Delhi District Court
State vs Gurvinder Pal Singh on 31 January, 2009
1
IN THE COURT OF DR. ARCHANA SINHA
METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI.
FIR No. 352/02
P.S Tilak Nagar
State V/s Gurvinder Pal Singh
1. S.No. of the case : 439/02
2. Date of Institution : 04.07.2002
3. Date of Commission of offence : 26.05.2002
4. Name & Add. of Complainant : Smt. Neelu @ Harmeet Kaur
W/o Sh. Sanjeev, R/o Wz-44/2F
Krishnapuri, Street No.16, Tilak
Nagar, New Delhi.
5. Name & Address of Accused : Gurvinder Pal Singh @ Titu S/o
Late Sh. Mohan Singh, R/o Wz-
44/1, Krishnapuri, Tilak Nagar,
New Delhi. (aged around 47 yrs)
6. Offence complained of : U/s 342/354 IPC
7. Plea of the Accused : Pleaded not guilty.
8. Date on which Judgment : 30.01.09
has been reserved
9. Date of Delivery of the Order : 31.01.09
10. Final Order : Acquitted
JUDGMENT
1. The brief resume of the prosecution case is that one Smt. Neelu @ Harmeet Kaur W/o Sh. Sanjeev, has complained of mis-
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 2 behaviour on 26.05.02 at about 9 p.m at Wz-44/1, Street No. 16, Krishnapuri, Delhi, within the jurisdiction of P.S Tilak Nagar, New Delhi, alleging that the accused wrongfully confined her and committed the activities that were conducted with the intentions to outrage her modesty by using criminal force, thereby alleging, that he committed the offences punishable U/s 342/354 IPC.
2. As per the prosecution case, on such complaint of the complainant, the matter was investigated upon by the police officials of P.S Tilak Nagar, Delhi and on completion of the investigation of the matter, a charge-sheet was filed against the accused Gurvinder Pal Singh @ Titu for the offences punishable U/s 342/354 IPC, on which the predecessor court had taken cognizance vide order dt. 04.07.02.
3. Further, vide order dt. 04.05.04, the predecessor court of Smt. Sukhvinder Kaur, the then Ld. M.M, Delhi, framed charges against the accused Gurvinder Pal Singh for the offences punishable U/s 342/354 IPC, to which he had pleaded not guilty and had claimed trial. Thus, the trial had commenced.
4. For proving its case, the prosecution has relied on the ocular evidence of 6 prosecution witnesses, mentioned in the list of witnesses, as per the charge-sheet, and during the long trial of around 4 years of evidence between 2004-2008, the prosecution produced all the 6 prosecution witnesses.
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 3 Out of these six prosecution witnesses, PW-1 ASI Rajinder was the formal witness being the duty officer (D.O) who had come to the witness box to authenticate the registration of the case and proved the copy of FIR as Ex.PW-1/A and deposed that on 29.05.2002, while being posted at P.S Tilak Nagar, on receipt of a complaint of the complainant from SI Kehar Singh, he recorded the FIR bearing No. 352/02 U/s 342/354 IPC. Thus, this witness is being treated as a formal witness who had come to the witness box to authenticate the registration of the case.
Similarly, PW-2 Ct. Satish Kumar was also the formal witness being the police official who accompanied the investigating officer during investigation. This witness was formal in nature because he could only prove the facts regarding the arrest and personal search of the accused in his presence, during the course of investigation. As he had nothing to say about the occurrence and of the allegations, being he reached on the spot only after occurrence, thus, he is also treated as formal witness but necessary witness to prove the circumstantial evidence on record.
Whereas, PW-3 Nirmal Kaur and PW-4 Paramjeet Singh @ Mintu (PW-4 also examined as PW-6 inadvertently, but shall be treated as PW-4 henceforth), were the material public witnesses of the prosecution, produced to prove the allegations against the accused person.
