Delhi District Court
Baby Gupta vs State (Govt. Of Nct Of Delhi) & Anr. on 28 February, 2018
CA No.80/17
Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS, NEW
DELHI
CA No. 80/17
ID No.380/17
CNR No.DLSW010154112017
Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
Baby Gupta
W/o Sh. Ashok Gupta
R/o H.No.100, Gali no.6,
Raghuvir Enclave,
Najafgarh,
New Delhi110 043 ... Appellant
Versus
1. State (Govt. of NCT of Delhi)
2. Anil Singh
S/o Sh. Umed Singh
R/o H.No.88, Lokesh Park
Najafgarh, New Delhi ... Respondent
Date of institution of appeal :22.11.2017
Date on which judgment reserved :21.02.2018
Date on which judgment pronounced :28.02.2018
Page: 1/19
CA No.80/17
Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
JUDGMENT
1. The appellant/complainant is aggrieved by the judgment dated 19.09.2017 of the ld. Trial court (hereinafter referred to as 'impugned judgment') vide which respondent no.2 was acquitted for the offence u/s. 354/506 IPC.
2. The brief facts which are relevant for deciding the present appeal are that respondent no.2 was chargesheeted for the offence u/s.354/506 IPC on the basis of complaint of the appellant.
3. In the complaint of the appellant, it was alleged by her that she was a tenant of respondent no.2 and rent was being collected by respondent no.2. It was alleged by the appellant that she was doing a job of tailoring work and on 17.06.2009, the respondent no.2 had borrowed from her a measuring tape. It was alleged that on 03.07.2009, respondent no.2 had come to collect the rent in the presence of husband of the appellant and after Page: 2/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
collection of rent, he had gone away. However, after 15 minutes, respondent no.2 had again returned to return the measuring tape.
4. It was alleged that at that point of time, all the three daughters of the appellant were not at home. It was alleged that after entering into the house of the appellant, respondent no.2 had outraged the modesty of the appellant by holding her from behind and only when the appellant raised an alarm and on seeing her children that respondent no.2 had run away. It was also alleged that thereafter, respondent no.2 had threatened the appellant telephonically not to report the matter to the police.
5. The appellant also made allegations of being threatened by respondent no.2 and his friends from 03.07.2009 till 20.10.2009.
6. After the filing of chargesheet, notice was framed against respondent no.2 with regard to offence u/s.354 IPC and with regard to offence of criminal Page: 3/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
intimidation u/s.506 IPC. The respondent no.2 had claimed not guilty and had claimed trial.
7. At trial, prosecution examined 03 witnesses including appellant whereas respondent no.2 in his defence had examined apart from himself, 03 more witnesses.
8. After the completion of the evidence, ld. Trial court, after hearing the arguments had, vide the impugned judgment, acquitted respondent no.2 as prosecution had failed to prove its case beyond reasonable doubt. Aggrieved by the impugned judgment, the appellant has approached this court.
9. Notice of the appeal was issued to the respondent, who on being served, chose not to file any reply.
10. I have heard Sh. R.K.Bachchan, ld. Counsel for the appellant from Legal Aid, Sh. P.N.Singh, ld. Addl. P.P. for respondent no.1/State and Sh. Anirudh Yadav, ld. Counsel for respondent no.2. I have also summoned the trial court record and have carefully perused the same.
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11. It was stated by ld. Counsel for the appellant that in the present case, ld. Trial court has committed grave illegality by acquitting respondent no.2 despite there being incriminating evidence against him. It was submitted that ld. Trial court acquitted respondent no.2 on the basis of minor discrepancies which could have been easily ignored as the matter was quite old and chances of occurring of minor discrepancies could not be ruled out.
12. It was further submitted that ld. Trial court wrongly held that on account of nonexamination of daughters of the appellant, the appellant's version appears to be doubtful. It was submitted that since the daughters of the appellant were minor at the time of the incident and were aged only between 03 to 09 years, therefore they were not examined and their nonexamination is not fatal to the appellant's case as appellant's testimony alone is sufficient to prove the charges Page: 5/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
leveled against the respondent no.2.
13. It was further submitted that although there was no medical proof with regard to injuries suffered by the appellant, but for that the appellant can not be faulted as it was the duty of the IO to have got the appellant medically examined.
14. It was further submitted that ld. Trial court erred in holding that the appellant was unable to explain the delay in making the complaint whereas the appellant had disclosed the reasons as to why the complaint was not given in time.
15. It was further submitted that nonjoining of independent witnesses and noncollection of call details record of the appellant was the job of the Investigating Officer and on that ground, the testimony of appellant can not be doubted. Therefore, the ld. Trial court erred in discrediting the testimony of the appellant on the ground of there being no call records and there being no independent witnesses to the incident.
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16. Accordingly, a prayer was made to set aside the impugned judgment and convict the respondent no.2 for the offence with which he was charged.
