Delhi District Court
Rajender Singh Thakur vs The State (Govt. Of Nct Of Delhi) on 4 March, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 204678 of 2016
CNR NO. DLSE01-006566-2016
IN THE MATTER OF:
Rajender Singh Thakur
S/o Sh. Joginder Singh
R/o H.No. RZT-27/229,
Dayal Park, Sagarpur, New Delhi.
.......Appellant
Versus
1. The State (Govt. of NCT of Delhi)
2. Ms. P (Prosecutrix)
........Respondents
Instituted on : 15.09.2016
Reserved on : 22.02.2022
Pronounced on : 04.03.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 28.07.2016 and order on sentence dated CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 1 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:48:10 +0530 17.08.2016, passed by the learned Metropolitan Magistrate, South- East District, Saket Courts, New Delhi in First Information Report (FIR) No.455/14, Police Station Lajpat Nagar, under Section 354 IPC, titled as 'State vs. Rajender Singh Thakur', whereby he was convicted for offence under section 354 IPC. Further, vide order on sentence dated 17.08.2016 passed by Ld. Trial Court, the appellant was sentenced to undergo rigorous imprisonment for a period of one year and was directed to pay a compensation of Rs. 15,000/- to the victim.
2. The genesis of prosecution case is complaint Ex. PW-1/A dated 09.07.2014 made by complainant, wherein she averred that she was appointed as Accountant in Bangkok Mart through Monster.com. On 07.07.2014, owner of the shop wanted the shop to be closed early as his uncle had expired, therefore the shift which used to end by 7.30 pm usually, was to get over between 4-5pm. Accordingly, most of the staff members left the shop at around 4.00 pm but she remained in the shop due to heavy work. It is alleged that when she was leaving the shop after finishing her work at about 5.15 pm, appellant/accused held her from behind and asked her to stay by saying " feelings share karna chahta hoon". On these allegations, FIR in the instant case was registered. The appellant was arrested during course of investigation and further investigation was carried out.
3. After conclusion of investigation, chargesheet was filed against the appellant and after completion of necessary formalities, a CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 2 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:48:18 +0530 formal charge for commission of offence under Section 354 IPC was framed against him by Ld. Trial Court, to which he pleaded not guilty and claimed trial.
4. Prosecution to prove its case examined 04 witnesses before Ld. Trial Court. PW1 is the prosecutrix/complainant, PW2 HC Vinod Kumar is the duty officer who proved DD No. 23A and FIR Ex. PW2/B, PW3 Ct. Sachin is the witness to the investigation and PW4 ASI Satya Prakash is the investigating officer.
5. PW1 Ms. P is the prosecutrix/complainant who deposed that she acquired a job of Accountant at Bangkok Mart, Lajpat Nagar through Monster.com; that on 07.07.2014, owner of the shop wanted the shop to be closed early as his uncle had expired, therefore the shift which used to end by 7.30 pm usually, was to get over between 4- 5pm; that the women staff occupying the other room started to leave at 4.00 pm; that she got late due to heavy paper work; that at 4.30 pm when she was about to leave, the appellant/accused came from the back and held her; that she freed herself after a lot of struggle; that she managed to come out after arranging the keys; that after coming out, she took some time to compose herself, that she called up Monster.com and time was sought by one Shukla Madam of Monster.com to sort out the matter; that till 09.07.2014 accused was found to be working at Bangkok Mart as confirmed by a random call by her friend, that thereafter she approached the police and filed her CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 3 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:48:28 +0530 complaint Ex. PW-1/A; that appellant/accused was arrested vide arrest memo Ex. PW-1/B; that she was medically examined at AIIMS and her statement under section 164 CrPC was recorded. The witness was duly cross-examined by Ld. defence counsel.
5A. During her cross examination, she deposed that complaint Ex. PW-1/A is not in her handwriting; that she did not raise an alarm when she rushed out from the shop.
6. PW2 HC Sunder Singh is the concerned duty officer who proved DD No. 23A Ex. PW-2/A and registration of FIR Ex. PW-2/B.
7. PW3 Ct. Sachin deposed that on 09.07.2014, on receipt of DD No. 23A, he alongwith IO reached at the spot; that IO called the complainant at the spot and recorded her statement; that complainant informed that on 07.07.2014, appellant/accused had misbehaved with her; that thereafter he got the FIR registered, returned to the spot alongwith W/Ct. Suman and handed over the copy of FIR and tehrir to the IO; that he took the accused for medical examination and returned to police station; that appellant/accused was arrested vide memo Ex. PW-1/B; that IO recorded his statement. He was duly cross-examined by Ld. defence counsel.
8. PW4 is the investigating officer, who deposed on the lines of PW3. He further deposed that appellant/accused was sent into the CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 4 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:48:36 +0530 lock up and statement of complainant under section 164 CrPC was recorded on next date. He was duly cross-examined by Ld. defence counsel.
9. Trial Court record reveals that in his statement recorded under section 294 CrPC, appellant/accused did not dispute the recording of statement of complainant under section 164 CrPC by concerned Metropolitan Magistrate.
