Delhi District Court
Rachin Gupta vs The State (Nct Of Delhi) on 23 September, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
Criminal Appeal No. 81/2019
CNR No. DLWT01-003334-2019
In re:
1. Rachin Gupta
S/o Sh. Manoj Kumar
R/o H.No. A-15, DDA Colony,
Khyala, New Delhi
2. Naresh Kumar
S/o Sh. Sukhbir Singh
R/o H.No. A-12, DDA Colony,
Khyala, New Delhi
3. Ramesh Chander
R/o Sh. Lalwan Das
R/o H.No. A-523, DDA Colony,
Khyala, New Delhi
4. Smt. Rekha Gupta
W/o Sh. Manoj Kumar
R/o H.No. A-15, DDA Colony,
Khyala, New Delhi ...... Appellants
Versus
The State (NCT of Delhi) ....... Respondent
Date of filing of appeal : 27.04.2019
Date of hearing arguments : 09.09.2021
Date of judgment : 23.09.2021
Appearances:
Sh. Anand Maheshwari, Advocate for the appellants.
Sh. Atul Kumar Shrivastava, Addl. PP for the State/respondent.
Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 1 of 12
JUDGMENT
1. The four accused persons, namely Rachin Gupta S/o Sh. Manoj Kumar, Ramesh Chand S/o Sh. Lalwan Das, Smt. Rekha Gupta W/o Sh. Manoj Kumar and Naresh Kumar S/o Sh. Sukhbir Singh were arraigned for trial by the prosecution on the allegations that on 30.11.2008 at about 9.30 p.m. at DDA Market, Khyala, Vishnu Garden, Delhi near Parking of DDA Market, Tilak Nagar, Delhi that all in furtherance of their common intention used criminal force upon the complainant 'MG' (referred by pseudonym to protect her identity) with intention to outrage her modesty and thereby committed an offence punishable under Section 354/34 IPC; and secondly they all in furtherance of their common intention voluntarily caused hurt to her and caused damaged to her property and thereby, committed an offence punishable under Section 323/427/34 IPC. The accused persons pleaded not guilty to the charge and claimed trial.
BRIEF FACTS:
2. Briefly stated, the case of prosecution is that on 30.11.2008 at about 9.40 am ASI Srikishan received DD No.29AEx A-2 lodged at PS Tilak Nagar through Wireless Operator regarding incident of quarrel and assault, which was kept pending and ASI Srikishan reached at DDU Hospital, where he obtained the MLC of the injured 'MG' Ex.PW-
6/B and her husband Sh. Ramesh Gupta, which is Ex.PW-6/A with remarks of alleged history of assault and injuries being found 'simple' with some blunt object and after obtaining the same, he came back to the Police Station, where the complainant 'Smt. MG' appeared with her Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 2 of 12 husband and made a complaint Ex.PW-2/A in Hindi, which reads as under:-
"बययन ककयय कक मम पतय उपररकत पर सपररववर कक रहतत हह ह और घरकलल wife हह ह ददनवनक 30/11/08 कक मम अपनक पदत कक सवथ अपनक ररशतकदवर सनजय गलपव कक घर आदरर नगर गयक थक और अपनत Car No. DL2CAG-2547 मम गयक थक और रवम कक ववदपस अपनक घर समय करतब 9.30 pm पर आकर अपनत कवर कक गलत कक सवमनक खडत कक और मम अपनत कवर सक नतचक उतरत तक इसत समय रदचन गलपव s/o मनकज गलपव, नरकर s/o सलखवतर जक सवमनक रहतक हह जजनकक हम पहलक सक जवनतत हह ह रदचन नक मलझक छवतत पर हवथ मवरव व नरकर नक मकरव हवथ पकड जलयव व मलहह पर चवनटव मवरव व रकखव गलपव नक आकर मकरव गलव दवव ददयव जक इसत ददरवन मकरव पदत रमकर गलपव मलझक छलड छ ववनक आयव तक रदचन गलपव व नरकर नक सवमनक अपनक घर सक बकसववल (डनडव) व हवकक लककर आयक रदचन गलपव नक मलझक डनडक सक जसरव कई जगह ववर दकयव व नरकर नक हवकक सक मकरक पदत व मलझक भत मवरव व रकखव गलपव नक मलझक पकड जलयव न नरकर नक ईटन उठव कर हम दकनक कक मवरत जजससक हमक गलम चकट आई इसकक बवद चकरक उपरककक नक दमल कर हमवरत Wagon R उपरकक डनडक व पतथरर सक चवरक तरफ कक दररव व गवडत कक कवफक damage कर ददयव उपरकक रदचन गलपव मवह रकखव गलपव व नरकर s/o सलखबतर r/o A-12 JJ कवलकनत खयवलव व रमकर जक सवमनक रहतक हह उपरकक वयदकयर नक पहलक भत कई बवर Car Parking पर झगडवछ कर चलकक हह दद0 30/11/08 कक मम चकट व घबरवहट कक कवरण अपनव बयवन नहह दक सकक आज आप कक अपनव बयन तहरतर करववय़व हह इन लकगकक कक जखलवफ कवनननत कवयर ववहत कव जवबक बयवन पढ जलयव ठतक हह।"