And, PW-5 Harmeet Kaur @ Neelu was the complainant/prosecutrix herself, who was the material star witness of the prosecution on whom the prosecution has relied heavily to prove the offences alleged against the accused. Thus, this witness is treated as the material star witness of the prosecution who could prove the facts and circumstances, for proving the allegations against the State V/s Gurvinder Pal Singh FIR No. 352/02 JK 4 accused.
PW-7 SI Kehar Singh was the investigating officer (herein after referred as IO) of the case who had come to the witness box to prove the circumstances in which the investigation was conducted, the statements of the witnesses including the complainant/victim were recorded, the accused was arrested, and the other documents prepared or collected by him during the course of the investigation. Thus, he was the necessary and material witness to prove the circumstances and the documents prepared or collected by him during the course of investigation but as he had nothing to say about the allegations against the accused, to that extent, he is also treated as formal witness.
That is all for the ocular evidence of the prosecution.
5. Apart from the ocular evidence of two witnesses, the prosecution also produced the documentary evidence in support of its case, the same includes the copy of FIR Ex.PW-1/A, the arrest and personal search memo of the accused Ex.PW-2/A and B, the complainant of the complaint Ex.PW-5/A, rukka Ex.PW-7/A, the site plan Ex.PW-7/B. That is all for the prosecution evidence.
6. The statement of accused was recorded under section 313 Cr.P.C wherein when all the incriminating evidence and documents were put to the accused, he denied all the allegations and incriminating evidence and documents put to him as incorrect, taking the plea that the witnesses have deposed against him being the interested State V/s Gurvinder Pal Singh FIR No. 352/02 JK 5 witnesses and he is innocent and has been falsely implicated by the police officials at the instance of the complainant stating that his wife Smt. Ruby @ Gurpreet Kaur used to run a STD shop and the complainant came to the shop of his wife for making calls to her husband who was residing in Canada and a payment of Rs.1700/- was due upon the complainant and when the same was demanded back, the present case was filed against him.
In support of his defence, the accused produced two DWs namely Sh. Iqbal Singh and Ms. Bhupinder Kaur, who were examined as DW-1 and DW-2 respectively. These two DWs were produced to testify the conduct and previous enmity of the complainant with the accused. With the examination of these two DWs, the defence evidence was closed.
7. I have heard final arguments on behalf of the State as well as from the Ld. Defence counsel Sh. Chander Bhan on behalf of the accused.
Ld. APP for the State has submitted the public witnesses PW-3 Nirmal Kaur, PW-5 i.e the complainant and PW-4/6, i.e Paramjeet Singh, the brother of the complainant have supported the prosecution case.
On the other hand, Ld. Counsel Sh. Chander Bhan for the accused has submitted that all the PWs produced and examined from public were the interested witnesses, being the relative of the complainant, and that no independent witness produced despite availability of other independent public witnesses on the spot, as per prosecution case, that makes the case of the prosecution doubtful.
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 6 It was submitted that the complainant has a motive to file a false complaint against the accused as she had some dues to be cleared towards telephone bills, for the calls made to her husband at Canada, from the shop of the accused and on the quarrel, on demand of such payment by the accused family, raised by the complainant family, such complaint was lodged against the accused who was not even present at the spot at the time of occurrence and these facts have been proved through defence evidence of two DWs examined as DW-1 and DW-2, who were the independent witnesses, not related to the accused family.
It was further submitted that the material witness/complainant has reverted her version at the time of cross- examination, pertains to her allegations, admitting the defence regarding making of calls and payment due.
It was further argued that the witnesses have admitted the presence of members of family of the accused at the time of occurrence that falsifies the allegations as it is highly impossible and improbable, that any civilized person shall outrage the modesty of a women in the presence of his wife and his family members, that is also in the public, and also on the ground that public was present but not reacted on such incident.
It was further argued that the complainant has testified in the court that she became unconscious during the occurrence, but as per the allegations, there was no such assault or activities, that could make any person, unconscious and then also, no medical record was produced to prove such incident.
