Delhi District Court
Satbir Kumar vs State on 29 November, 2018
IN THE COURT OF AJAY GOEL, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS), DWARKA
COURTS, NEW DELHI.
Criminal Appeal No. 377/18
In the matter of:
Satbir Kumar
S/o Sh. Ram Kumar,
R/o H. No. 157, VPO Jharoda Kalan,
South West Delhi,
New Delhi. .... Appellant
Versus
State .... Respondent
Date of Institution of the Appeal : 12.10.2018
Date of Arguments : 26.11.2018
Date on which judgment was pronounced : 29.11.2018
JUDGMENT:
1. Vide this judgment, I shall dispose of the appeal filed by appellant against the judgment dated 30.08.2018 and order on sentence dated 15.09.2018, whereby Ld. Trial Court convicted the accused/appellant herein for offence U/s 323/354/354B/509/34 IPC and sentenced the appellant to simple imprisonment of one year and fine of Criminal Appeal No. 377/2018 Page No. 1/16 Rs. 2,000/- and in default of payment of fine, further simple imprisonment for 7 days for the offence under Section 354 IPC, simple imprisonment for 3 years and fine of Rs. 2,000/- and in default of payment of fine further simple imprisonment of 7 days for the offence under Section 354B IPC, simple imprisonment of one month and fine of Rs. 1,000/- and in default of payment of fine further simple imprisonment for 3 days for the offence under Section 509 IPC and fine of Rs. 2,000/- and in default of payment of fine further simple imprisonment of 7 days for the offence under Section 323 IPC. All the sentences were ordered to run concurrently.
2. There were two other accused persons in the present case which were also convicted and simultaneously their appeal have been decided separately.
3. The facts in brief are that on 02.04.2014, at about 05.30 p.m., at RZ-14, Prem Nagar, Todarmal Colony, Criminal Appeal No. 377/2018 Page No. 2/16 Najafgarh, accused SK and R assaulted the complainant by pressing her breast and holding her and also torn her cloths with intention to outrage her modesty and accused Sa alongwith accused SK and R also uttered words against complainant intending to insult her modesty and also voluntarily caused simple hurt to her. Accused Sa even criminally intimidated her to kidnap her through some boys. On these allegations, investigation was carried out and after investigation chargesheet for the offence under Section 354/509/341/506/323/34 IPC was filed.
4. The Ld. Trial Court took the cognizance of offence.
Charge for the offence U/s 509/323/34 IPC was framed against all the accused persons, charge for the offence U/s 354/354B/34 IPC was framed against accused R and SK and charged for the offence U/s 506 IPC was also framed against accused Sa vide order dated 01.03.2016, to which they pleaded not guilty and claimed trial. Criminal Appeal No. 377/2018 Page No. 3/16
5. In evidence, prosecution examined 7 witnesses in support of its case.
PW1 S. She is the complainant of the present case.
PW2 WHC Raj Bala. She has deposed that on 02.04.2018, she joined the investigation alongwith Ct. Ravikant and IO. She further deposed that she took complainant to RTRM Hospital and got conducted the medical examination of the complainant. She also deposed about the seizure of cloths of complainant, which were seized by the IO vide seizure memo Ex.PW1/C. PW3 Ct. Ravi Kant. He joined the investigation of the present with IO SI Ranbir Singh and deposed about the investigation and proceedings conducted by him as well as by SI Ranbir Singh in his presence. PW4 SI Ranbir Singh. He is the IO of the present case and deposed about the investigation carried out by him. He proved DD No. 78B and 79B as Ex.PW4/A and Ex.PW4/B, statement of complainant as Ex.PW1/A, Criminal Appeal No. 377/2018 Page No. 4/16 tehrir as Ex.PW4/C, site plan as Ex.PW1/E, MLC of complainant as Ex.PW1/B, seizure memo of torn shirt of complainant as Ex.PW1/C, statement of complainant under Section 164 Cr.P.C. as Ex.PW1/D, arrest memo of accused Satbir and Raju Nagar as Ex.PW4/D and Ex.PW4/E respectively, their bail bonds as Ex.PW4/F and Ex.PW4/G and case property as Ex.P1.
PW5 Ct. Roshan. He has deposed that on 02.04.2014, he was posted as DD Writer and further deposed about recording of DD No. 78B and 79B.
PW6 Ct. Rajesh. He has deposed that on 25.05.2014, he joined the investigation of the present case and proved the arrest memo of accused Satbir Kumar as Ex.PW4/D and his bail bonds as Ex.PW4/F. PW7 Dr. Rajeev Solanki. He has deposed that on 02.04.2014,he examined patient/ complainant and opined the nature of injury as simple. He proved the MLC as Ex.PW1/B. Criminal Appeal No. 377/2018 Page No. 5/16
6. Vide order dated 02.08.2018, on the submissions of Ld. APP, prosecution evidence was closed.
7. Statement of all accused under Section 313 Cr. P. C. was recorded on 02.08.2018. Accused SK has stated that he has been falsely implicated in the present case. He further stated that on the day of incident, complainant alongwith 3-4 gundas came to his house and broken the gate and thereafter, they had beaten his wife and his family. He further deposed that I informed the police about the matter through phone No. 9211317771 and statement of Ct. Roshan u/s 161 Cr.P.C. was recorded to this effect by the IO. He further stated that on the day of incident, his brother-in-law was not present at his residence. He further stated that he did not wish to lead evidence in his defence.
