Delhi District Court
2.Title Of The Case : State vs . Yunush Khan on 18 April, 2017
IN THE COURT OF MS. MANU GOEL KHARB
METROPOLITAN MAGISTRATE , MAHILA COURT - 03,
DISTRICT SOUTHWEST, DWARKA, NEW DELHI
1.Case No. : 422554/16
2.Title of the case : State Vs. Yunush Khan
FIR No. 1113/14
PS Bindapur
3.Date of institution : 30.01.2015
4.Date of reserving Judgment : 29.03.2017
5.Date of pronouncement : 18.04.2017
J U D G M E N T :
(a) The date of commission 08.10.2014
(b) The name of complainant Complainant 'A'
(c) The name of accused person Yunush Khan
S/o Sh. Yusuf Khan R/o C1148,
Madhu Vihar, New Delhi.
(d) The offence complained of 354A/506 IPC
(e) The plea of the accused Pleaded not guilty
(f) The final order Acquitted
(g) The date of such order 18.04.2017
Brief facts for the decision of the case
1. The facts in brief in the present case are that on 08.10.2014 on receipt of DD no. 71B, regarding assault and threaten to one lady, on direction of SHO, IO/ HC Jagbir Singh along with FIR No.1113/14 1 of 21 State Vs. Yunush Khan W/SI Nirmal went to the spot where complainant met them and gave her statement to IO.
It was stated that the complainant 'A' was a tenant of H.no. A1423, Gali no. 7, Som Bazar, Madhu Vihar, New Delhi and she has taken the aforementioned place on rent on 30.08.2014 and today i.e. 08.10.2014 at about 7:35 PM when she came at DDA Park along with her daughter Kajal, accused Yunush came in front of her and started quarreling with her and slapped her, threatened her "tumhare aj se ghinti ke din hai, tera keema banakar namakmirchi lagakar kacha kha jaunga, and forced her to take back her court case and further threatened to kill her. Further complainant refused to get her medical examination conducted .
2. On the basis of aforesaid complaint, FIR was lodged against the accused Yunush Khan on 08.10.2014.
After the usual investigation, charge sheet for the offence under Section 354A/506 IPC was prepared against the accused.
FIR No.1113/14 2 of 21 State Vs. Yunush Khan
3. The aforesaid chargesheet was filed before the court on 30.01.2015, whereupon the cognizance of the offence u/s 354A/506 IPC was taken against the accused and copy of the challan was supplied to the accused in compliance of the provisions of Section 207 CrPC.
4. After hearing the arguments, charge was framed against the accused on 19.06.2015. Accused Yunush was charged for the alleged commission of the offence under Section 354A/506 (PartI)/509 IPC to which the accused pleaded "Not Guilty"
and instead claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. During the course of the trial, prosecution examined 05 witnesses, out of which 01 was public witness and rest were formal witnesses, to substantiate the accusations levelled against the accused person.
FIR No.1113/14 3 of 21 State Vs. Yunush Khan
6. PW1/complainant 'A' deposed that on 08.10.2014 she along with her daughter went to DDA Park at around 7:35 pm for a walk. When she was about to reach the park, accused Yunush Khan came in front of DDA Flats and started quarreling with her and slapped her and tore her nighty. He further said "tumhare aaj se ginti ke din hai, tera keema bana kar namak mirch laga kar kaccha kha jaunga". He pressurized her to withdraw a case of rape and another case of misbehaving with her daughter. After registration of aforementioned cases, accused time and again is troubling her and pressurizing her to withdraw the cases. He used filthy language against her and abused her. Thereafter, complainant called at 100 number and police officials came. Police officials recorded her statement Ex.PW1/A and prepared site plan at her instance. Thereafter, statement of complainant u/s 164 Cr.PC Ex. PW1/B was recorded.
PW1 was duly crossexamined by the Ld. Defence counsel.
FIR No.1113/14 4 of 21 State Vs. Yunush Khan
7. PW2 HC Babu Lal deposed that he registered the present FIR Ex. PW2/A and made endorsement of the rukka Ex. PW 2/B. PW2 was not crossexamined despite given opportunity.
