Delhi District Court
State vs Devendra Prasad on 18 September, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 85/2020 (RBT 97/22)
IN THE MATTER OF:
State (Govt. of NCT of Delhi)
Through Public Prosecutor, Delhi.
..............Appellant
Versus
Devendra Prasad
S/o Sh. Seeta Rama Sharma,
R/o H.No. 84, Khasra No.10/12,
Naveen Place, Najafgarh, New Delhi.
............Respondent
Instituted on : 28.07.2020
Reserved on :16.09.2023
Pronounced on : 18.09.2023
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 378 Cr.P.C preferred on behalf of State against the impugned judgment dated 23.01.2020 passed by Ld. MM-04, Mahila Court, Saket in Crl. Case No. 2035701/2016 pertaining to FIR No. 684/2014, PS Ambedkar Nagar titled CA. No. 85/2020 State Vs. Devender Prasad Page No. 1 / 16 Digitally signed by SUNIL SUNIL GUPTA Date:
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as "State Vs. Devendra Prasad" whereby the respondent herein was acquitted for the offences U/s 354/354A(1)(i)/509 IPC.
2. Briefly stated the facts as per record are as under:-
An FIR for the offences U/s 354A/509 IPC was registered at PS Ambedkar Nagar on 03.10.2014 on the complaint of Ms. 'R'. It was alleged by her that, she was working as a volunteer at Ram Leela ground, Virat Cinema, Dakshin Puri since 25.09.2014. On 02.10.2014 at about 11:30 pm, she was performing her duty as volunteer and was helping the women sit in ladies section. In the meanwhile, the respondent who was standing there in intoxicated condition, pinched her on right thigh. When she objected to the same, he started abusing her. After registration of FIR, investigation was carried out. Statement of victim U/s 164 Cr.P.C was recorded before Ld. Magistrate on 04.10.2014. After completion of investigation, charge-sheet was filed for the offences U/s 354A/509 IPC against the respondent on 25.03.2015. Cognizance was taken by Ld. Magistrate on 24.07.2015 and respondent herein was summoned as an accused for next date i.e. 09.09.2015. Charge was framed against him for the offences U/s 354/354A(1)(i)/509 IPC. During the course of trial, respondent admitted the factum of recording of statement of victim U/s 164 Cr.P.C. Accordingly, same was exhibited as Ex.PW1/B and formal proof thereof was dispensed with.
3. Prosecution has examined 7 witnesses in support of its case:-
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2023.09.18 15:18:55 +0530 3.1 PW-1 is Ms. 'R'. She is the victim/victim in the present matter. Her testimony shall be discussed in detail later on.
3.2 PW-2 is Ct.Rajbir. He had accompanied the IO during investigation. He has proved arrest memo of the respondent Ex.PW2/A alongwith his personal search memo as Ex.PW2/B. He was duly cross-
examined by Ld. Defence Counsel.
3.3 PW-3 is W/Ct. Poonam. She was on duty at women help-desk at PS Ambedkar Nagar on 02.10.2014 from 08:00PM to 08:00 AM. She has recorded the statement of victim in her own handwriting. She was also duly cross-examined by Ld. Defence Counsel.
3.4 PW-4 is IO/SI Anand Kumar Jha. He deposed about the steps taken by him during investigation. He has proved the site plan Ex.PW4/A. He was duly cross-examined by Ld. Defence Counsel.
3.5 PW-5 is ASI Deshpal Singh. He was posted as Duty Officer at PS Ambedkar Nagar on 03.10.2014 from 12:00AM to 08:00 AM. He deposed about having received the tehrir from PW-4 SI A.K Jha. He also deposed about having made his endorsement thereupon at point 'X' bearing his signature at point C. He proved the FIR registered by him as Ex.PW5/A (OSR). He was duly cross-examined by Ld. Defence Counsel.
