mention here that the complaint Ex.PW1/A is written by one Pankaj Choudhary, but, IO also did not choose to record the statement of the said writer of the complaint Sh. Pankaj Choudhary. The complainant has nowhere mentioned in her complaint Ex.PW1/A that it is the Cable Operator, who had disclosed the names of both the accused persons. It is also pertinent to mention here that Ms. 'S' has been examined as PW-2 and during her examination in chief, she has alleged that accused Monu Panwar had offered an amount of rupees one-two lakh to her sister-in-law 'R' and she CA No. 45/2022 Monu Panwar vs. State Page No. 17 of 22 had also deposed that her sister-in-law was also wearing golden chain, which was misplaced or taken by both the accused,but, this court does not find any such allegation of offering 1-2 lakhs against convict Monu neither in the complaint or in the statement of this witness recorded by the IO.
32. Since, it is an admitted fact that the accused Monu Panwar and Gyandeep were not known to the complainant and if the cross-examination of PW-1 is looked into, then it is one Cable Operator, who had told the name of Monu Panwar and Gyandeep to this complainant, but, IO had failed to record the statement of any such Cable Operator, who is alleged to have told the names of the appellant/convict Monu Panwar to the complainant. The testimonies of PW-1 and PW-2 are also found improved and embellished, as PW-2 also levelled the allegations of offering of rupees 1-2 lakh to her sister-in-law "R" by the appellant/convict Monu Panwar.
33. PW-1 in her examination in chief has deposed that she had made a call at 100 number,whereas PW-2 had deposed in her cross-examination that 100 number call was made by husband of her sister-in-law and PW-2 also deposed in her cross- examination that police did not arrive at the spot. If the testimony of PW-5 is looked into, then it is DD No. 16A, on receiving of which, the IO had arrived at the spot,but DD NO. 16A is not placed on record of ld. trial court by the prosecution for the best reasons known to the prosecution. The testimonies of PW-1 and PW-2 are found to be improved and embellished.
34. The perusal of the complaint Ex.PW1/A reveals that CA No. 45/2022 Monu Panwar vs. State Page No. 18 of 22 there is no specific allegation against each accused Monu and Gyandeep, but at the time of recording of statement of PW-1 in the ld. trial court, she had alleged that Monu Panwar had pulled her dupatta. She has nowhere mentioned in her examination in chief as to which of the accused had passed the comments INKEY LIYE EK EK LAKH BHI KAM HAI. This court does not find any such comments in her complaint Ex.PW1/A. Since, the testimonies of PW-1 and PW-2 are inconsistent to the contents of Ex.PW1/A and testimonies of PW-1 and PW-2 are not corroborated by the testimony of any other independent witness. IO has admitted in his cross-examination that he did not record the statement of any independent public person. The testimonies of PW-1 and PW-2 which are improved and embellished so, the same do not inspire any confidence.
35. It is well settled principle of criminal jurisprudence that the prosecution has to prove it's case beyond reasonable doubt.
36. The prosecution was under legal obligation to bring on record cogent and consistent evidence to prove the guilt of the appellant.
37. This court finds that the alleged comments that INKEY LIYE EK EK LAKH BHI KAM HAI are not found in the complaint Ex.PW1/A. So, the testimonies of complainant (PW-1) and PW-2 which are found to be improved and embellished, so the same do not inspire any confidence.
38. Since, Their Lordship of the Supreme Court in case 'Suraj Mal Vs. State (Delhi Administration) AIR 1979 Supreme CA No. 45/2022 Monu Panwar vs. State Page No. 19 of 22 Court 1408' was pleased to hold that:
"it is well settled that where witnesses make two inconsistent statements in their evidence either on one stage or at two stages, the testimony of such witness become unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witness."
39. Since their lordship of Hon'ble Supreme Court in "Dilawar Balu Kurane Vs. State of Maharashtra (Appeal (Crl.)8 of 2002)" was pleased to hold that :-
"when two views are possible, then the view in favour of the accused has to be adopted by the court".
40. In the case of "Mohan Singh and anr. v. State of M.P. (1999)1 Supreme Court Reports 276", it was held that :-
"the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scott free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
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41. In Upendra Pradhan v. State of Orissa, 2015 (3) JCC 1631 :2015(11) SCC 124, "this Court took the view that if there is benefit of doubt, it must go to the accused,and in case of two views, the view that favours the accused, should be taken, which was more so where the Trial Court's decision was not manifestly illegal, perverse and did not cause miscarriage of justice.
42. Since, in the case in hand the testimony of PW- 1 and PW-2 are inconsistent,improved and embellished, so the same do not inspire any confidence.
43. This court has also come to the conclusion that there are material contradictions and inconsistencies in the testimonies of PW- 1 and PW-2 which render their testimonies to be suspicions and unreliable. Therefore, in the considered opinion of this court, the ld. Trial court should have given the benefits of doubts to the appellant/convict in view of the inconsistent, improved and embellished testimonies of PW-1 and PW-2. Because this court finds that the testimonies of PW-1 and PW-2 are suspicious and as per law discussed herein above, the conviction cannot be based on such inconsistent, improved, embellished and suspicious testimonies of PW-1 & PW-2. So, the impugned judgment and order under appeal, require interference therein.
44. In view of the above discussion, I am inclined to hold that in the above discussed facts,circumstances and the law discussed herein above, the impugned judgment and order under CA No. 45/2022 Monu Panwar vs. State Page No. 21 of 22 appeal passed by the ld. Trial court are not sustainable in the eyes of law, so the same are set-aside. Appellant/convict Monu Panwar is acquitted of the charges framed u/sec. 354A/34 of IPC. The Appeal is allowed.
45. File is ordered to be consigned to the record room.
46. The record of the trial court is also ordered to be returned with the attested copy of this judgment.
Announced in the open court on 24.03.2023
Digitally signed by
PAWAN PAWAN KUMAR
KUMAR MATTO
Date: 2023.03.24
MATTO 16:38:43 +0500
(PAWAN KUMAR MATTO)
Additional Sessions Judge
(Special Judge NDPS)
North-East District,
Karkardooma Courts, Delhi
24.03.203.
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