8. PW3 Ct. Ravinder deposed that on 08.10.2014 he along with IO/HC Jagbir Singh and W/SI Nirmal went to spot i.e. DDA Park near DDA Flats, Bindapur and met complainant 'A' where W/SI Nirmal recorded the statement of complainant which was attested by W/SI Nirmal and PW3 was sent to PS for registration of FIR along with original tehrir and after registration of FIR, he came to spot and handed over the original tehrir and copy of FIR to IO/HC Jagbir Singh. Accused Yunush Khan was given notice u/s 41 A Cr.PC after interrogation by the IO.
PW3 was duly crossexamined by the Ld. Defence counsel.
9. PW4 W/Insp. Nirmal deposed regarding investigation of the FIR No.1113/14 5 of 21 State Vs. Yunush Khan case and on the lines of PW3 Ct. Ravinder. PW4 was duly crossexamined by the Ld. Defence counsel.
10. PW5 ASI Jagbir Singh deposed regarding the investigation of the case and on the lines of PW3 Ct. Ravinder and proved DD no. 71B Ex. Pw5/A, site plan Ex. Pw5/B, notice u/s 41.A Cr.PC Ex. PW5/C and statement of complainant recorded u/s 164 Cr.PC as Ex. PW5/D. He further submitted that he recorded the statement of the witnesses and after completion of the investigation, charge sheet was filed in the court. PW5 was duly crossexamined by the Ld. Defence counsel.
11. Thereafter, Prosecution Evidence was closed on 22.12.2016.
12. Statement of accused Yunush Khan under Section 313 CrPC r/w Section 281 CrPC was recorded on 02.01.2017 in which all the incriminating evidence brought on record against the accused persons was put to him. Accused submitted that he FIR No.1113/14 6 of 21 State Vs. Yunush Khan has been falsely implicated in the present at the instance of complainant and he has not committed any offence. He stated that he does not wish to lead DE. Thereafter, the matter was fixed for final arguments.
13. I have heard the arguments advanced by the Ld. APP for the State and counsel for the accused and have perused the record of the case.
14. First of all let us quickly go through the relevant sections and the necessary ingredients.
Section 354 A of IPC defines Sexual harassment and punishment for sexual harassment (1) A man committing any of the following acts
(i) physical contact and advances involving unwelcome and explicit sexual overtures ; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a women; or
(iv) making sexually coloured remarks, shall be guilty of the offenc of sexual harassment. FIR No.1113/14 7 of 21 State Vs. Yunush Khan (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of subsection (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
Section 509 of IPC defines Word, gesture or act intended to insult the modesty of a women whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
Section 506 of IPC defines Punishment for criminal intimidation Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
15. Now let us examine the prosecution evidence brought on FIR No.1113/14 8 of 21 State Vs. Yunush Khan record against the accused.
16. In order to prove the offence under Section 354A IPC against the accused Yunush, prosecution was required to prove beyond reasonable doubt that on the date of incident, accused Yunush, used criminal force/ assaulted the complainant 'A' with an intention to outrage her modesty and sexually harassed her.
17. The case of the prosecution is that on 08.10.2014, at DDA park, near DDA Flat, Bindapur, accused namely Yunush Khan assaulted the complainant and tried to disrobe her. He also abused her in a manner to insult her modesty and threatened the complainant.
