Delhi District Court
Hitesh vs State Of Nct Of Delhi on 17 May, 2022
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Appeal No. 206/2019
PS- Pul Prahlad Pur
U/Sec. 354/509/506/34 IPC
In the matter of :-
Hitesh
S/o Sh. Ram Gopal
R/o E-52/2, Pul Prahladpur
New Delhi.
.... Appellant
Versus
State of NCT Of Delhi.
.... Respondent
Date of Institution : 10.04.2019
Date of Reserve for order : 25.04.2022
Date of Judgment : : 18.05.2022
ORDER
1. Appellant namely Hitesh @ Ashu has filed present appeal thereby challenging judgment of conviction dated 20.02.2019 and order on sentence dated 20.03.2019 passed by Ld. Trial Court in FIR No.119/2016, U/S 354/509 IPC, Police Station Pul Prahladpur.
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2. Ld. Trial Court convicted appellant for offences punishable u/s 354 IPC and also for Section 509 IPC, vide impugned judgment. Ld. Trial Court sentenced appellant to undergo simple imprisonment for one year for offence punishable u/s 354 IPC. Further, appellant was sentenced to pay fine of Rs.5000/- for offence punishable u/s 509 IPC and in default, he was directed to undergo simple imprisonment for two days.
3. Appellant herein was one of the accused persons, before Ld. Trial Court. Apart from appellant, case was registered against co-accused persons namely Santosh, Siddharth Kumar and Ram Gopal who are mother, brother and father of appellant. Appellant shall be referred as accused in my subsequent paragraphs.
4. Trial Court record revealed that criminal law was set into motion, on the complaint of complainant Ms. 'X'. Complainant had filed written complaint Ex.PW1/A, in which she had alleged that on 30.04.2016 when she came out of her house i.e. E-133, Pul Prahladpur, New Delhi 44, for taking her scooty, she found accused Hitesh @ Ashu. At that time, friend of complainant Ms. 'Y' was also present there. On seeing Ms. 'X' and Ms. 'Y', accused made comments "aaj ye naye mehman kaha se aaye hai aur aaj yu ban than ke kaha jaa rahe ho". When complainant confronted accused, as to why he made said remarks, accused replied "tu kya ban rahi hai". Accused thereafter, caught hold of hand of complainant and hit the chest of complainant with his hand and pushed her. Accused also gave abuses to complainant and CA No. 206/2019 2 of 18 Hitesh Vs. State threatened complainant by saying "me tujhe dekh lunga aur jo tujh par banta ho who kar lena aur jada banegi toh tujhe jaan se maar dunga, tu abhi mujhe nahi jaanti hai". Thereafter, complainant went to the house of accused where she met brother of accused namely Siddharth and parents of accused. All the said family members along with accused started beating complainant and threatened her with dire consequences, in case she dared to come to their house. Thereafter, complainant made call to police at 100 number and when police reached at the spot, she gave her complaint in which she had made above allegations. On the basis of said complaint, FIR was registered and investigation ensued.
5. During investigation, IO SI Ishwar Singh, prepared site plan Ex.PW1/B, recorded statements of witnesses, got statement of complainant recorded u/s 164 Cr.P.C as Ex.A-2, arrested accused persons vide arrest memos Ex.PW1/E, Ex.PW5/B, Ex.PW5/C & Ex.PW5/D. IO also prepared personal search memo of accused vide memo Ex.PW3/A and recorded his disclosure statement Ex.PW5/E. Thereafter, investigation was completed and accused persons were charge-sheeted, for offences punishable u/s 354/509/506/34 IPC.
6. After filing of chargesheet, Ld. Trial Court took cognizance of the offences and summoned accused persons. Thereafter, arguments on charge were heard and all accused persons were charged with offence punishable u/s 506/34 IPC. Accused Hitesh was also charged with offences 354/509 IPC. Accused persons did not plead guilty and claimed trial. Thereafter, matter was fixed for prosecution evidence.