3.6 PW-6 is Sh. Hyatt Singh, MRT, Safdarjung Hospital. He has
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proved the MLC No. 206457 dated 03.10.2014 of the respondent as Ex.PW6/A by identifying the signature and handwriting of Dr. Abhishek Singh who had prepared the same. He was duly cross-examined by Ld. Defence Counsel.
3.7 PW-7 is Dr. Yogesh Gautam. He also deposed about the MLC of respondent and stated that as per record, blood alcohol level of respondent was 86.2mg/100ml. He was also duly cross-examined by Defence.
4. After recording of testimonies of prosecution witnesses, statement of respondent U/s 313/281 Cr.P.C. was recorded. The evidence against him on record was put to him wherein he stated that the allegations against him were false. He also stated that he had gone to the Ramleela Ground but no such incident had taken place. The police officials came to his house the next day in the morning and took him to the PS stating that someone had filed a complaint against him and said that he wold have to pay money for settlement which he refused to pay. He did not lead evidence in his defence.
5. After considering the testimonies of witnesses and material on record, Ld. Magistrate was of the view that there was a reasonable doubt regarding identity of the offender and acquitted the respondent while extending the benefit of said doubt to him vide judgment dated 23.01.2020. Said judgment is being challenged in these proceedings.
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6. Arguments heard.
7. It has been argued by Ld. Addl. PP for State that Ld. Trial Court has fell in error in acquitting the respondent as the material on record was not properly appreciated. It has been submitted that the prosecutrix has constantly stated in her initial statement given to the police on the basis of which FIR was registered, in her statement U/s 164 Cr.P.C. as well as in her testimoney before Ld. Trial Court that the respondent has pinched her on right thigh and same was sufficient for his conviction however, Ld. Trial Court ignored her testimony and acquitted the respondent on the basis of some discrepancies in the investigation. It was submitted that even if, it is presumed that there were some faults in the investigation then also benefit thereof cannot be given to the respondent. It was submitted that nothing has come on record regarding any previous enmity between the victim and the respondent so there was no occasion for her to falsely implicate him. Prayer has been made for setting-aside the impugned judgment and for conviction of respondent.
8. Same has been vehemently opposed by Ld. Counsel for respondent. It has been argued that as per the cross-examination of victim dated 28.04.2017, CCTV was installed in the mela and videography was also being done however no such evidence has come on record which could have corroborated her testimony regarding commission of alleged offfence by the respondent. It has been submitted that admittedly, victim was issued ID Card by mela administration but same has also not been placed on record. It has been submitted that as per the victim, there were many police CA. No. 85/2020 State Vs. Devender Prasad Page No. 5 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:19:29 +0530 officials and volunteers on the spot however, it is not clear as to why not even one of them has been made witness in the present matter more so when police officials has allegedly taken the respondent to PS and thereafter, victim was also so taken alongwith one of the volunteers. It was submitted that as per statement of the victim, respondent was brought to the PS at night however as per the charge-sheet as well as testimony of IO, he was arrested next morning from his house. It was further submitted that the victim has named the respondent in her initial statement to the police however, it is not clear as to how she was knowing those details. It has been submitted that there are several contradictions in the case of prosecution and the benefit thereof has been rightly given by Ld. Trial Court to the respondent. He has prayed for dismissal of appeal.
9. I have considered the submissions from both the sides alongwith record.
10. It is to be noted at the outset that there is a delay in filing the appeal as the impugned judgment was delivered by Ld. Trial Court on 23.01.2020 whereas the appeal has been filed on 22.07.2020. Prosecution has filed an application U/s 5 of Limitation Act,1963 for condonation of delay wherein it has been mentioned that the delay was a result of administrative proceedings involved in filing the appeal. The certified copy of impugned judgment placed on record suggests that same was prepared on 10.02.2020. So, in any eventuality, the prosecution would not have got the same before 10.02.2020. Considering this fact alongwith the directions of Hon'ble Apex Court as contained in order dated 10.01.2022 in Suo Motu Writ Petition (Civil) No.3 of 2020, the application stands allowed. Delay in filing the CA. No. 85/2020 State Vs. Devender Prasad Page No. 6 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:19:41 +0530 appeal stands condoned.