It was further argued that there is a delay of 3 days in recording of the FIR, making the complaint an afterthought.
It was further argued that the brother of the complainant State V/s Gurvinder Pal Singh FIR No. 352/02 JK 7 was present on his duty, between 9 a.m to 5.30 p.m, on the day of occurrence, and his presence at the spot at 3.45 p.m as an eye- witness, to such occurrence is highly improbable.
Thus, it was requested that the accused may be given benefit of doubt, on these grounds.
Ld. APP has rebutted the arguments of Ld. Counsel by way of counter, submitting that the delay has been explained being the complainant was under shock to regain and report the matter and that the material contradictions raised in the testimony of witnesses, are minor in nature and that the medical was not required as there was no external injury, for medical examination and that the complainant was taken out of the room, after breaking of the door, that itself makes the facts proved, for proving the intentions of the accused, for the offences alleged.
8. Before appreciation of evidence on record, it is worth to re- produce the provisions to appreciate the law on the points of allegations for the offences alleged against the accused.
The provisions of sections 342 and 354 IPC read as below:
Section 342 IPC : Punishment for wrongful confinement 'Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 354 IPC:- Assault or criminal force to woman with intent to outrage he modesty State V/s Gurvinder Pal Singh FIR No. 352/02 JK 8 '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 may extend to two years, or with fine, or with both.
9. The prosecution for proving the allegations against the accused, need to prove against the accused, for the offences punishable U/s 342/354 IPC, the following ingredients :
a). that the occurrence had taken place at the relevant date, time and place;
b). that during the occurrence, the complainant was wrongfully confined by the accused;
c). that the accused used criminal force and by using such force, outraged the modesty of the complainant with the intentions of outraging of her such modesty.
Also, it is well settled principle of law that for proving an offence punishable U/s 354 IPC :
"the culpable intention of the accused is the crux of the matter and the relation of the woman is very relevant."
as was observed in a case cited as AIR 1967 SC 63 P 65-67.
10. On appreciation of evidence on record consisting of ocular as well as documentary evidence on record, in the light of contentions of both the parties, it is observed that for proving its case, the State V/s Gurvinder Pal Singh FIR No. 352/02 JK 9 prosecution has examined total number of 6 prosecution witnesses, out of these six prosecution witnesses, three of them were the police officials, who came to the witness box either to authenticate the registration of FIR or to prove the investigation conducted by the IO who reached on the spot after the occurrence was reported by the complainant after 3 days. Thus, they were nothing to prove regarding allegations, thus, they were formal witnesses to that extent.
Therefore, the prosecution has heavily relied upon the testimony of three prosecution witnesses i.e the mother of the complainant, brother of the complainant and the complainant herself examined as PW-3, 4 and 5, but all these three witnesses, were the interested witnesses being the complainant and her relatives, who were interested in positive result of the prosecution, thus, their versions need close scrutiny of their testimony to reach to the right conclusion of the trial, particularly, when no independent public witness has been produced, though the occurrence had taken placed at a busy road and the availability of public witnesses has been admitted by these witnesses.
11. On careful perusal of the testimony of witnesses PW-3, 4 and 5 and on comparison of their testimony, it is observed that all these three witnesses being the eye-witnesses have described the occurrence in a different manner having material contradictions producing a different chronology of series of incidences. Also, their versions given in the court, in comparison to their statement made before the police, contain material contradiction, exaggerations, improvements, and omissions of vital nature.
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 10
12. It is observed that the complainant Harmeet Kaur examined as PW-5 has described the incident that on 26.05.02 at about 9 p.m, she along with her mother and brother had gone to the house of the accused to enquire about the false allegations conveyed by him and his family to her neighbourers, then during such talks, a quarrel had taken place between the family of the accused and of the complainant and during such quarrel, the accused namely Titu abused her, her brother and mother, and on their objection, the accused caught hold her, took her inside the shop and forcefully 'kissed' her, pressed her breast by bolting the door of the shop from inside and her brother had broken glass of the door of the shop and got her out. By that time, she became unconscious and was taken to her house. Also she deposed that she came to know later that the accused had given beatings to her brother and mother and she reported the matter only on 29.05.02, after 3 days.
