Delhi District Court
Brijesh vs The State Of Nct Of Delhi on 27 September, 2023
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE :
NEW DELHI DISTRICT
PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No. 68/2022
Sh. Brijesh
Age 28 years, Occupation Labour
R/o W-121/191 Block, Loha Mandi
Naraina, New Delhi. ...... Appellant
Versus
State, NCT of Delhi ....... Respondent
Date of filing of Appeal : 23.03.2022
Date of hearing of arguments : 14.09.2023
Date of Judgment : 27.09.2023
Appearances:
Appellant in person with Sh. Vaibhav Kumar, Ld. Counsel.
Sh. Ravindra Kr. Khandelwal, Ld. Addl. PP for State/respondent.
JUDGMENT:
1. Vide this appeal the order impugned is judgment dated 17.02.2020 of Ld. Trial Court vide which appellant was convicted for the offence punishable under Section 354/509 of IPC and vide order on sentence dated 25.02.2022 appellant was sentenced to one year simple imprisonment and fine of Rs.5,000/- for offence under Section 354 IPC and further simple imprisonment for one month for the offence under Section 509 IPC. In default of payment of fine, the appellant was sentenced to simple imprisonment of 15 days.
FACTUAL BACKGROUND:
2. The case of the prosecution that on 22.10.2014 on receipt of DD No. 13B regarding molestation, SI Birmati (PW-6) along Criminal Appeal No. 68/2022 Brijest v State Page 1 / 9 with Ct. Vijay (PW-3) went to the spot i.e. House No. 320, Y- Block, Naraina, Loha Mandi, New Delhi. The complainant Rinku (PW-2) along with her mother Tara Devi (PW-5) met them. IO (PW-6) recorded the statement of complainant regarding out- raging and insult to her modesty by appellant. On this complaint, IO got the FIR registered under Section 354/509 IPC. Statement of complainant also got registered under Section 164 Cr.PC. After investigation, police filed the charge-sheet against the appellant under Section 354/509 IPC.
3. In support of its case, prosecution has examined six witnesses. Statement of appellant was recorded under Section 313 Cr.PC. Wherein he has simply stated that this is a false case filed against him by the police and he has not led any evidence in his defence.
GROUNDS OF CHALLENGE:
4. The appellant has assailed the impugned judgment on various grounds. Primarily, on the ground that incident had taken place on 22.10.2014 but FIR was lodged on 01.06.2015 after the gap of seven months which casts serious doubts on the authenticity and genuineness of the allegations. It is urged that prosecution has failed to examine a single public witness. It is stated that the age of the complainant is about 50 years but appellant is just about 20 years at the time of incident and he has been falsely targeted. It is stated that incident took place in thickly populated area during day time but prosecution has failed to examine any independent witness in support of its case.
5. Heard the arguments by Ld. Counsel Sh. Vaibhav Kumar for appellant and Ld. APP for the state.Criminal Appeal No. 68/2022 Brijest v State Page 2 / 9
6. Complainant PW-2 is the main prosecution witness. She deposed that on the day of incident when she was coming back after calling to her husband from House No. H-320, Naraina Loha Mandi, New Delhi, appellant came from behind on a bicycle and said "side hoja nahie to thok dunga". When she gave him side, he stopped his bicycle and thereafter, he pulled her and kissed her and when she objected to the same, the appellant had said "jayada bolegi to tujhe yahi chod dunga".
Thereafter, she went to her house and told the whole story to her mother and when her mother asked the appellant about the said incident the appellant had abused her mother. Thereafter, they called the police at 100 number and the police recorded their statements which is Ex. PW-2/A. PW-2 had identified her statement recorded u/s 164 Cr.PC which is Ex. PW-2/C.
7. During cross examination, complainant has stated that she is around 22 years old and born and brought up at the said address which is situated at the spot. She further stated that the distance between her house and house of the accused is five minutes by walk. She was returning back after calling her husband when the accused misbehaved with her. Her mother had called at 100 number. Her mother used to run a kirana shop at the time of incident. She denied the suggestion that the accused used to supply mathi, chips etc. to the adjoining shops. She further denied the fact that accused is born and brought up in the same neighbourhood. She admitted the fact that she also abused the appellant "Kutta Kamina".