11. Record shows that the respondent herein was charged for the offences U/s 354/354A(1)(i) IPC/509 IPC by Ld. Magistrate on 30.03.2016.
11.1 Section 354 IPC provides as under:-
354. Assault or criminal force to woman with intent to outrage her modesty:- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine]."
11.2 Section 354A(1)(i) IPC provides as under:-
"354A. 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 overtunes;"
11.3 Section 509 IPC provides as under:-
"509. Word, gesture or act intended to insult the modesty of a woman. 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, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
12. PW-1 Ms. 'R' is the star witness as she is the victim and only eye- witness examined by prosecution. Her testimony (examination-in-chief) is being reproduced below for ready reference:-
"On 25.09.2014 I was working as volunteer at Ram Leela ground Virat CA. No. 85/2020 State Vs. Devender Prasad Page No. 7 / 16 Digitally signed by SUNIL SUNIL GUPTA Date:
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Cinema. On 02.10.2014 at about 11:30 PM I was performing my duty as volunteer and seating the ladies who were present there and watching Ram Leela. Accused Devender Prasad who was present there came towards me from behind and pinched (nocha) my right thigh. At that time accused was in drunken condition. I asked the accused "ye kya batimmizi hai" who told me in English "Are you Mad". Thereafter, accused started misbehaving with me and abused me by saying that "saali, behan ki lodi". Thereafter, incharge of Ram Leela came there. Some police persons who were on duty at Ram Leela ground also came there after seeing the incident. They asked the accused Devender as to why he did above said act. However, accused told that he did nothing. Thereafter, police took me and accused to the PS. Police recorded by statement Ex.PW1/A which bears my signature at point A. I also pointed out the place of incident to the police. During investigation my statement u/s 164 Cr.PC recorded by the Court. Accused is present in the court today (correctly identified).
At this stage, an envelope of proceeding u/s 164 Cr.PC dated 04.10.2014 sealed with the seal of PS, seal is broken and statement of prosecutrix Rakhi Azad is taken out, same is Exhibit PW-1/B which bears my signature at point A."
13. The grievance of State in this appeal while assailing the impugned judgment is that the testimony of victim was consistent throughout the trial and respondent should have been convicted on its basis while ignoring the loopholes in the investigation which were in any case immaterial. Regarding value to be attached to the testimony of a single eye-witness, it has been held by a Bench of three Judges of Hon'ble Apex Court in Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614 (same was relied upon recently by Hon'ble Apex Court in Javed Shaukat Ali Qureshi Vs. State of Gujarat Crl. Appeal No. 1012/2022) as under:-
"10. .................. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single CA. No. 85/2020 State Vs. Devender Prasad Page No. 8 / 16 Digitally signed by SUNIL SUNIL GUPTA Date:
GUPTA 2023.09.18 15:19:58 +0530 witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the CA. No. 85/2020 State Vs. Devender Prasad Page No. 9 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:20:10 +0530 accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
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14. So the testimony of victim will have to be scrutinized in light of aforementioned principles.
15. Perusal of record shows that there are two versions of what transpired on 02.10.2014 and 03.10.2014. As per the version of victim 'R' (this detailed version came on record in her testimony dated 26.07.2016, 23.02.2017 and 28.04.2017), while she was performing her duty of helping the women sit in the ladies section as a volunteer on 02.10.2014 at around 11:30 PM at Ram Leela Ground, Virat Cinema, the respondent came from behind and pinched her on right thigh. He was allegedly in drunken condition and when she confronted him, he told her in english Are you mad. He also allegedly started misbehaving with her and uttered cuss words against her. On this, incharge of Ram Leela alongwith some police officials on duty at the ground also came there and asked the respondent as to why he did the said act. The respondent allegedly denied having done anything. Thereafter, police took both of them to the PS where her statement was recorded. The victim did not depose anything regarding the arrest and medical examination of respondent as in all probability, she was not having any knowledge regarding that. One material fact to be noted here is that in her statement given to police on the basis of which FIR No. 684/2014 was registered, she had mentioned complete particulars including name, parentage and address of the respondent. In her cross-examination, she stated that she was not knowing the respondent prior to the incident and that the details of respondent were told to her by the police.