3. On the basis of the said complaint, rukka endorsement Ex.PW-1/B was made and the present FIR bearing No.440/2008 was recorded on 01.12.2008 at 20:50 hours. During the course of investigation, the site plan of the place of occurrence was prepared and the Wagon-R car bearing registration No. DL2CAG-2547, which was in damaged condition at the spot, was seized vide memo Ex.PW-3/A and one broken Baseball bat (danda) was recovered from the spot and seized vide memo Ex.PW-5/D. The accused Rachin Gupta s/o, Ramesh Chand and his father Ramesh Gupta S/o Lal Chand Dass and Naresh Kumar were then arrested on 01.12.2008 vide memos Ex.PW- 3/B and 3/D and their personal search was conducted vide memos Ex.PW-5/A and 5/C respectively. After completion of investigation the present charge-sheet was filed for prosecution of the accused persons Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 3 of 12 i.e. the appellants herein for the commission of offence punishable under Section 323/354/427/34 IPC.
4. On the accused persons pleading not guilty, the prosecution examined as many as 7 witnesses. The main witnesses for the prosecution were PW-2 Smt. MG and PW-3 Sh. Ramesh Gupta. PW-1 was ASI Onkar Singh, who was the duty officer at PS Tilak Nagar and deposed that he registered FIR, copy of which is Ex.PW-1/A and made endorsement on the rukka Ex.PW-1/B; PW-4 was HC Kailash Chand, who brought the register No.19 of PS Tilak Nagar and deposed about bringing of Wagon-R Car bearing No. DL2CA-2547 and one broken slagger, which was recorded vide Sr. No. 5844 on 01.12.2008 Ex.PW-4/A and deposed that same was released on Superdari on 06.12.2008 in favour of Smt. 'MG'. PW-5 was ASI Bhagwan Dass, who deposed that on 01.12.2008 at about 9.30 p.m. he received copy of FIR from duty officer and handed over the same to ASI Srikishan at DDA Market, Khyala ,Vishnu Garden. He also deposed that the site plan was prepared at the instance of Smt. MG and accused persons, namely Rachin Gupta, Ramesh Kumar and Naresh Kumar were arrested vide memos Ex.PW-3/B, PW-3/C and PW-3/D respectively. He also deposed that one baseball broken danda Ex.P-2 was seized vide memo Ex.PW-5/D. PW-6 Desh Raj was the Record Clerk from DDU Hospital, who deposed about remarks on the MLCs written by Dr. Dheeraj Nath, who was the then Senior Resident at DDU Hospital and since then had left the services of the Hospital. Lastly, ASI Technical Devender Kumar was examined as PW-7, who deposed that he mechanically inspected the Wagon-R and gave his Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 4 of 12 report Ex.PW-7/A. The Investigating Officer could not be examined as he had died during the course of trial.
5. On the close of prosecution evidence, the accused persons were separately examined under Section 313 Cr.P.C. and all the incriminating evidence and facts brought on record during the course of trial were put to them. Suffice to state, the accused persons denied the prosecution case and claimed innocence. Accused Ramesh Kumar stated that accused Rachin Gupta was his son and the complainant used to park her own Car outside and adjoining to their house and his son Rachin Gupta had also a Car and he used to request the complainant to park her Car infront of her house or at the parking place at DDA but the complainant refused to do so and instead used to park outside their house and her car met with an accident and taking advantage of the same, the complainant has falsely implicated himself, his wife and his son and one of his neighbour Naresh Kumar.