10. After conclusion of prosecution evidence, statement of appellant was recorded U/s 313 CrPC, wherein all the incriminating evidence was put to him. Appellant denied the same as incorrect and claimed to be falsely implicated and chose to lead DE. Appellant led evidence and examined himself as DW1 pursuant to application under section 315 CrPC being allowed by Ld. Trial Court.
11. Appellant/accused deposed that on 07.07.2014, he gave file to his colleague i.e. the prosecutrix/ complainant who refused saying that she had to leave early as per instructions of the Boss; that on next day, two policemen came to his house at around 11 am and took him to police station, where he got to know that a complaint has been registered against him; that the present false complaint was filed by the complainant at behest of another boy who did not want him to work in the office, that all the workers had left the office together.
CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 5 of 14
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.03.04
15:48:46 +0530
11A. During his cross examination by Ld. Addl. PP, he deposed
that other employees namely Areen, Arnav and Angam were present when he was giving work to the complainant.
12. Ld. Trial Court vide impugned judgment convicted the appellant for offence u/s 354 IPC, while relying upon the testimony of PW1, having been corroborated by other prosecution witnesses.
13. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on various grounds which can be summarized as under:-
(i) That the impugned judgment and order on sentenced passed by Ld. Trial Court is bad in the eyes of law and against the equity and principle of natural justice;
(ii) That Ld. Trial Court failed to appreciate the fact that there are material contradictions in the statement of PW1, PW3 and PW4;
(iii) That Ld. Trial Court failed to consider the defence of the appellant/accused;;
(iv) That Ld. Trial Court failed to appreciate that there was two day's delay in registration of FIR which is creation of afterthought and manipulations.
(v) That the impugned judgment and order on sentence are based on conjectures and surmises and same are liable to be set aside.
CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 6 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:48:53 +0530
14. Ld. Counsel for appellant has argued on the lines of grounds taken in instant appeal. It was argued that there are material contradictions in the statement of complainant. It was further argued that there is delay of two days in lodging the FIR which is creation of afterthought and manipulations. It was argued that complainant did not raise alarm despite the fact that place of incident was densely populated. It was further argued that appellant was not arrested in the presence of complainant and her complaint given to police is not on record. It was further argued that no public person/ staff/ owner of the office was asked to join the investigation and no CCTV footage was collected by the IO.
14A. It was urged that appellant is BSC, MBA having clean antecedents and has already suffered agony of trial for last eight years. It was further argued that appellant has responsibility of his old aged parents, wife and two minor children. Ld. Counsel has relied upon two judgments of Hon'ble Delhi High Court in State vs. Jitender Kumar & Ors., 242 (2017) DLT 172 (DB) and State vs. Rajkumar, 2014 (3) JCC 1913 in support of his contentions.
15. Per contra, Learned Addl. Public Prosecutor for State/respondent has opposed the appeal, stating that prosecution has proved its case against the appellant beyond all reasonable doubts and learned Trial Court has rightly convicted and sentenced him.
CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 7 of 14
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.03.04
15:49:03 +0530
16. I have heard rival contentions and perused the record.
17. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. 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.
18. In the instant case, PW1/complainant is the star witness of the prosecution and whole case depends upon her testimony. Perusal of her testimony reveals that she has gone whole hog with the prosecution version. In her testimony, she has categorically deposed that on the date of incident, the appellant had held her from behind; that she rescued herself after a lot of struggle; that she managed to come out after managing the keys; that she made a complaint to Monster.com. The said version of prosecutrix is duly corroborated by her statement recorded under section 164 CrPC. It is evident from record that the witness painstakingly narrated the entire incident in a consistent manner. She had correctly identified the appellant in the witness box.
19. PW1 faced grueling cross-examination but defence could not elucidate anything to discredit her. Her testimony is absolutely trustworthy, unblemished and of sterling quality. She has withstood CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 8 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:49:12 +0530 rigors of cross-examination without being shaken and therefore her testimony was rightly relied upon by Ld. Trial Court while convicting the appellant.
20. During course of arguments, it was vehemently argued on behalf of appellant that there is a delay of two days in reporting the present matter and thereby making the case of prosecution doubtful. Admittedly, the complaint Ex. PW-1/A in the instant case was made on 09.07.2014, whereas the incident is of 07.07.2014, however in my considered view, the delay in reporting the matter was duly explained by prosecutrix, who deposed in no unclear terms that she had firstly reported the matter to Monster.com (i.e. the agency through whom the prosecutrix arranged the job) and one Ms. Shukla of said agency, had sought one day time to sort out the matter; that on finding out (on 09.07.2014) that the appellant/accused is still working with the Bangkok Mart, she reported the matter to police. Further, it is no gainsaying that delay in lodging FIR in sexual assault cases cannot be equated with the case involving other offences as several factors weigh in the mind of prosecutrix before coming to police station that too in a tradition bound society like ours. The victim in such a cases remains in a traumatic state of mind as is the case herein and seen in the light of aforesaid circumstance, the delay on the part of prosecutrix in reporting the instant matter, is not fatal to the prosecution case. Reliance is placed upon judgments of Hon'ble Apex Court in Satpal Singh vs. Haryana (2010) 8 SCC 714 and State of H.P vs. Prem CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 9 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:49:21 +0530 Singh (2009) 1 SCC 420.