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7. During trial, accused persons admitted Copy of FIR, Proceedings u/sec. 164 CrPC, DD Entry No. 32, Certificate u/sec. 65B of Indian Evidence Act for FIR and Rukka as Ex.A-1 to Ex.A-5 respectively u/s 294 Cr.P.C. Prosecution examined five witnesses in total. PW1 complainant and PW2, friend of complainant, reiterated their version, based on the complaint of complainant. Same needs no repetition. Complainant identified her statement which she had made before the police as Ex.PW1/A. She identified site plan Ex.PW1/B which IO had prepared in her presence. She identified her statement u/s 164 Cr.P.C as Ex.PW1/D and the application IO had made to Ld. Magistrate as Ex.PW1/C. PW2 Ms. 'Y' deposed facts, in tune with the contents of complaint of complainant, in her testimony. Same are not repeated here for the sake of brevity.
8. PW3 HC Kamla Prasad deposed that he had joined investigation on 20.04.2016 in this case. During investigation, IO had arrested accused vide memo Ex.PW1/A, which noted her signatures at point B. As per him, IO had conducted personal search of accused vide memo Ex.PW3/A.
9. PW4 Ct. Santvir deposed that on 30.04.2016 he along with IO SI Ishwar had gone to the spot of occurrence i.e. E-133, Pul Prahladpur, where complainant had given written complaint to the IO, on which IO had prepared rukka, which was given to him, for registration of FIR. Consequently, he went to police station, with the said rukka and got the FIR in question registered. Thereafter, he came back at the spot and CA No. 206/2019 4 of 18 Hitesh Vs. State gave copy of FIR with original rukka to the IO.
10. PW5 SI Ishwar Singh was the IO in this case. In his testimony, he identified the rukka Ex.PW5/A, site plan Ex.PW1/A, arrest memo Ex.PW1/E, arrest memos Ex.PW5/B to Ex.PW5/D, disclosure statement of accused Ex.PW5/E, which he had prepared during investigation. He also deposed that he had recorded statements of witnesses and had concluded investigation, as mentioned in my preceding paragraphs which are not repeated here for the sake of brevity.
11. After recording testimonies of above witnesses, prosecution closed its evidence and matter was fixed for recording of statement of accused.
12. All the incriminating evidence was put to accused persons under Section 313 Cr.P.C, which they denied. All of them took the plea of being falsely implicated in this case. They preferred to lead defence evidence and therefore, matter was fixed for defence evidence.
13. Accused persons examined two witnesses namely Smt. Kamlesh Sharma as DW1 and Neeraj Kumar as DW2.
14. DW1 Smt. Kamlesh Sharma deposed in her testimony that on 30.04.2016, when she was present in her house i.e. E-86, Pul Prahladpur, New Delhi, around 08.30PM she saw that accused Ashu CA No. 206/2019 5 of 18 Hitesh Vs. State was laughing while seeing kids playing. At that time, complainant Ms. 'X', who was residing opposite to the house of accused Ashu came downstairs and started accusing Ashu of laughing at her. Accused Ashu denied the same and thereafter, complainant left the spot by warning accused Ashu "me tujhe dekh lungi". Thereafter, nothing happened and around 09.15PM, this witness saw complainant being accompanied with police, going to the house of accused Ashu. This witness did not know as to what had happened at the house of accused Ashu. Consequently, parents of accused Ashu were taken to the police station and she received call from Smt. Santosh (mother of accused Ashu) to reach at the police station. Consequently, this witness reached the police station where she made complainant understand that complainant should not bring the said matter to the police. On the next day, this witness told Smt. Santosh that complainant was relative of one Ishwar Singh who lived in D-Block in adjacent gali and suggested that matter be compromised, with the help of said relative. On the same day, around 09.00PM Ishwar Singh and other relatives of complainant gathered at the house of complainant. Accused persons had gone to the house of complainant for apologizing but complainant locked the accused persons and called police. At that time, entire neighbourhood came to know that something had happened between the parties. Thereafter, accused persons were arrested and except accused Ashu, rest of them returned to their home. She also deposed that complainant had approached her not to come to the court for deposing, few days prior to her recording of testimony.