6. Suffice to state that almost ditto defense version was stated by the other three accused persons. It is pertinent to mention her that statement of accused persons were recorded on 26.09.2017 and they admitted recording of DD No. 38A and 29A dated 30.11.2008, which were marked as A-1 and A-2 respectively. The accused persons in their defence produced DW-1 Rajender Pal Singh, who supported the version of the accused persons. Another witness was DW-2 Sh. Rahul Kumar, who stated that on 30.11.2008 he came back from his office and there was a quarrel going on but all the accused persons dispersed from the scene of quarrel.
Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 5 of 12IMPUGNED JUDGMENT:
7. Ld. Trial Court vide the impugned judgment dated 27.03.2019 believed the testimony of PW-2 Smt. MG the complainant as well as her husband PW-3 Ramesh Gupta to the effect that the appellant Rachin Gupta pushed the complainant by touching her breast and appellant Naresh Kumar caught hold of her hands and slapped her, and a finding was given that accused Rekha Gupta and Ramesh Chand came thereafter but they did not assault the complainant and her husband and accordingly the ld Trial Court convicted the appellants Rachin Gupta and Naresh Kumar for the offences under Section 354/323/427/34 IPC and the appellants Rekha Gupt and Ramesh Chand were convicted for the offences under Section 323/427/34 IPC.
8. Further, vide order on sentence dated 08.04.2019 Ld. Trial Court sentenced the appellants Rachin Gupta and Naresh Kumar to undergo Rigorous Imprisonment for a period of 6 months for the offence under Section 354 IPC; all the four appellants were also sentenced to to pay fine of Rs. 1000/- each for the offence under Section 323 IPC and to pay a compensation of Rs. 3750/-each for the offence under Section 427 IPC. All the sentences were ordered to run concurrently with benefit of detention to be set-off under Section 428 Cr.P.C.
GROUNDS OF APPEAL
9. The appellants in their joint criminal appeal under Section 374 Cr.P.C. have assailed the impugned Judgment on conviction to the effect that alleged incident took place at a busy public area and no Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 6 of 12 independent witnesses were joined by the Investigating Officer ; and that ingredients of offence under Section 354 IPC were not made out as it was a case of sudden quarrel that ensued between the parties over the issue of parking of their car in front of their house; and that the Ld. Trial Court failed to appreciate that PW-2 and PW-3 were holding grudges against them as previously two complaints had been filed against them on 03.11.2008 as well as 02.01.2009; and that the conviction under Section 323 IPC was based on no material as the MLCs do not reflect any injuries suffered by the complainant and her husband and lastly the conviction under Section 427 IPC cannot be sustained as the Ld. Trial Court failed to consider that no Hockey Stick was recovered from the spot or from any of them.
DECISION:
10. I have given my thoughtful consideration to the submissions made by the Ld. Counsel for the appellants/convicts and the Ld. Addl. PP for the State. I have also gone through the instant appeal file as well as evidence brought by the prosecution on the judicial record during the trial of the case.
11. At the outset, the entire prosecution is on a slippery slop. In the instant case PW-2 'MG' reiterated the version of incident as reflected in her complaint Ex.PW-2/A. She testified that as she was getting her car parked, the appellant Rachin Gupta pushed her by touching her breast and appellant Naresh Kumar caught hold of her hands and slapped her while the appellant Smt. Rekha Gupta held her by her throat as soon as her husband intervened, the appellant Rachin Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 7 of 12 Gupta brought a baseball bat and appellant Naresh brought a Hockey stick and while appellant Rachin Gupta hit her, the appellant Naresh Kumar hit her husband and in the melee appellant Smt. Rekha Gupta caught hold of while the appellant Ramesh Gupta hit her husband with a brick.
12. The testimony of PW-2 was corroborated by PW-3, her husband in a parrot like manner in his examination-in-chief. On reading the testimony of the witnesses as a whole, I find that the same is not inspiring confidence for the reasons that in their cross-examination PW-2 and PW-3 admitted that previously also there had been some squabbles with the appellant party over the parking of their cars and PW-2 conceded that earlier one FIR had been registered against her husband on the complaint lodged by the appellant party and that another dispute between the parties had reached the Court of Special Executive Magistrate, where a compromise was also effected.
13. Now, it is apparent that PW-2 and PW-3 were holding grudges against the appellant party. What turns the scales against the case of prosecution is that it is the testimony of PW-2 that the police soon called after the quarrel took place between them and the appellant party but it stares on the face of record that there was a delay of almost 24 hours in lodging the complaint and registration of the FIR.