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16. The story of prosecution, in the form of charge-sheet alongwith documents annexed therewith and statements of other witnesses, starts with the victim 'R' having reported to PW-3 W/Ct. Poonam at around 11:30 PM on 02.10.2014 while she was on duty at the women help-desk at PS Ambedkar Nagar whereupon she recorded her statement. Thereafter, PW-5 ASI Deshpal Singh who was working as Duty Officer at PS Ambedkar Nagar at that time, informed IO/PW-4 SI Anand Kumar Jha about her. IO met her in the PS whereupon he was informed that she had already given her complaint to PW-3 W/Ct. Poonam. He took said complaint from W/Ct. Poonam, prepared a rukka and handed over the same to PW-5 ASI Deshpal Singh for registration of FIR which was accordingly registered as Ex.PW- 5/A (OSR). Thereafter, IO went to the spot and prepared a site plan at the instance of victim as Ex.PW4/A (which is interestingly not even bearing her signature). IO/SI Anand Kumar Jha alongwith PW-2 Ct. Rajbir thereafter went to house of respondent at 1/59, Dakshinpuri, New Delhi where the respondent met them and was arrested vide arrest memo Ex.PW2/A after interrogation. The arrest memo mentions date of arrest as 03.10.2014 and time of arrest as 11:00 AM. Place of arrest has been mentioned as H.No. 1/59, Dakshinpuri, New Delhi i.e., the house of respondent (arrest memo is not bearing signature of the victim). Before arresting the respondent, he was allegedly medically examined vide MLC Ex.PW-6/A on 03.10.2014 at 01:35 AM. As per the MLC, alcohol in his blood was found as 86.2mg/100ml (same has been wrongly mentioned as BP in the MLC).
17. On careful perusal, both the aforementioned versions seem to be somewhat irreconcilable. In case, the respondent was taken to the police CA. No. 85/2020 State Vs. Devender Prasad Page No. 12 / 16 Digitally signed by SUNIL SUNIL GUPTA Date:
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station from the spot on the intervening night of 02.10.2014 and 03.10.2014 and was medically examined in the early hours of 03.10.2014, it is not clear as to how his arrest was effected on 03.10.2014 at 11:00 am that too at his own house. Whether he was released after his medical examination and if yes, what was the reason thereof? In case, he was not so released then why there is so much gap in his medical examination and time of arrest and why the place of arrest got recorded as H.No. 1/59, Dakshinpuri, New Delhi. It is to be noted that this confusion might not be sufficient to doubt the case of prosecution in its entirety however, there are other material questions which remain unanswered. As mentioned earlier, the story of prosecution as per the charge-sheet and testimonies of witnesses (except the testimony of victim) suggests that the victim has herself suddenly gone to the PS and gave the statement Ex.PW1/A on the basis of which FIR was registered. In case, the victim was taken to PS by police officials on duty at Ram Leela Ground then they could have been easily examined to prove this thing. The victim also did not state any such thing either in her statement Ex.PW-1/A or in her statement U/s 164 Cr.P.C recorded before Ld. Magistrate (Ex.PW- 1/B). It was only in her testimony before the Court that she stated about police having taken her and the respondent to the PS. In these facts, the important link between alleged presence of the victim at the spot and her subsequent presence at the police station seems missing. Similar is the case regarding particulars of the respondent mentioned in Ex.PW1/A. There is nothing in said statement to suggest as to how the victim came to know about the name, parentage etc. of the respondent. Explanation regarding that also came on record for the first time in her cross-examination wherein she stated the she came to know those details as same were told to her by the police. Here again, no police official has been examined to prove this CA. No. 85/2020 State Vs. Devender Prasad Page No. 13 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:20:52 +0530 fact leaving a gap as to how the victim was able to mention those details in her initial statement. It is also not clear as to whether those details were told to her by the police officials at the spot or in the PS. One of the suggestions given by defence to the victim in her cross-examination is that she was not present in the mela as volunteer as she has not produced her I-Card. She was also given a suggestion to the effect that she came to know the name of respondent from somewhere and conspired with police for extorting money and for that reason, he has been falsely implicated. Both these suggestions were denied by the victim. It is not even the case of respondent that they both were known to each other before the alleged incident or that there was any personal enmity between them which could have been a motive for the victim to falsely implicate him.