17. The ld. Addl. P.P. for respondent no.1/State did not lead any arguments despite grant of opportunity. On inquiry, it was further submitted that they had not filed any appeal against the impugned judgment.
18. Ld. counsel for respondent no.2 submitted that there is no illegality or infirmity in the impugned judgment and the ld. Trial court appreciated the evidence in the right perspective and the conclusion reached by ld. Trial court does not call for any interference by this court.
19. It was submitted that in the present case, the incident is of 03.07.2009 but the first complaint was given by the appellant on 21.10.2009 and delay in lodging the complaint was not explained by the appellant.
20. On the contrary, in her cross examination, it Page: 7/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
was submitted by the appellant that she can not tell the reason as to why the first complaint was made to the police on 21.10.2009. Therefore, the delay was never explained by the appellant in this case. Hence, the possibility of concoction and manipulation, just to falsely implicate the respondent no.2, could not be ruled out.
21. It was further submitted that respondent no.2 in his defence had produced on record a complaint given to the police dated 28.09.2009 mark A which was not disputed by the prosecution at the time of tendering of the document and in the said complaint made to P.S. Najafgarh, respondent no.2 had stated that appellant after vacating the premises, is threatening to falsely implicate the respondent no.2 in false cases.
22. It was further submitted that complaint of the appellant Ex.PW1/A was made on 21.10.2009 after the complaint of respondent no.2 made on 20.09.2009 which also proved on record that Page: 8/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
appellant had got the case falsely registered against the respondent no.2 as he had got the premises vacated from the appellant on the ground of nonpayment of rent.
23. It was further submitted that appellant had made material improvements in the testimony recorded before the court which have been specifically mentioned by the ld. Trial court in the impugned judgment and the said material improvements made by the appellant also makes her testimony unreliable and unbelievable.
24. Further it was submitted that appellant had also deposed contradictory facts with regard to knowing the address of the landlord and respondent and with regard to her daughters being present at the time of the incident which also makes her testimony unreliable and unbelievable.
25. Lastly, it was submitted that no call details record was produced by the appellant in support of her deposition that respondent no.2 had Page: 9/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
telephonically threatened the appellant on number of occasions after the alleged incident of 03.07.2009. On the contrary, the appellant had deposed in her cross examination that after the incident, there was no telephonic contact between her and respondent no.2.
26. Accordingly, it was concluded by submitting that in the light of the evidence which has come on record of the appellant which was unreliable and untrustworthy, the ld. Trial court rightly gave the benefit of doubt to the respondent no.2 by acquitting him of the charges u/s.354/506 IPC. Accordingly, a prayer was made to dismiss the appeal.
27. I have considered the rival submissions and have carefully perused the record.
28. In the present case, respondent no.2 was charged for having outraged the modesty of the appellant on 03.07.2009 and of having criminally intimidated the appellant between 03.07.2009 till Page: 10/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
26.02.2010.
29. The first and the foremost ground which makes the testimony of the appellant appears to be doubtful and concocted one is the delay in getting the present case registered.
30. As per the testimony of the appellant, the incident of outraging her modesty by holding her from behind at her house by respondent no.2 is of 03.07.2009.
31. It has come in the cross examination of the appellant that she had made first complaint to the police on 21.10.2009. It has also come in the cross examination of the appellant that she and her husband were having a mobile phone but no call was made to the police at no.100 either on 03.07.2009 or on any day prior to 21.10.2009. It has also come in her cross examination that even she never visited the police station prior to 21.10.2009.
32. It has also come in the cross examination of the Page: 11/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
appellant that she is unable to provide any reason for delay in making the complaint to the police on 21.10.2009. Therefore, in the present case, delay in lodging the police complaint of around two and a half months has not been explained by the prosecution.
33. It is settled principle of law that if delay in lodging the FIR has not been properly explained, then the possibility of concoction and manipulation in the allegations can not be ruled out. Therefore, the ground of delay in lodging the police complaint has not been properly explained and the testimony of the appellant was rightly not relied upon by the ld. Trial court.
34. Further in her cross examination, the appellant had deposed that she had suffered minor injuries in the scuffle with respondent no.2 but no medical evidence was brought on record by the appellant/prosecution to corroborate her allegations. The contention of ld. Counsel for Page: 12/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
appellant that it was the duty of IO to have got her medically examined is required to be rejected because the incident is of 03.07.2009 and complaint was made to police on 21.10.2009. Therefore, after about two and a half months of the incident, no proof of injuries would have come in the medical examination. Therefore, IO in his wisdom, did not get the appellant medically examined and I do not find any fault on the part of the IO.
35. Further, in her examination in chief, the appellant had deposed about the threats being extended by respondent no.2 and his friend on number of occasions after the alleged incident of 03.07.2009 but no call details record of the appellant's mobile phone and that of respondent no.2 has been brought on record to corroborate the alleged threats.