21. Ld. Counsel for appellant has failed to point out any material contradiction in the testimony of PW1 so as to render the same unreliable. No contradiction much less material contradiction exists in her testimony to render her version unbelievable. In the present case, the testimony of eyewitness is cogent and convincing against the accused regarding the alleged crime.
22. It is a settled law that the conviction can be based upon the testimony of a sole eye witness, if appears to be trustworthy, blemish free and of sterling quality. In the instant case, the testimony of prosecutrix is trustworthy, blemish free and of sterling quality. Mere non joining of independent witness is not fatal in the instant case as this court cannot be oblivious of the fact that there is always a tendency on the part of public at large to desist from joining the police investigation. Even otherwise, it is a settled law that witnesses are to be weighed and not counted and the testimony of sole eye witness is sufficient to return a finding of guilt if it is found to be truthful, which is the case herein. Reliance is placed upon judgment of Hon'ble Apex Court in Amar Singh vs. State (NCT of Delhi), Crl. Appeal No. 335/2015 & Inderjeet Singh vs. State (NCT of Delhi), Crl. Appeal No. 336/2015, wherein it has been observed as under:-
"Thus the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 10 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:49:52 +0530 act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State Government of NCT of Delhi)."
23. Further, none of the contradictions as pointed out by Ld. defence counsel during course of arguments, is of such nature so as to go into the root of the matter. The said minor contradictions does not corrode the credibility of the victim and the other witnesses, therefore the same cannot be dubbed as contradictions so as to brush aside the case of prosecution unworthy of credence. Reliance is placed upon judgment of Hon'ble Apex Court in State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), wherein it was observed as under:-
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
24. Further, mere non raising of noise by the victim at the place of incident, does not affect the case of prosecution at all as it is a settled law that different victims of crime may react differently when CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 11 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:49:58 +0530 faced with similar situation and therefore the arguments of defence on this count is liable to be rejected being devoid of any merit. Similarly, the arguments that no CCTV footage was collected by IO also does not hold much ground as the mode of investigation is the prerogative of the investigating agency. If the appellant was of the view that the CCTV footage could have or would have proved his innocence, nothing deterred him seeking preservation of same and bringing the same on record during trial.
25. The due identification of the appellant by eyewitness, the narration of the detailed manner in which the crime was committed and consistent version of the witness (PW1) leaves no doubt in my mind about the guilt of accused in the alleged crime.
26. Therefore, in the facts and circumstances of the present case, I am of the view that prosecution has proved its case beyond all reasonable doubts and therefore there is no infirmity in the impugned judgment.
27. During course of arguments, Ld. defence counsel had argued that a lenient view may be taken against the appellant and he may be released on probation. However, in the facts and circumstances of the present case, considering the nature of offence, I am not inclined to extend benefit of probation to appellant as the present case involves sexual assault. In my view, such assault, apart CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 12 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:50:04 +0530 from being a dehumanizing act, is also an unlawful intrusion of the right to privacy and sanctity of a female. It degrades and humiliates the victim and leaves behind a traumatic experience for her. It is also evident from the impugned order on sentence that Ld. Trial Court has already taken a lenient view by awarding the sentence of one year which is the minimum sentence provided u/s 354 IPC. Therefore, this court would be failing in its duty, if any further leniency is shown to the appellant. Even otherwise, since the offence u/s 354 IPC is punishable with minimum imprisonment of one year, therefore benefit of Probation cannot be extended to him in view of the settled law that no Probation can be granted for the offences which provide for minimum imprisonment. Reliance is placed upon judgment of Hon'ble Apex Court Shyam Lal Verma vs. Central Bureau of Investigation, Crl. Appeal No. 171 of 2013.
28. Thankfully for the appellant, the prosecution did not file any appeal seeking enhancement of sentence awarded by Ld. Trial Court. I may note at this juncture that Ld. Trial Court did not impose the mandatory fine in terms of provisions of section 354 IPC, however since State is not aggrieved on this count, therefore same does not call for any interference by this court.
29. To summarize, there is no infirmity in the impugned judgment and the order on sentence emanating therefrom. Resultantly, the instant appeal stands dismissed. Appellant be CA No. 204678/16 Rajender Singh Thakur v. State (Govt. of NCT of Delhi) Page No. 13 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.03.04 15:50:16 +0530 taken into custody and be sent to jail under appropriate warrant for serving his sentence. The compensation amount remains unpaid. Needless to say, Ld. Trial Court shall be at liberty to recover the same as per law. Copy of the order be given free of cost to the appellant. Appellant has further been apprised that he can challenge the present order before Hon'ble High Court and may approach the office of Delhi High Court Legal Services Authority for free legal aid, in case he so desires.
30. TCR be sent back along with copy of this judgment to Ld. Trial Court. Copy of the judgment be also sent to the concerned Jail Superintendent for compliance through email. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.03.04
15:50:23 +0530
Announced in the open (Anuj Agrawal)
court on 4th March, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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