A bare perusal of the MLC of PW-2 Ex.PW-6/B would show that she was taken to Hospital on 30.11.2008 at 10.41 p.m. and there was 2 cms CLW on her scalp with abrasion and tenderness over the wrist of her right arm. She was otherwise conscious and well oriented.
Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 8 of 12Likewise, the MLC of her husband PW-3, which his Ex.PW-6/A would show that he was medically treated in the Hospital about the same time on 30.11.2008 at 10.40 p.m. and it was found that he was having multiple bruises on the scapula resulting in restricted movement of left shoulder and causing was pain but he was also conscious and well oriented. The injuries were opined to be 'simple'.
14. Now, if the version of PW-2 'MG' and her husband PW-3 is believed that they were hit with danda and Hockey and also using brick, the nature of injuries reflected in the MLCs Ex.PW-6/B and PW-6/A fail to corroborate the assault by way of baseball bat, Hockey or brick. If both PW-2 & PW-3 were medically fit to make a statement, it is not explained why there was delay in lodging the FIR. It is not the testimony of PW-2 that there was any blemish on the part of the Police.
15. Coming the prosecution case of molestation of the complainant (PW-2 'MG')It would be expedient to refer to Section 354 of the Indian Penal Code, which reads 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."
16. A bare perusal of the aforesaid provisions would show that it is intentional act of using criminal force or causing assault so as to outrage the modesty or having knowledge that it is likely to cause or result in outrage of modesty of woman that is made punishable. In a Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 9 of 12 case of free for all skirmish where the parties try to push each over and involves lot of jostling against one another without anything more, mere pushing not accompanied with any words or gesture by the offender can not be held to be a case of outraging modesty of woman within the meaning of Section 354 IPC.
17. Thus, the testimony of PW-2 that she was molested or her modesty was outraged as the appellant Rachin Gupta pushed her by her chest, appears to be an attempt to give a different twist and colour to the entire story. There is nothing in the testimony of PW-2 'MG' that appellant Rachin Gupta uttered any indecent words or innuendos to hurt her modesty. If the facts and circumstances are believed, there arose spontaneous altercations between the parties and in the melee even if PW-2 was pushed by pressing her chest, it cannot be a case of intention of the appellant Rachin Gupta to outrage her modesty.
18. Now a days, we are witnessing petty quarrels over the parking of vehicles in the residential as well as commercial areas, which is occurring due to lack of parking space and also due to unsavory habits of the people desiring to park their vehicles in front of their house rather than parking their vehicles at the authorized parking lots. Unfortunately, this was a case where the Investigating Officer could not be examined as he died during the pendency of trial. The site plan, which depicts the place of occurrence, is cryptic one and no one has explained as to who had a right or otherwise prerogative to park the vehicle at the site. PW-3 in his cross-examination revealed that there was designated parking space for the residents but no particular Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 10 of 12 place was allotted or demarcated for any residents of such place. Any how, it is also brought out in the cross-examination that the place of occurrence is near the DDA market, where people are residing in the houses built above the shops but then no independent witnesses were examined despite the area being quite densely populated.
19. Both the parties in the present case were otherwise neighbours and both appear to be involved in this unnecessary litigation for their blemishes in not maintaining social manners, discipline and harmony. Lastly, in so far as the impugned judgment convicting the appellant under Section 427 IPC is concerned, PW-3 conceded that he had already claimed insurance for the damage caused to his car. The complainant party has not made clean breast of the documents that were filed by them for seeking insurance refund towards the cost of repairs to the damaged car, which invites an adverse inference, and thus supports the defense theory that the car was involved in an accident and the complainant party chose to falsely accuse them of assault and use of criminal force to settle old scores.
20. In view of the aforesaid discussion, since there has been previous history of enmity between the parties, it would not be prudent to hold the appellants guilty on mere testimony of interested witnesses viz., PW-2 and PW-3 without independent corroborative evidence. I find that the prosecution fails to prove the guilt of the appellants beyond reasonable doubt. Accordingly, the present appeal is allowed and the impugned judgment dated 27.03.2019 and order on sentence dated 08.04.2019 are set aside and the appellants are acquitted of all the Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 11 of 12 charges. The appellants are directed to comply with the provisions of Digitally signed Section 437-A Cr.P.C. DHARMESH by DHARMESH SHARMA SHARMA Date:
2021.09.25 12:05:17 +0530 Announced in the open Court (DHARMESH SHARMA) nd on 23 September, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi Criminal Appeal-81/2019 Rachin Gupta & Ors. v. State Page 12 of 12