36. On the contrary, in her cross examination, the appellant has herself admitted that after the Page: 13/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
incident, she did not have any telephonic conversation with respondent no.2. In the light of admission made by the appellant in her cross examination, it can be safely concluded that the appellant had deposed falsely with regard to the alleged threats made by the respondent no.2 on the mobile phone of the appellant. Therefore, on this ground also, the ld. Trial court rightly disbelieved the testimony of the appellant.
37. Further, the appellant had deposed contradictory facts to what was alleged in her complaint Ex.PW1/A made to the police. In the complaint Ex.PW1/A, it was stated by the appellant that on 03.07.2009 all her three daughters had gone to the nearby grocery shop for purchasing toffees but in her examination in chief before the court, she had stated that only her two elder daughters had gone for purchasing grocery items whereas in her cross examination, again a new fact was deposed that her two daughters were Page: 14/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
in the house.
38. Further in her examination in chief, it was deposed by the appellant that respondent no.2 could not be found on the date of the incident as he had provided incorrect address to her husband but in her cross examination, she had admitted that address and telephone number of respondent no.2 and his father in law were known to the appellant and her husband.
39. Further the appellant had also made material improvements in her deposition by deposing about visit of respondent no.2 alongwith his friend Dayanand to her house and his quarreling with her husband, which fact was never mentioned in her initial complaint Ex.PW1/A.
40. The appellant also made material improvements in her deposition by stating that father in law of respondent no.2 had prayed for not lodging complaint against respondent no.2 and by deposing that respondent no.2 also used to Page: 15/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
threaten her husband, which allegations are missing in the original complaint Ex.PW1/A.
41. Therefore, on the ground of material improvements made by the appellant in her testimony recorded before the court, her testimony does not inspire any confidence and was rightly disbelieved by the ld. Trial court.
42. Further, the best witness who could have deposed regarding the presence of respondent no.2 at the house of the appellant on 03.07.2009 was the daughter of the appellant. However, she was never examined in this case to corroborate the allegations of the appellant. Therefore, her non examination also makes this court raise an adverse inference that daughter of the appellant never witnessed the presence of respondent no.2 at her house on 03.07.2009 and that is why, she was never examined in this case. The contention of ld.counsel for appellant that since daughter of the appellant was minor therefore, she was not Page: 16/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
examined is required to be rejected as all persons are competent to testify in the court as per Section 118 of Indian Evidence Act, 1872.
43. Further in the present case, the defence of respondent no.2 was that in order to avoid the payment of rent, false implication of respondent no.2 has been made.
44. In support of his defence, respondent no.2 has examined himself as DW1 and he has deposed that appellant had refused to pay the rent and after vacation of the tenanted premises, appellant was threatening to falsely implicate respondent no.2 in a false case, for which a complaint was given to the police on 20.09.2009 Mark A. Although Mark A was a photocopy of the complaint, but since the same was not objected to by the prosecution at the time of his tendering in evidence, therefore it was deemed to have been admitted by the prosecution and was rightly read by the ld. Trial court in evidence.
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45. Further even in the cross examination of DW1, ld. Addl. P.P. for respondent no.1/State had relied upon the complaint dated 20.09.2009 made to SHO P.S. Najafgarh. Therefore, the complaint Mark A dated 20.09.2009 was admissible in evidence and as per the said complaint, respondent no.2 apprehended his false implication as appellant was threatening on telephone to do so. Further, complaint dated 20.09.2009 Mark A is prior to the complaint of appellant made on 21.10.2009. Therefore, the false implication of respondent no.2 also could not be ruled out in the present case.
46. The defence of respondent no.2 was further proved by Sh. Vijay Pal, who was examined as DW 4, who is an independent witness.
47. In the light of the above discussion, ld. Trial court had rightly disbelieved the testimony of the appellant on the ground of there being several discrepancies and improvements made by the Page: 18/19 CA No.80/17 Baby Gupta vs State (Govt. of NCT of Delhi) & Anr.
appellant. Further, even the delay in lodging the FIR was not properly explained in the present case. Therefore, the ld. Trial court rightly, vide the impugned judgment, had acquitted respondent no.2 by giving him benefit of doubt. I do not find any illegality or infirmity in the impugned judgment of the ld. Trial court. The appeal is, accordingly dismissed.
48. In terms of Section 437A CrPC, let respondent no.2 furnish bail bond of Rs.10,000/ with one surety in the like amount.
49. Trial court record be sent back to ld. Trial court alongwith a copy of this judgment.
50. Appeal file be consigned to Record Room.
VIKAS Digitally signed by
VIKAS DHULL
DHULL Date: 2018.02.28
16:07:48 +0530
Announced in the open court (Vikas Dhull)
Dated : 28.02.2018 Spl. Judge (PC Act) CBI03
Dwarka/New Delhi
Page: 19/19