8. PW-6/C is the statement of the prosecutrix recorded u/s 164 Cr.PC. Here on oath appellant has told the Ld. MM that she Criminal Appeal No. 68/2022 Brijest v State Page 3 / 9 was going in the street and the appellant was coming on his bicycle and has stated "side hoja nahie to thok dunga". She has abused him. Appellant had pulled her and kissed her. She told about this incident to her mother. When her mother asked him about the said incident he started abusing her mother stating that "agar sali tu aise bolegi toh tujhe bhi aise kar dunga".
9. PW-5 Tara Devi is the mother of the complainant. She has deposed that she is running a kirana shop. She does not remember the exact date due to lapse of time but it happened in the year 2014 in the month of October. On that date, her daughter told her that when she was going in the gali to purchase some articles, appellant had told her "side hoja nahie to thok dunga". Thereafter, appellant had hold hand of her daughter, pulled her and kissed her without her will. Thereafter, her daughter told her about the said incident. When she asked the appellant about the said incident, appellant had told her "agar sale tu bhi jyda bolegi to tujhe bhi ragad dunga, tere saath bhi galat kaam kar dunga". Thereafter, she along with her daughter returned to her home and then went to police station. Police recorded their statements. On 22.10.2014 accused was arrested. During the cross, she has deposed that she had gone to meet the mother of appellant but his mother started arguing and fighting with her.
10. PW-6 Birmati is the IO and she has deposed that on 22.10.2014, she was posted as SI in PS-Naraina. On that day she received a call regarding misbehaving and the same was recorded vide DD No. 13B. She along with Ct. Vijay went to the spot i.e. House No. 320 Y Block Naraina Loha Mandi. There she recorded the statement of the complainant. The appellant was Criminal Appeal No. 68/2022 Brijest v State Page 4 / 9 apprehended by the complainant and her mother. Mother of the appellant was also present at the spot. She interrogated appellant in the presence of his mother and also demanded his age proof but she failed to produce any proof stating that appellant is illiterate and she is not having any educational document with her. On 27.10.2014, appellant being JCL, along with his mother was produced before JJB Delhi Gate-II. JJB ordered to get his ossification test done. After ossification test, the age of the accused was opined as between 22 to 25 years. Thereafter, she prepared rukka and got the FIR registered. She arrested the appellant and got recorded the statement of complainant u/s 164 Cr.PC.
DECISION:
11. One of the main contention raised on behalf of the appellant is that there is huge amount of delay and more than seven months between the date of incident and the date of FIR and same is not explained by the prosecution which creates serious doubts on the authenticity and genuineness of the allegations made by the complainant.
12. Ld. APP for the state stated that complaint of the victim i.e.Ex. PW-2/A was recorded by the police on the same date, since there was doubt regarding the age of the appellant, due to this reason, he was produced before JJB Delhi Gate-II and ossification test was got done. It is stated that in the ossification his age was opined as between 22 to 25 years and thereafter, FIR u/s 354/509 IPC was registered.
13. Ex. PW-2/A is the complaint made by the victim and it bears the date 22.10.2014. The complaint is of the same date as Criminal Appeal No. 68/2022 Brijest v State Page 5 / 9 date of alleged incident. Perusal of charge-sheet reveals that appellant was produced before JJB Delhi Gate-II on 27.10.2014.
JJB Delhi Gate-II had directed to get his examination done to ascertain his age. On 05.11.2014, medical examination of appellant was got done and report was procured. As per the report, the age of appellant was found to be between 22 and 25 years. Thereafter, the offence was found to be under Section 354/509 IPC and FIR was got registered. As per the charge-sheet till the report of bone examination of the appellant was received, FIR was not registered by the police. Only after bone examination confirmed the appellant to be a major, police arrested the appellant thereafter. Even if there was apprehension that the appellant is minor, subject to confirmation of the age, the police should have recorded the FIR. But instead of registering the FIR, the police devised its own procedure awaited for result of bone age examination and after it got confirmed that appellant is major, the police decided to lodge the FIR and conduct the investigation. It is thereby clear from the record that there is no delay on the part of the complainant. PW-2 had made the complaint to the police and delay in lodging the FIR took place on the part of the police. Thereby for delay in lodging the FIR, the genuineness and creditability of the statement of complainant PW-2 cannot be doubted. The delay in lodging the FIR got properly explained and does not cause any dent to the prosecution case in any manner.