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15. DW2 Neeraj Kumar deposed that on 30.04.2016 around 09.00PM, he was present at his shop at ground floor, E-89 Pul Prahladpur, New Delhi. At that time, he saw complainant coming on a bike with a policeman and shouting while facing the house of accused "isko bahar nikalo". When this witness inquired from complainant, she told him that he should not be concerned with the matter and that she will deal with the matter by herself. The policeman accompanying complainant did not tell this witness anything. Father and mother of accused Ashu were taken to police station. All the people of neighbourhood went to police station but they were threatened and forced out of the police station. After much deliberation, father of accused Ashu was discharged. On the next day, around 07.30PM this witness received a call from Ashu who told him that for compromising the matter with complainant, he should come. After 5-10 minutes, this witness heard voice of mother of accused Ashu. This witness estimated that mother of accused was being beaten. Within a minute, 15-16 policeman arrived thereafter, accused Ashu and his parents were arrested and were taken to police station. This witness also went to police station but accused persons were not freed from police station.
16. After examining said witnesses, accused persons closed their evidence and matter was fixed for final arguments.
17. After hearing final arguments, Ld. Trial Court passed impugned judgment and order on sentence.
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18. Accused herein has challenged impugned judgment and order on sentence by claiming that Ld. Trial Court ignored the principles of law, governing law of appreciation of evidence. Ld. Counsel for accused argued that Ld. Trial Court should have given benefit of doubt to accused, instead of convicting him. He also argued that complainant is a Delhi Police Constable who misused her powers and made false complaint to the police, which resulted in passing of impugned judgment. As per him, both complainant 'Ms. X' and her friend 'Ms. Y' made false depositions against accused. Complainant was basically interested in taking premises of accused on rent, which was denied by accused and based on which complainant with ill motive lodged complainant against accused. He also highlighted the fact that there were material contradictions in the testimonies of complainant and her friend 'Ms. Y' which Ld. Trial Court ignored. Further, non-joining of public persons by the IO and absence of abusive language in original complaint of complainant made the prosecution story doubtful. Hence, it was argued that impugned judgment and order on sentence be set aside.
19. Ld. Addl. PP for the state opposed the appeal and argued that Ld. Trial Court passed correct judgment and order on sentence.
20. Complainant through her counsel opposed the appeal vehemently.
21. Arguments heard. Record perused.
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22. Considering the grounds of appeal, it has to be decided, as to whether appreciation of evidence, done by Ld. Trial Court in present matter, was correct or not. In order to decide said issue, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a CA No. 206/2019 9 of 18 Hitesh Vs. State whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.
23. So, in the wake of aforesaid observation, it is clear that testimonies of witnesses have to be seen in totality. Minor discrepancies should not be considered in discarding their testimonies. Those contradictions which go to the root of the matter, have to be borne in mind while discarding testimonies of witnesses. Keeping in mind said understanding of law of appreciation of evidence, I am proceeding further.
24. Since, present appeal is preferred by accused Hitesh only, so I have to decide, whether Ld. Trial Court had passed the impugned judgment and order on sentence, on the basis of proper appreciation of facts, law and evidence, brought on record by the parties or not, as against accused Hitesh ?
25. After considering the Trial Court record, I find that complainant 'Ms. X' had made categorical allegations against accused in her complaint Ex.PW1/A to the effect that accused had made following comments against her.
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Aaj ye naye mehmaan kahan se aaye hain or aaj yuin ban than k
kaha jaa rahe ho.
Tu kya ban rahi.
Mai tujhe dekh lunga or jo tujh par banta hai wo kar lena or jyada
banegi to tujhe jaan se maar dunga, tu mujhe abhi janti nahi hai.
26. Above comments were made by accused against complainant, as per complaint Ex.PW1/A. In her statement u/sec. 164 CrPC Ex.PW1/D, complainant again reiterated that accused had made comments "naye mehmaan aaj ban than kar kahan jaa rahe hain". In her examination-in- chief, complainant reiterated the comments as mentioned in her complaint Ex.PW1/A to the effect that accused had commented "aaj ye naye mehmaan kahan se aaye hain, ye ban than k kahan jaa rahe hain". Complainant did not take u-turn with regard to said facts, in her cross- examination. She identified accused in the court, being the person, who had made above remarks. Those remarks were uncalled for. Ld. Trial Court rightly concluded in the impugned judgment that those remarks insulted the modesty of complainant and attracted the penal provision of Sec. 509 IPC.