13. The incident explained by the complainant in her complaint is described as that on 26.05.02 at about 9 p.m, when she had gone to the house of the accused and asked the accused about make of false allegations against her in the neighbourhood, then, the accused abused her. It is observed that her testimony contains improvements to the extent that she deposed about abusings to her mother and brother also.
Further, she described the incident that her mother and brother objected the accused to abuse, then, the accused along with his brother and wife, started quarreling with her. It is observed that in her testimony, there is an omission regarding involvement of the brother and wife of the accused in such quarrel, and omissions are vital in nature as number of accused persons have been changed in her State V/s Gurvinder Pal Singh FIR No. 352/02 JK 11 testimony.
She further described that all of these persons started beating them. Her testimony contains omissions to this regard as such beatings have not been mentioned by her, while describing the incident in the court.
She has further described in her complaint that the accused had taken her inside the shop and touched her breast and had forcefully kissed her. It is also observed that she has material contradictions about the activities of the accused, when she had changed the 'touching' to 'pressing' and the choronology of such activities. She has not described anything in her complaint regarding pushing her on the chair, whereas, she has improved her version in the court by describing that she was compelled to sit on the chair.
Further, she has described that she tried to come out of that shop but her brother had broken the glass and she was taken out. Here also, there is an improvement in her testimony that after breaking of the window glass, her brother had opened the bolts of the door and then, she was taken out. Thus, exaggerations also appear in her testimony while describing the incident.
14. It is further observed that the complainant has reported regarding making of threatening calls to her by the accused. To this extent, she has not spoken even a single word in her testimony and this is of vital importance on her part, regarding criminal intimidation extended to her by the accused.
Also, it is observed that during cross-examination of this witness, she has admitted that she has very good friendly relations and terms with the wife of the accused and that she has visited the family of the accused, number of times, prior to such incident.
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 12 Here, it is clearly mentioned that to gather the intentions of the accused, that is the crux of the matter, the relation of the woman with the accused and relations of the woman are very important factors, to draw intentions, cover the activities of the accused, within the ambit of 'outraging of modesty of the woman.' Her admissions regarding prior relations with the accused and his family and her reactions on the activities of the accused, inside the shop, that she did not react anything though a normal woman could reacted by slapping on such activities, abusing or in similar manner, rather it was her brother who had allegedly broken the window panes and took her out.
It is further observed that the witness has an admission that during talks, all of them had come outside the shop but she has not deposed as to how she was taken by the accused inside the shop, when all of them were out of the premises.
Thus, the circumstances in which she has reported that they had gone to the house of the accused to discuss some matter and a quarrel had taken place, between the members of both the families, do not match the fabric of intentions of the accused to do certain activities in the presence of a large number of person of his family to outrage the modesty of the woman.
15. It is nowhere clarified as to whether the house of the accused was a shop of the accused or the shop was house of the accused. The site plan Ex. PW-1/B does not throw any light in this regard as the address of the accused i.e Wz-44/1, Krishnapuri, is being mentioned on the eastern side of the map, without disclosing that this is the house of the accused and map shows Mark A as the place of State V/s Gurvinder Pal Singh FIR No. 352/02 JK 13 incident and this place does not show any entry to such area, that is being shown as Wz-44/1, Krishnapuri, and this premises is given as address of the accused on record.
The site plan also mentions 'B' as gate of the shop, made of glass, but that gate is on the main road. It is strange to note as to how the house of the accused was converted into shop of the accused and as to how the complainant and her family were sitting inside the shop of the accused, at odd hours of 9 p.m, when normally, the shop may not be opened at such odd hours, in the market.