18. First and foremost, the only witness of the prosecution in this case is the complainant herself. The remaining witnesses are police witnesses who were not present when the incident in question occurred. From the perusal of entire evidence led by FIR No.1113/14 9 of 21 State Vs. Yunush Khan the prosecution, it is clear that complainant is the only material witness to this case. She has deposed that on 08.10.2014, she had gone with her daughter to DDA park for a walk at around 7.35 PM when the accused came to the spot and started quarreling with her and also slapped her. He also tore her nighty and threatened her. However, there are various contradictions and inconsistencies in the various statements made by the complainant before this court and before the other courts in cases filed by the complainant against the accused. As per her statement recorded u/s 164 Cr.P.C, the incident in question occurred on 07.10.2014 whereas, as per the contents of the charge sheet and her testimony in the court, the same occurred on 08.10.2014. When the matter was reported to the police, the police came after 8 hours and one police officer namely Nirmal slapped her. The same is not mentioned in her original complaint Ex. PW 1/A and there is no mention of tearing of clothes of the complainant in the original complaint Ex. PW 1/A. FIR No.1113/14 10 of 21 State Vs. Yunush Khan
19. In her testimony, PW1 admitted, at the time of her cross examination, that she had never intended to marry the accused. She was confronted by the Ld. Counsel for the defence with crossexamination dated 04.02.2015 in FIR No. 434/14 u/s 376/323 IPC PS Dabri before the court of Sh. Virender Bhatt, Ld. ASJ, Dwarka ( Ex. PW1/D1), wherein, the complainant admitted that she wanted to marry the accused. She denied going with the accused for shopping and travelling but she was again confronted with photographs Ex. PW1/D2 (colly.
4) wherein, the complainant is seen travelling with the accused on his scooty in a market. She even admitted to going to jail for meeting the accused while he was in custody.
20. In the instant case, the complainant has submitted that at the time of incident there were many public witnesses who witnessed the incident in question but no such witness has been produced by the prosecution in support of the case of the complainant. The complainant herself is unable to name even one such public witness who was present when the accused FIR No.1113/14 11 of 21 State Vs. Yunush Khan slapped her and tried to disrobe her. She herself has not stayed consistent with her original version. Rather, she appears to be habitual in complaining against the accused. As per her own admission, she and her daughter have filed seven cases against the accused. What is even more noteworthy is that no such nighty has been seized by the police which the complainant had alleged to be torn by the accused. Neither has the police seized such clothes nor has the complainant ever produced the same before the police or the court.
21. The above detailed contradictions and improvements made by the complainant in her statements recorded at various stages of investigation and trial have diminished the credibility of the complainant and have reduced her status to that of a not wholly, reliable witness whose testimony cannot be relied upon without corroboration. In this context, it is noteworthy that the Hon'ble Supreme Court of India has observed in several decided cases that although a judgment of conviction can be recorded on the basis of testimony of sole eye witness FIR No.1113/14 12 of 21 State Vs. Yunush Khan as section 134 of the Indian Evidence Act 1872 does not insist upon plurality of witnesses, yet caution has to be exercised in relying upon the testimony of the sole eye witness. The Hon'ble Apex Court has time and again reiterated that when the testimony of sole eye witness is full of contradictions of embellishments the same should not be relied upon to record a judgment of conviction. In the case of Jarnail Singh v. State of Punjab (2009) 3 SCC 391 the Hon'ble Supreme Court of India had made similar observations in para 26 and 30 of the judgment which are reproduced below :
26. it is no doubt true that conviction could be based on the sole testimony of a solitary eyewitness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh vs. State of Haryana this court held that : "What is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of FIR No.1113/14 13 of 21 State Vs. Yunush Khan (single witness), it is necessary to examine that evidence critically."
22. Likewise, in Joseph vs. State of Kerela, AIR 2003 SC 507 (1) the Hon'ble Supreme Court of India had observed in para 13 and 14 of the judgment that when the prosecution rests upon the sole testimony of one eye witness, it should be wholly reliable and even when such witness is an injured witness, his presence at the spot should not be doubtful. Observation is made in paras 13 and 14 of the judgment are reproduced as under :
13. In a case of this nature when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. What is urged before the Court is that FIRExhibit P1 contained signature of a doubtful character which PW 1 himself admitted as having been different from the one given by him on the acknowledgment of having received the summons. How far reliance can be placed upon his evidence when PW 1 stated that he had rushed to the junction to inform PW 2 to PW 4 and thereafter rushed back to the place of the incident, while the deceased also run on FIR No.1113/14 14 of 21 State Vs. Yunush Khan the western side of the place of incident though he was profusely bleeding and he got hold of his would by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of PW 1 could have seen caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly believe the statement made by him that he was profusely bleeding. If really the witness (PW1) was wearing blood stained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial Court was impossible.
14. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this FIR No.1113/14 15 of 21 State Vs. Yunush Khan standard when prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though sch witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.
23. In the present case also, the prosecution case rests upon the testimony of the sole eye witness who is not wholly reliable and has made several improvements and contradictions in her statements and depositions before the police and this court and other courts. There are several contradictions and improvements in the statement of the complainant recorded by the police i.e. Ex. PW 1/A and also while getting recorded her statement u/s 164 Cr.P.C. Also, her stand before the court of Ld. ASJ when she has submitted that she wanted to marry the accused totally belies her stand that she could have been molested and abused by the accused and the same had resulted in outrage to her modesty. The photographs on record showing the complainant roaming in the market with the accused on a FIR No.1113/14 16 of 21 State Vs. Yunush Khan bike totally demolish the case of the prosecution. Although PW 1 is a victim in the present case and is the sterling witness of prosecution, however, her testimony is full of contradictions in respect of material particulars pertaining to the commission of the alleged offences by the accused and therefore, it would be highly unsafe to record a judgment of conviction against the accused on the basis of unreliable deposition of this sterling witness of prosecution. In this context, the Hon'ble Supre Court of India was pleased to observe in the case of Rai Sandeep @ Deepu vs. State of NCT of Delhi, Delhi (2012) 8SCC 21, in Criminal Appeal No. 2486 of 2009 decided on 07.08.2012 that the testimony of sterling witness should be unassailable and the court should be in a a position to accept the same on its face value without any hesitation. Relevant extract of observation made in para 15 of the judgment is reproduced below :
15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the FIR No.1113/14 17 of 21 State Vs. Yunush Khan version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged FIR No.1113/14 18 of 21 State Vs. Yunush Khan against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
In another similar case the Hon'ble Apex Court had once again cautioned that although evidence of prosecutrix in a case pertaining to sexual offence such as rape should be given predominant consideration, however, if the statement of prosecutrix belies logic and is full of contradiction then accepting the same would be doing violence to the principles which govern the appreciation of evidence in a criminal trial. Relevant extract of observation made by Hon'ble Apex Court FIR No.1113/14 19 of 21 State Vs. Yunush Khan in the decided case of Trameezuddin @ Tammu vs. State of NCT of Delhi, (2009) 14 (ADDL) SCR, 80; (2009) 15 SCC 566 decided on 26.08.2009 is reproduced below in the context.
It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.
24. Applying the ratio of above cited decided cases of Rai Sandeep @ Deepu vs. State of NCT of Delhi and Tameezuddin @ Tammu vs. State of NCT of Delhi, to the facts of the present case, it can be safely concluded that the testimony of PW 1 is far from being consistent and does not inspire the confidence of the court. The various contradictions and improvements made by the complainant during the different stages of investigation and trial have given a fatal blow to the case of the prosecution. As a consequence, the prosecution has failed to prove his case against the accused FIR No.1113/14 20 of 21 State Vs. Yunush Khan beyond a reasonable doubt and the accused entitled to benefit of doubt. He is acquitted of all the charges levelled against him on account of lack of sufficient incriminating evidence against him.
25. In compliance of provisions of Section 437A Cr.P.C, accused has furnished personal bond and separate surety in the sum of Rs. 10,000/ each. They are accepted. The accused and his surety will remain bound by the personal bond and surety bond respectively furnished by them for next six months with effect from today. Previous bail bonds furnished by the accused during investigation and trial are cancelled and surety discharged.
26. File be consigned to Record Room after compliance of necessary formalities.
ANNOUNCED IN THE OPEN COURT (ARCHANA BENIWAL) th TODAY ON 18 April, 2017 MM,MAHILA COURTS 03 DWARKA: NEW DELHI FIR No.1113/14 21 of 21 State Vs. Yunush Khan