Delhi District Court
(Judgment) Sachin Gupta & Ors. vs State. on 25 April, 2018
(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17
U/s 374 CrPC
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)
(NORTH-WEST): ROHINI COURTS: DELHI
CA No. 82/2017
CNR No.: DLNW01-006402-2017
1. Sachin Gupta
S/o Sh. Ram Sewak
R/o P3/164, Sultanpuri,
Delhi.
2. Deepak @ Mithun
R/o P-3/164, Sultanpuri,
Delhi. ...........................Appellants
Vs.
State ........................ Respondent
Date of filing of appeal : 07.07.2017
Date on which judgment reserved : 25.04.2018
Date on which judgment pronounced : 25.04.2018
JUDGMENT
1. The appellants preferred the present appeal, being aggrieved by the judgment dated 11.05.2017 and order on sentence dated 30.05.2017 passed by Ld. Metropolitan Magistrate, Rohini Courts, Delhi (the trial court) vide which the appellants were convicted under sec- tions 354/323/341 Indian Penal Code, 1860 (IPC) and sentenced to rigorous imprisonment of one year for the offence u/s 354/34 IPC, simple imprisonment for three months for of- fence u/s 323/34 IPC, and to period already undergone for the offence 341/34 IPC. The ap- pellant no.2 was also convicted for the offence u/s 509 IPC and sentenced to simple impris-
Page no.9/ 9(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC onment for three months for the offence u/s 509 IPC. Both the appellants were also directed to compensate the victim and the complainant in sum of Rs.10,000/- each (total Rs.20,000/- i.e. Rs.10,000/- to the complainant Ms. A and Rs.10,000/- to victim Ms. B) within a month from 30.06.2017, in default simple imprisonment for three months. For the sake of conve- nience, the appellants and the respondent shall be referred herein as per their position be- fore the trial court as the accused no. 1 and 2 and the State respectively.
2. Brief facts leading to filing of the present appeal are that FIR no. 315/14 under sec- tions 354/354B/509/323/341/34 IPC PS Sultanpuri was registered on the ground that on 17.03.2014 at about 02.02.30pm, the complainant was standing in the street in front of H.No.P-3/175, Sultanpuri, Delhi with her siblings. Both the accused along with JCL Saurabh were throwing colours in the street. Accused no.2 stood in front of their house and hurled abuses. When mother of the complainant objected, the accused no.2 abused her as well. Accused no.2 used criminal force to the complainant Ms. A (identity withheld) by pulling her hair, entered in a scuffle and pulled her Chunni. His brothers, i.e., the accused no.1 and JCL with one unknown person entered in a scuffle with her mother and aunt. They pulled the saree of her aunt 'B' (identity withheld) intending to outrage or knowing it to be likely to outrage their modesty.
3. Charge sheet was filed under sections 354/354B/509/323/341/34 IPC before the trial court. The trial court framed charges under sections 354/354B/509/323/341/34 IPC against both the accused. Both the accused pleaded not guilty and claimed trial. After trial, vide the impugned judgment and order on sentence, both the accused were convicted and sentenced as mentioned above.
4. Notice of the appeal was issued to the State. In response thereto, the State appeared and prayed for dismissal of the appeal.
Page no.9/ 9(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC
5. I have heard Ld. Counsel for both the accused and ld. APP for the State and have perused the material available on record including the trial court record.
6. Counsel for both the accused pleaded that according to the prosecution, the incident took place on 17.03.2014 and the subject FIR was lodged on 20.03.2014. However, the prosecution has failed to justify the delay in lodging the FIR. He also pleaded that accord- ing to PW-1 and PW-2, they made the statement on 17.03.2014 itself. On the contrary, PW- 5 deposed that they had not made the statement on 17.03.2014. As such, there existed con- tradiction as to when PW-1 and PW-2 made their statement to the police. He also pleaded that there was enmity between the complainant's side and the accused side due to which PW-1 falsely implicated both the accused in the present case and they had given the sug- gestion to that effect to the prosecution witnesses. However, the trial court erred in holding that no such suggestion was given to the prosecution witnesses. He also pleaded that ac- cording to PW-1, her brother in law (Jija) was present at the time of incident. However, PW-2 in her cross examination deposed that only ladies were present and no male member was present at that time. Further, there existed material contradictions in the testimony of PW-1, PW-2 and PW-4, however, the trial court failed to consider the same. Therefore, the trial court has erred in convicting both the accused.
7. On the contrary, ld. APP pleaded that the trial court passed the impugned judgment and order on sentence on correctly appreciating the evidence available on record. Hence, he prayed that the appeal may be dismissed.
8. Vide the impugned judgment, both the accused were acquitted for the offence u/s 354B IPC.
9. In the present case, both the accused were charged for the offence u/s 354/34 IPC on the ground that they along with JCL in furtherance of their common intention used crim- inal force against PW-1 by pulling her hair with intention to outrage or knowing it to be Page no.9/ 9 (Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC likely that they would thereby outraged her modesty. Vide the impugned judgment, both the accused were held guilty for the said offence and were sentenced accordingly.