It is also strange to note that the accused was present in the shop or in the house at that time and if the accused was present in the shop, then, how the family members of the accused were present there or if the accused was present in his house, after closing of the shop, then, how, all these persons were staying inside the shop where all the family members of the accused were also present.
16. Further, it is observed that the broken window panes are not a part of case property, nor it is being explained as to what instrument was used by the brother of the complainant, for breaking of the glass of the door of the shop, as it is not possible for a normal human being, to break the glass of a door of such density with hands and without any instrument, it is impossible to break such glass. Nor anywhere it is mentioned as to whether the brother of the complainant got any injury in such process of breaking the window pane, as no such medical record has been shown, pertaining to her brother who was examined as PW-4. All these facts make the testimony of the complainant (PW-3) untruthful and improbable, in view of the State V/s Gurvinder Pal Singh FIR No. 352/02 JK 14 observations made in a case titled as Jaskaran Singh Vs. State cited as 1997 SCC (Crl) 651 (HC), wherein it was observed that :
'When the evidence of first informant is found to be full of contractions, exaggerations and improvements, he cannot be held to be a truthful witness.'
17. Further, on appreciation of evidence of PW-4, the brother of the complainant, it is observed that as per his testimony, the description of the occurrence was in absolutely different manner, as he deposed that on asking from the accused, as to why he has made loose talks about the complainant in the neighbourhood area, the accused along with his brother and mother started beating them, means the accused, her brothers and mother, were present, at the time of the incident, and that just on beginning of the quarrel, the accused and his brother, had beaten all the three. The facts of beating and its chronology is absolutely contradictory to the description given by the complainant and also it has changed the presence of the number of persons, who gave beatings. As per the complainant, during some enquiries from the accused and his family, he abused the complainant and on objection on the abusings, the accused caught hold of the complainant and took her inside the shop and outraged her modesty, whereas as per PW-4, the accused and his brother, started giving beatings to all three just on the beginning of the talks. He further described the incident that when they were about to leave, the accused caught hold of her sister and took her inside the shop, whereas, the complainant described that on objections by her on such abusings she was caught hold of her and took her to the shop.
State V/s Gurvinder Pal Singh FIR No. 352/02 JK 15
18. Now, the contradictions in the version of PW-1, 4 and 5, are to the extent that place of the occurrence has changed, and the prosecution has failed to explain as to how the person who were already inside the place of the accused discussing some issues, can change the circumstances that one of them was taken into the shop, and the accused outraged her modesty by bolting it, inside.
Thus, these witnesses have not clarified as to whether they were sitting inside the house or in the shop or if they were in the shop as explained by the complainant, then, as to whether they were thrown out of the shop and the complainant was taken inside the shop or she was taken to other portion of shop, inside the shop itself having a glass door, that had a bolt, to close it and that was broken by her brother.
19. It is further observed that as per PW-4, the accused had misbehaved with her sister, by pressing her breast, that shows that the activities of the accused were seen by this witness, though as per the complainant, these activities were conducted inside the shop, after bolting of the door from inside.
Further, this witness has deposed that her sister raised alarm, but the complainant has nowhere mentioned that she raised alarm, and that, his brother on such alarm, reacted to break the window pane of the shop. This witness has also not explained as to whether he had broken the window pane with his own hands or with the help of some instrument and if no instrument was used, as to whether he got any injury in the process.
At the time of cross-examination, this witness has deposed State V/s Gurvinder Pal Singh FIR No. 352/02 JK 16 that he has broken the window glass by using his hands and legs, but nowhere in the evidence of the prosecution, it has been informed as to whether, while breaking the window glass with his hands and legs, the witness Paramjeet received any injury or not. This witness has clearly denied that he has opened the 'kundi' after breaking the glass that is contradictory to the stand taken by the complainant, that his brother bolted it out, and took her out of such room.
It is further observed that on such incident, these three persons i.e the complainant, her brother and mother did not raise alarm to call the public, when the shop was at the road that was a busy road, or that any of them, made a call to the police.