27. Besides that, complainant in her complaint Ex.PW1/A, in her statement u/sec. 164 CrPC Ex.PW1/D and in her testimony recorded before the court categorically deposed that accused had pulled her hand, that accused had put his hand on the chest of complainant, that accused had pushed complainant and had abused her with cuss words. Ld. Addl. PP for the state asked complainant as to what verbal abuses were given CA No. 206/2019 11 of 18 Hitesh Vs. State by accused and in response to the same, complainant deposed that accused had called her "randi, teri jaisi randi maine bahut dekhi hai, saali, maa ki chut, behan ki laudi, randi, haramzadi and kutiya". No doubt those details of verbal abuses were not mentioned in the complaint of complainant and in the statement of complainant u/sec. 164 CrPC, but those details of abuses were deposed by complainant in the court, during recording of her testimony. Ld. Counsel for accused while cross-examining her, did not give any suggestion to the effect that accused had not made said remarks or that those remarks were an afterthought. No cross-examination was done by accused, to discredit complainant's testimony, on the basis of the probability that accused had not made said remarks and abuses. Therefore, details of those abuses, only indicated the possibility of occurrence of alleged incident. There is no other possibility which I can foresee, in such circumstances. Based on said appreciation, trustworthiness of the testimony of complainant, cannot be doubted.
28. Complainant in her testimony had deposed that accused had pulled her by her hand and had touched her breast, on the day of incident. Those facts were uniformly deposed by her in her complaint Ex.PW1/A and also in her statement u/sec. 164 CrPC Ex.PW1/D. Based on said deposition, Ld. Trial Court rightly concluded that accused had committed offence punishable u/sec. 354 IPC, as by doing said acts intentionally, accused had outraged the modesty of complainant.
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29. Complainant was cross-examined at length. She had deposed "merit chhati par hath mara or fir mujhe dhakka diya", in her complaint Ex.PW1/A but not in her examination-in-chief. By not mentioning that fact, the complaint of complainant Ex.PW1/A, did not loose its significance. It was not suggested to complainant that her complaint was motivated or that she had not disclosed the said facts in her examination-in-chief due to some ulterior motives. Coupled with the same, her attention was drawn towards her deposition that accused Hitesh had called her "randi, teri jaisi randi maine bahut dekhi hai, saali, maa ki chut, behan ki laudi, randi, haramzadi and kutiya", which she deposed in her examination-in-chief but not in her complaint Ex.PW1/A and in her statement Ex.A-2. The said fact again did not make her testimony doubtful for the reason that it was not deposed by her, on her own. That fact was asked by Ld. Addl. PP for the state. She was questioned by Ld. Addl. PP for the state to specify the verbal abuses given by accused persons. In response to the same, she answered that accused Hitesh had made aforesaid remarks against her. Therefore, said deposition was basically explanatory in nature. It did not give the colour of false deposition. Even otherwise, those facts, as such were minor improvements in the statement of complainant. The said improvements, basically cleared and clarified the chain of events. Those facts, as such did not change the chain of events, completely or to a substantial level, in the prosecution story. Further, Ld. Counsel for accused did not question complainant as to why those facts were not deposed by her earlier and why those facts were deposed by her in the court, for the first time. In such circumstances, deposition of said facts, CA No. 206/2019 13 of 18 Hitesh Vs. State did not create doubt regarding veracity of testimony of this witness. Even otherwise, the said manner in which complainant was confronted with her previous statements, was not legally proper in the wake of judgment titled as Tehsildar Singh & Anr. Vs. The State of Uttar Pradesh, 1959 AIR 1012.
30. Fact of the matter remains that testimony of complainant remained unshaken after her cross-examination, with regard to identity of accused, role of accused and the actions of accused in the alleged incident. Ld. Trial Court rightly believed the testimony of complainant.
31. PW2- 'Ms. Y' was the friend of complainant, who had witnessed the alleged incident on 30.04.2016, as she was present at the spot. She deposed that accused had commented "aaj naye naye mehmaan kahan se aa rakhe hain, aise saj dhaj kar kahan jaa rahe hain". She also deposed that complainant had made statement Ex.PW1/A to the police and that she had also made statement to the police. She identified accused in the court. In her cross-examination, she stuck to her above version. She was questioned with regard to the number of scooty of complainant, the width of gali, the details of public persons at the spot, the time when PCR had arrived at the spot, the time when statement of complainant was recorded by police, the time when her statement was recorded by the IO, the details of her duty hours, the time she had gone to the house of accused with complainant and the residence of accused. All those aspects were not relevant for the purpose of adjudication of this case. Her want of knowledge regarding above facts, did not make CA No. 206/2019 14 of 18 Hitesh Vs. State her testimony doubtful, accordingly. She refuted the suggestions of false implication of accused in this case. Admittedly, she was a constable in Delhi Police. Being a government employee and being a police personnel, I failed to appreciate, as to why, without any reason, she would name accused in alleged crime. Therefore, I did not find her testimony doubtful.