18. Having said that, it is settled law that in a criminal trial, a person is deemed innocent until proven guilty. It has been held by the Hon'ble Punjab & Haryana High Court in a case of Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55 as under:-
" In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
19. The proceedings against the respondent in present case were initiated on the basis of initial statement of the victim Ex.PW1/A wherein he has been specifically named however, the circumstances in which his name was so mentioned therein are shrouded in mystery. She has not mentioned his name even in her statement U/s 164 Cr.P.C. recorded before CA. No. 85/2020 State Vs. Devender Prasad Page No. 14 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:21:04 +0530 Ld. Magistrate two days after the incident i.e., on 04.10.2014. The victim also did not explain source of her information regarding particulars of the respondent till the time of her cross-examination and said explanation has not got support from any other witness. Apart from her testimony, nothing has come on record to prove that the victim was infact working as a volunteer on the fateful night at Ram Leela Ground as even her I-Card issued by mela administration is not part of the charge-sheet. In these circumstances, this Court is of the view that the testimony of victim to the effect that respondent has pinched her on right thigh on the night of 02.10.2014 and has also abused her on being confronted thereafter becomes doubtful and same in itself is not sufficient to convict the respondent considering the other facts and circumstances mentioned above. Her testimony could have been accepted if there was some corroborative material which the prosecution has failed to provide in any manner. It is possible that whatever the victim has stated before Ld. Trial Court in her examination-in-chief and cross-examination was correct however, such possibility in itself is not sufficient to convict the respondent as same shall be against the cardinal principles of criminal justice system.
20. It is also to be noted that present appeal is against acquittal recorded by Ld. Magistrate after conducting entire trial and such a finding of Ld. Trial Court cannot be disturbed lightly. Reliance is placed in this regard on the judgment of Hon'ble Apex Court in Roopwanti vs The State Of Haryana, Criminal Appeal No. 1904 of 2014 in which it was held as under:-
"7. In cases where a reversal of acquittal is sought, the courts must keep in CA. No. 85/2020 State Vs. Devender Prasad Page No. 15 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.09.18 15:21:14 +0530 mind that the presumption of innocence in favour of the accused, on grounds of it surviving the rigours of a full trial, is strengthened and stands fortified. The prosecution then, while still working under the same burden of proof, is required to discharge a more onerous responsibility to annul and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgments by this court."
21. Considering the above discussion, this Court holds that investigation has been conducted in this matter in a casual manner giving rise to so many doubts and that Ld. Trial Court has rightly given the benefit thereof to the respondent. No ground is made out to interfere with said finding of Ld. Magistrate in appeal.
Appeal stands dismissed in above terms.
Digitally signed by SUNILSUNIL GUPTA GUPTA Date:
2023.09.18 15:21:26 +0530 Announced in the open (Sunil Gupta) Court on 18th September, 2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi CA. No. 85/2020 State Vs. Devender Prasad Page No. 16 / 16