10. Case of the prosecution was that on 17.03.2014 at about 2-2:30 pm, when PW-1 along with her brother and sister was standing, the accused no.2 came in front of their house and started abusing. Once mother of PW-1 asked him as to why he was doing so and also to play holi at some other place, the accused no.2 also abused her mother. That time, the accused no.2 pulled hairs of PW1, beaten her and also pulled her chunni. Thereafter, the accused no.1 along with his brother also came at the spot. PW-1 in her statement u/s 164 CrPC Ex.P-2 stated that the accused no.2 pulled her hairs and beaten her.
11. To this effect, PW-1 in her testimony deposed that the accused no.2 came there and abused her. Once her mother asked him as to why he was doing so, the accused no.2 called the accused no.1 and JCL. Thereafter, the accused no.2 caught her suit and dupatta. PW-2 also deposed to that effect. It implies that once the accused no.1 and JCL arrived at the spot on the call of the accused no.2, the accused no.2 had already abused PW1 and had pulled her hairs. In other words, the accused no.1 was not present at the spot when the accused no.2 had abused PW-1 and pulled her hairs. Therefore, it can be held that the accused no.1 had not participated in any manner when the accused no.2 had pulled the hairs of PW-1 as alleged by the prosecution. Hence, the accused no.1 could not be held guilty for the offence u/s 354/34 IPC.
12. Now the question arises as to whether the accused no.2 had pulled hairs of PW-1 and thereby committed the offence u/s 354 IPC.
13. PW-1 and PW-2 in their testimony nowhere stated that the accused no.2 pulled the hairs of PW-1. To this effect, PW-4 deposed that the accused no.2 caught hold of the hairs of her sister in law (Jethani/PW-2). However, it is not the case of PW-2 herself. Even the Page no.9/ 9 (Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC testimony of PW-1 is silent to that effect. Further, the testimony of PW-4 is completely silent to the effect that the accused no.2 caught hold the hairs of PW-1.
14. In view of the foregoing discussions, it can be held that the impugned judgment holding the accused no.1 and 2 guilty for the offence u/s 354/34 IPC and order on sentence for this offence is not sustainable in law and is liable to the set aside.
15. Both the accused were also charged for wrongfully restraining PW1 and voluntarily causing hurt to her in furtherance of common intention and were convicted for the offence u/s 323/341/34 IPC.
16. MLC of PW-1 Ex.PW-3/B reveals that on medical examination, abrasions on her left eye brow was noticed. MLC was prepared earliest in time. PW-3 proved the said MLC. In his cross examination, both the accused have not disputed the said injury. No suggestion was given to PW-1 that she had not sustained the injury in the incident or the injuries were self inflicted injuries. As evident from testimony of PW-1, PW-2 and PW-4, both the ac- cused had beaten PW-1. Therefore, both the accused were rightly held guilty for the offence u/s 323/341/34 IPC and sentenced accordingly.
17. Both the accused were also charged u/s 509/34 IPC for uttering abusive words which insulted the modesty of PW-1, PW-2 and PW-4. However, it was the accused no.2 only who was convicted for the said offence, while the appellant no.1 was acquitted for the same. PW-1 and PW-2 specifically deposed that the accused no.2 abused PW-1 stating "be- hen ki lohri". In cross examination of PW-1 and PW-2, no specific suggestion to the con- trary was given to them. As such, the testimony of PW-1 and PW-2 to this effect remained unrebutted. Hence, the accused no.2 was rightly held guilty u/s 509 IPC and sentenced ac- cordingly.
Page no.9/ 9(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC
18. Counsel for the accused pleaded that there was unexplained delay in lodging the FIR.
19. The subject incident was dated 17.03.2014. FIR was lodged on 20.03.2014 on the basis of statement of PW-1 Ex.PW-1/A wherein she specifically named both the appellant and JCL and also specified their role.
20. The trial court held that IO admitted that on day of incident it was holi festival and there was rush in the hospital, hence, he could not collect the MLCs and once, he got MLCs, he lodged the FIR. In the meantime, he kept the DD pending. In his cross examina- tion also, he deposed to that effect. The said testimony of PW-5 remained unrebutted. Fur- ther, no suggestion was given to PW-1 that her statement Ex.PW-1/A was a false and fabri- cated document. No suggestion was given to her that she had deliberately delayed in lodg- ing the FIR. Both the accused have also failed to explain as to what prejudice had been caused to them by lodging the FIR on 20.03.2014. In view of the foregoing discussions, I am of the opinion that the prosecution had justified the delay in lodging the FIR and that delay had not benefited PW-1 in any manner whatsoever nor had caused any prejudice to the accused.