It is further observed that the incident described by this witness is absolutely different as described by the complainant, as per its chronology, and also pertaining to the activities conducted by the accused along with his family members, and thus, this witness has number of material contradictions to the testimony of the complainant and it is a well settled principle of law that if the material witnesses contains material contradictions in their versions, the witnesses cannot be treated as truthful witnesses. For these observations, the reliance is placed on a case titled as Idrish Bhai Daud Bhai Vs. State of Gujarat JT 2005 (2) SC 411 wherein it was observed that :
'in case of discrepancies in the evidence .....in-coherent statements regarding the presence of persons. .it was difficult to place reliance upon the witnesses particularly when the statements are apparently contradictory to FIR version.'
20. Further, it is observed that the 3rd witness i.e Smt. Nirmal Kaur, the mother of the complainant was examined as PW-3 who also State V/s Gurvinder Pal Singh FIR No. 352/02 JK 17 described the incident differently from the version stated by the complainant and her brother. She deposed while describing the incident that when they had gone to the house of the accused, the accused, his wife and his brother were present there. When she and her daughter enquired about loose talks made by the accused about her daughter in the locality, then, a quarrel had taken place and after quarrel, when they were about to leave, the accused caught hold of her daughter in the STD shop and started misbehaving with her daughter.
This witness has also explained the activities of the accused those were conducted inside the shop, as explained by the complainant, without disclosing as to how she witnessed such incident, when the activities were conducted inside the shop in a closed room, bolted from inside.
21. It is further observed that this witness has not deposed anything about the beatings given to them by the accused or his family, nor she has described about any kind of abusings given to any of them, nor, she has explained anything that the accused's brother and wife were also party to such assault.
Thus, in such manner, this witness has described the incident having material contradictions on the activities of the accused, conducted towards the complainant, with the description of the occurrence given by other two witnesses examined in the court.
Further, at the time of cross-examination, this witness has admitted that the incident had taken place inside the shop where apart from these three persons, five members of the family of the accused were also present, meaning thereby, that the occurrence had taken place in the presence of five members from the accused side and three State V/s Gurvinder Pal Singh FIR No. 352/02 JK 18 members from the complainant side, totaling thereby 8 persons, present on the spot i.e inside the shop of the accused. Here, it is observed that as per other two witnesses at the time of occurrence, only the accused, his wife and his brother were present, however, as per this witness, the accused, his wife, brother, mother and brother's wife were present. This witness has clarified that the incident had taken place inside the shop.
At the time of cross examination, this witness has reverted back that any scuffle had taken place, describing that only hot talks were exchanged, whereas other two witnesses has clearly deposed that it was a quarrel and beatings from the accused family to the family of the complainant were given.
This witness has categorically denied at the time of cross- examination, that the accused had given any beatings to her or to her son, whereas her son examined as PW-4 had deposed in the court that the accused along with his brother had started giving beatings to all the three.
This witness has given another description contradictory to the facts stated by other two witnesses that the bolt was later on opened by the wife of the accused, meaning thereby, that wife of the accused was also present inside the shop, when the incident of alleged outraging of modesty of the complainant had taken place.
22. The other two witnesses i.e the complainant and her brother have deposed that inside the shop, only the accused was present along with the complainant, whereas this witness has deposed that wife of the accused was also present along with the accused, inside the shop, who had opened the bolt of the shop.
Here, it is strange to note that as to how the need of State V/s Gurvinder Pal Singh FIR No. 352/02 JK 19 breaking of the window pane had arisen, when the bolt was opened by the wife of the accused from inside, that shows the improbability of the prosecution story described by these witnesses. This witness in her cross-examination has improved her deposition as given in her examination in chief, that the accused had torn the shirt of her daughter and gave scratches with nails on her neck. These activities are neither reported in the complaint of the complainant, nor in the testimony of the complainant, or of her brother examined as PW-4, nor any medical examination was conducted to show that criminal force used by the accused was such that the shirt of the daughter of the witness was torn and the complainant got such scratches on her neck and that her daughter sustained injuries, nor this witness has informed as to whether she was given any medical treatment for such injuries or not.