14. The main contention raised by the Ld. Counsel for Appellant is that there are serious contradiction in the statement of complainant PW-2 recorded by the police and statement under Criminal Appeal No. 68/2022 Brijest v State Page 6 / 9 Section 164 Cr.PC. It is also urged that even statement of the mother of the complainant i.e. PW-5 Tara Devi is also in contradiction to the statement of complainant, which creates shadow of doubt on the creditability of this witness. Ld. Counsel for appellant has further submitted that false complaint was made against the appellant due to previous enmity to take revenge from him. What was the previous enmity between the appellant and the complainant PW-2 or her family, which prompted the complainant to make this complaint is nowhere explained by the appellant. Even during the cross-examination of complainant PW-2 and her mother PW-5 no such suggestion has been placed. However, as urged by Ld. Counsel for appellant there are contradiction in the statement of complainant PW-2 which creates shadow of doubt regarding her creditability. In her statement before the court complainant PW-2 has stated that when she had objected to the conduct of the appellant, he had stated "jayada bolegi to tujhe yahi chod dunga". These words are missing from her complaint Ex. PW-2/A. In this complaint, it is only mentioned that appellant had uttered bad words to her.
15. Now coming to the statement of the complainant recorded u/s 164 Cr.PC, here she has nowhere stated if the accused had uttered any bad words to her except the initial words i.e. "side hoja nahie to thok dunga". Coming to the statement of Tara Devi PW-5, she has deposed that when she has confronted the appellant, he had told her "agar sale tu bhi jyda bolegi to tujhe bhi ragad dunga, tere saath bhi galat kaam kar dunga". But statement of complainant PW-2 is silent if these words were uttered by the appellant to her mother Tara Devi.
Criminal Appeal No. 68/2022 Brijest v State Page 7 / 916. As per IO PW-6 when she reached at the spot she had found the appellant being apprehended by PW-2 and her mother PW-6 but statement of PW-2 and PW-6 are silent that after the alleged incident they had apprehended the appellant.
17. Law is settled that no case is free from the minor discrepancies in the deposition of the witnesses. The discrepancies which are minor and does not go to the root of the matter are required to be ignored but coming to the facts of the present case both the parties are residing in the same area from the last so many years. But no specific instance has been lodged by the appellant of previous enmity. The possibility of any previous amenity or soreness in the relationship between the two families cannot be ruled out. The various contradiction pointed out in the above paras cause serious doubt on the creditability of complainant PW-2. The law is also settled that testimony of complainant is enough to hold the accused guilty but to solely rely upon the testimony of the complainant same should be trustworthy and inspiring confidence. Here in the present case, as already pointed out, there are serious contradiction in the statement of the complainant PW-2 which go to the root of the matter and shake her creditability.
18. In such circumstances an independent corroboration to the testimony of the complainant PW-2 by way to examining public witnesses was required but the police has failed to record the testimony of any public witnesses. Admittedly, the spot was thickly populated area and incident had happened in day time. Why no efforts was made by the police to join the public witness has nowhere been explained by the IO PW-6.
Criminal Appeal No. 68/2022 Brijest v State Page 8 / 919. In view of the aforesaid reasons, the impugned judgment dated 17.02.2020 and sentenced order dated 25.02.2022 is set aside by accepting the appeal. Appellant/accused is acquitted. Surety is discharged. Documents if any, be released under its acknowledgment. Appellant is directed to furnish the bail bond u/s 437A Cr.PC in the sum of Rs. 15,000/- with one surety of the like amount on or before 07.10.2023.
Copy of this order along with the record of Ld. Trial Court be sent back with direction to the Ld. Trial Court to seek compliance of the same.
20. File be consigned to Record Room.
Digitally signed by SANJAY SANJAY GARG
-I GARG - Date:
I 2023.09.27
16:24:11
+0530
Announced in the open Court (SANJAY GARG-I)
th
on 27 September, 2023 Principal Distt. & Sessions Judge
New Delhi District
Patiala House Courts, New Delhi (m)
Criminal Appeal No. 68/2022 Brijest v State Page 9 / 9