21. Counsel for the accused also pleaded that there existed contradictions in the state- ment of PW-1, PW-2 and PW-4 as to when their statements were recorded. According to PW-1 and PW-4, their statement was recorded on 17.03.2014 while according to PW-2, her statement was recorded on 18.03.2014. On the contrary, PW-5 deposed that he recorded statement of PW-1 on 20.03.2014 and mother of PW-1 did not come to police station on 18.03.2014. No doubt, there exists contradiction in the testimony of PW-1, PW-2 and PW-4 as to when their statements were recorded. However, the question arises whether it is the material contradiction and is fatal to the case of prosecution. As held above, the statement of PW-1 Ex.PW-1/A was her voluntary statement and its authenticity remained unchal- lenged. Therefore, the above mentioned contradictions are not the material contradictions to damage the prosecution case.
Page no.9/ 9(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC
22. Counsel for the accused pleaded that according to PW-1, her brother in law (Jija) was present at the time of incident. However, PW-2 deposed that only ladies were present and no male member was present at the time of incident. As such, there exists contradic- tions in their statement.
23. In the present case, PW-1 was the complainant, the eye witness and the victim. PW- 2 and PW-4 were also present at the spot and corroborated the testimony of PW-1. There- fore, whether brother in law of PW-1 was present at the scene of crime at the time of inci- dent becomes irrelevant. Hence, the said contradiction is not the material contradiction. Further, the accused no.1 in reply to question no.5 of his statement u/s 313 CrPC stated that brother in law of PW-1 was present at the time of incident.
24. Counsel for the accused also pleaded that PW-1 had falsely implicated both the ac- cused due to previous enmity. The trial court erred in holding that the accused had not given such suggestion to PW-1 and PW-2 as in cross examination of PW-4, one suggestion was given which she denied that there was enmity between them and the accused as she had filed the false and fabricated case against them. The accused no.2 in reply to the ques- tion no.13 of his statement u/s 313 CrPC stated that he had a quarrel with maternal uncle of PW-1 one and a half month prior to the date of incident due to which the enmity developed between both the sides. Accused no.1 also stated to that effect. However, no such sugges- tion was given to PW-1, PW-2 or PW-4. As such, the trial court was right in holding so. Further, both the accused have not led any evidence to prove the same.
25. Accused no.2 in his statement u/s 313 CrPC took a stand that on the date of inci- dent, family of PW-1 was having a quarrel with the neighbours and he was only standing in front of his shop. Again stated, he was not only standing but was trying to stop the said quarrel. However, he was falsely implicated in the present case. The accused no.2 has failed to explain once he had enmity with PW-1 and her family then why he would have in-
Page no.9/ 9(Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC tervened to stop the quarrel. More so, no such suggestion was given to PW-1, PW-2 and PW-4.
26. To this effect, the accused no.1 in his statement u/s 313 CrPC stated that the accused no.2 tried to stop the quarrel, that time he came at the spot and took accused no-2 to his house. Firstly, no such suggestion was given to PW-1, PW-2 and PW-4. Secondly, by the said suggestion, they admitted their presence at the spot. Again, the question arises as to why the accused no.2 to save the complainant and his family with whom they had enmity.
27. In their defence, both the accused examined DW-1 to prove that brother in law of PW-1 came at the spot in drunken condition and started quarreling with him and his father. In the mean time, both the accused came at the spot and pacified the matter. Thereafter, par- ents of PW-1 went to the house of the accused and started quarreling with them. No such suggestion was given to PW-1, PW-2 or PW-4.
28. Both the accused also examined DW-2 who deposed that on hearing the noise of quarrel between brother in law of PW-1 and DW-1, he reached at the spot and tried to pacify the quarrel. Accused no.2 also reached at the spot and tried to pacify the quarrel. That time, family of PW-1 started quarreling with the accused no.2. The said statement is contrary to the statement of DW-1 wherein he stated that parents of PW-1 had gone to the house of accused persons and quarreled with them. As such, an adverse inference can be drawn against them. Further, no such suggestion was given to PW-1, PW-2 and PW-4.
29. In view of the foregoing discussions, it can be held that both the accused have failed to prove that PW-1 falsely implicated them due to previous enmity.
30. Therefore, judgment dated 11.05.2017 holding both the accused guilty for the offence u/s 354/34 IPC and sentencing them accordingly is set aside. Hence, both the accused are acquitted for the offence u/s 354/34 IPC. I do not find any infirmity in the judgment dated Page no.9/ 9 (Judgment) Sachin Gupta & Ors. Vs State.
CA no.82/17U/s 374 CrPC 11.05.2017 holding both the accused guilty u/s 323/341/34 IPC; and the accused no.2 guilty u/s 509 IPC and their sentencing accordingly. Hence, the appeal to this effect is dismissed. As such, the appeal is partly allowed.
TCR be sent back with copy of the judgment.
Appeal file be consigned to record room.
Announced in the open court on this 25th day of April, 2018.
(Pankaj Gupta) ASJ-FTC, North-West, Rohini Courts: Delhi.
Page no.9/ 9