23. This witness has also informed the court that her husband i.e the father of the complainant returned back to Delhi on the next very day of 28.05.02, but the other two witnesses have informed that they returned back only on 29.05.02.
This witness has also admitted one fact that the accused kissed her daughter in front of everyone. This fact is also contradictory to the facts stated by other witnesses, that these activities were conducted by the accused inside the shop where except the complainant and the accused, no other person was present.
24. Thus, it is observed that all these three witnesses examined by the prosecution in the court, for proving the offences alleged, contains material contradictions of vital in nature, making the prosecution story highly improbable, on the test of reasonable State V/s Gurvinder Pal Singh FIR No. 352/02 JK 20 prudence and thus, the prosecution story becomes highly improbable, in view of the observations made in a case titled as Jandel Singh Vs. State of Madhya Pradesh 2003 (4) JT 558, wherein it was observed that :
"if vital improvements and contradictions are found in the testimony of the witnesses without any satisfactory explanation, thereby, the testimony of PWs- do not inspire confidence and cannot be relied upon."
25. It is further observed that the incident described by the prosecution and the manner described by the witnesses appears improbable on the test of reasonable prudence, as it is highly improbable in the culture of metropolis of Delhi, that any human being shall conduct such activities in his house, in the presence of his wife, mother, brother and brother's wife, as alleged against him and that the public passing through such busy road, shall ignore and will not interfere for such incident, in a shop situated on a busy road.
Also, it is highly improbable that the members of the family of the complainant do not raise any alarm to call the public or police and that the window panes of the door were broken with hands and legs, by the brother of the accused, without getting any injuries without the help of any instrument and reporting of the matter after 3 days is also highly improbable, in such situation that makes the story of the prosecution an afterthought.
Thus, the explanation given for delay that the complainant was unconscious under shock, is not plausible as no women can become unconscious on the activities reported by her, to the extent that she gained consciousness after 3 days to report the matter and even if, she was under the situation of shock, then, her mother and brother State V/s Gurvinder Pal Singh FIR No. 352/02 JK 21 could have reported the matter or at least have called the police by dialing 100 number.
26. Thus, material contradictions about description of occurrence in the testimony of witnesses and delay in reporting of the matter for 3 days, that are unexplained, also makes the prosecution story doubtful.
For these observations, the reliance is placed on a case titled as Ran Singh Vs. State of Rajashtan cited as 1999 Cr.L.J 2089 (Rajasthan High Court), wherein it was observed that:
'The delay in FIR not explained in such a case, is definitely fatal to prosecution on re-appreciation State V/s Gurvinder Pal Singh FIR No. 352/02 JK 22 of evidence, it is found that the prosecution has not been able to prove its case.'
27. Thus, it is observed that the prosecution cold not prove the material ingredients necessary for proving the offences punishable U/s 342/354 IPC, on the basis of evidence on record, as it has failed to prove the occurrence as such, the wrong retaining of the complainant by the accused and outraging of her modesty by using criminal force on her, beyond reasonable doubts.
28. Thus, on the basis of above observations on law and facts, the court is of the considered view that through the ocular evidence with the supporting documentary evidence on record, the prosecution could not successfully prove its case beyond reasonable doubts, against the accused Gurvinder Pal Singh for any of the offences punishable U/s 342/354 IPC.
29. Therefore, on the basis of principles of criminal justice system, as the prosecution has failed to prove its case beyond reasonable doubt, a benefit of doubt is given to the accused Gurvinder Pal Singh and he is accordingly acquitted from the charges levied against him U/s 342/354 IPC.
File be consigned to R/Room.
Announced in the open court On 31st Day of January, 2009 (Dr. ARCHANA SINHA) Metropolitan Magistrate, Tis Hazari Courts, Delhi State V/s Gurvinder Pal Singh FIR No. 352/02 JK