32. Rest of the prosecution witnesses were police witnesses. All of them deposed, their respective roles, which they performed during investigation. Same are mentioned by me above and needs no repetition. After cross-examining them, accused failed to make out any case, based on which I can conclude that they had been part of faulty or illegal investigation. Non-joining of public persons by itself did not make the testimony of IO SI Ishwar Singh and HC Kamla Prasad, doubtful. Often people refuse to join investigation. In this case, complainant and her friend had made specific allegations against accused. As such, police had no doubt to see the allegations of complainant and her friend with the prism of suspicion. All the said police officials refuted that accused was falsely implicated in this case and that all the investigation was done by sitting in the police station. Therefore, testimonies of aforesaid police officials stood the acid test of cross-examination.
33. Thus, testimonies of prosecution witnesses were trustworthy and reliable.
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34. So far as defence witnesses are concerned, accused had examined two witnesses viz., DW1- Smt. Kamlesh Sharma and DW2- Neeraj Kumar.
35. DW1- Smt. Kamlesh Sharma deposed in her testimony that accused Ashu (that is accused Hitesh) was laughing on kids, on 30.04.2016 around 8.30 pm. She was resident of E-86, Pul Prahlad Pur, New Delhi. She did not explain categorically, as to what was the reason, based on which accused was laughing on kids, who are playing there. The said non-explanation made her testimony doubtful. She further deposed that complainant 'Ms. X' returned to her house and threatened accused Hitesh by saying "main tujhe dekh lungi". She did not explain in her testimony, as to why, complainant had made said remarks against accused, just like that. Later on, as per her testimony, complainant went inside the house of accused Hitesh with policeman and consequently police took parents of accused Hitesh to police station. She further deposed that on the next day, she suggested that matter can be compromised with the help of one Ishwar Singh, relative of complainant, who was resident of adjacent gali. She did not explain the details of the said "matter". She did not explain as to why she was interested in getting the matter compromised. On the face of it, she was a complete stranger to the matter, between accused and complainant. None of the parties to the said matter had approached her, seeking her guidance for pacifying the issue. In such circumstances, conduct of this witness, for getting the matter compromised, was highly doubtful. More so where, she was a mere neighbour to complainant and accused.
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Coupled with the same, she had deposed that accused persons had gone to the house of complainant for apologizing. She did not explain the reason for which accused persons had gone to the house of complainant for apologizing. Absence of details in this regard, made her testimony doubtful. The only possibility, which remained was that incident had taken place, in the manner complainant had deposed in her testimony and for tendering apology, accused persons had gone to the house of complainant. That possibility only supported prosecution story. Thus, testimony of DW1 did not help the cause of accused.
36. So far as DW2- Neeraj Kumar is concerned, he was again a neighbour, residing near the house of complainant. He deposed that on 30.04.2016, around 9 pm, complainant had come to the house of accused and had remarked "isko bahar nikalo". He did not explain the reason of said threat, allegedly being given by complainant to accused. He did not disclose the chain of events, leading to the lodging of FIR in question. In other words, he failed to explain the reason of sour relations between complainant and accused persons. Therefore, his testimony did not help the cause of accused persons.
37. Based on aforesaid appreciation, I conclude that testimonies of defence witnesses, were neither trustworthy nor reliable.
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Offences Made Out
38. On the basis of reliable and trustworthy testimonies of prosecution witnesses, I find that accused had committed offence punishable u/sec. 354 r/w sec. 509 IPC. Ld. Trial Court rightly had convicted accused for the said offences. Appeal has no merits. Accordingly, present appeal stands dismissed.
Announced In The Open Court Today [PRASHANT SHARMA] ASJ-02, South-East/Saket/Delhi 18.05.2022 CA No. 206/2019 18 of 18 Hitesh Vs. State