8. After hearing the final arguments in the matter, the Ld. Trial Court convicted the accused for the offence U/s 323/354/354B/509/34 vide judgment dated 30.08.2018 Criminal Appeal No. 377/2018 Page No. 6/16 and the Ld. Trial Court sentenced the appellant as aforesaid. Hence, present appeal was preferred by appellant.
9. It is submitted by the counsel for the appellant that complainant is wife of his brother and this case was got registered by her in counter blast to the case which was got registered under Section 354 IPC by his wife against husband of the complainant herein on 31.03.2014 at PS Najafgarh. It is further submitted that the complainant in order to pressurize the appellant and his family members got registered the present case falsely in connivance with the police. It is further submitted that though the husband of the complainant was acquitted by the Ld. Trial Court but in appeal filed by the State against the said order of acquittal, Ld. Appellate Court has reversed order of acquittal and convicted the husband of the complainant vide judgment dated 09.08.2016. It is further submitted that the Ld. Trial Court has failed to appreciate the fact that there were many contradictions Criminal Appeal No. 377/2018 Page No. 7/16 and improvements in the testimony of the complainant and there was no independent witness of the alleged incident. It is further submitted that on the day of alleged incident dated 02.04.2014, it was the complainant, who had tried to break open gate of the house of the appellant and he had informed the police from his mobile phone and on the said information, DD No. 78A was registered at PS Najafgarh but instead of taking any action against the complainant, the appellant, his wife and brother-in-law were falsely implicated in the present case by the police. It is further submitted that the judgment of the Ld. Trial Court deserves to be set aside and the appellant is entitled to be acquitted. On the other hand, Ld. APP submits that there is no infirmity in the judgment and order on sentenced passed by the Ld. Trial Court and the Ld. Trial Court has rightly convicted and sentenced the appellant. It is further submitted that the prosecution has successfully proved its case beyond any reasonable doubt. It is further submitted that there were no material contradictions in the testimony of the complainant. It Criminal Appeal No. 377/2018 Page No. 8/16 is further submitted that the appeal of the appellant is liable to be dismissed.
10. In rebuttal and in support of his arguments, Ld. Counsel for the appellant has filed written arguments and certified copies of judgment dated 09.08.2016 passed by Ms. Ravinder Kaur, Ld. District & Session Judge, Dwarka Court, New Delhi and certified copy of judgment dated 25.02.2016 passed by Ms. Manu Goel Kharab, Ld. MM, Mahilla Court. The documents i.e. the judgment of Ld. District & Session Judge referred above was not before the Ld. Trial Court while passing the judgment and this document was filed subsequently in the appeal, which being the certified copies are admissible in Indian Evidence Act.
11. I have perused the file, Ld. Trial Court Record and gone through the written arguments of the counsel and the certified copies of the judgment passed by the aforesaid Courts.
Criminal Appeal No. 377/2018 Page No. 9/16
12. From the perusal of the Ld. Trial Court Record, it transpires that an information was received at PS Najafgarh at about 05.55 p.m. on 02.04.2014 from phone No. 9211317771 that some persons were breaking the gate of the house of the caller and the same was recorded vide DD no. 78B Ex.PW4/A and the same was given to SI Ranbir Singh for necessary action. Subsequent to this another DD Entry was made vide DD No. 79B vide Ex.PW4/B on the same day at about 6 p.m., which was also handed over to SI Ranbir Singh. Perusal of DD no. 79B shows that the complainant herself had come to PS for making the complaint but surprisingly, in the rukka Ex.PW4/C, the IO Ranbir Singh had mentioned that on receipt of DD No. 78B, he had reached the spot and the complainant was found there and gave her statement. The certified copy of judgment passed by Ms. Ravinder Kaur, Ld. District & Session Judge shows that it was the appeal filed by the State against the order of acquittal passed by Ld. Mahila Court in case FIR No. 279/14 at PS Criminal Appeal No. 377/2018 Page No. 10/16 Najafgarh and the wife of the appellant herein was the complainant in the said case. The aforesaid FIR was registered on dated 31.03.2014 before 02.04.2014, which is the date of the FIR of the present case. The husband of the complainant was convicted by the Ld. Appellate Court in case FIR No. 279/14. The appellant herein is the brother of the husband of the complainant and they belong to same family. In view of the fact that there is no independent witness in the present case and the fact that the husband of the complainant has been convicted by a Court of Law in a case registered on the basis of complaint of the wife of the appellant, it becomes necessary to scrutinize the record and the evidence very carefully and to take the entire facts into consideration for reaching at a conclusion upon the credibility and trustworthiness of the witnesses and complainant and to see whether the present FIR is counter blast or the accused persons have been falsely implicated. The complainant had deposed that on 02.04.2014, she had come to Dwarka Court in relation to bail case of her Criminal Appeal No. 377/2018 Page No. 11/16 husband and returned to her home at about 05.30 p.m. She further deposed that when she opened the lock of small gate fixed in the bigger gate of her house, she observed that lock of big gate was broken and thereafter, seeing this, she called to one of her friend. From her testimony, it is clear that a case was already registered against her husband prior to 02.04.2014 and she had called one her friend. The arguments of the counsel for the appellant that the present case is counter blast case filed by the wife of the appellant against the husband of the complainant and that the friend of the complainant was not joined into investigation at any point of time nor he was cited as a witness, have some force. From perusal of the record, including DD No. 78B and 79B, it appears that there are material contradictions in the case of the prosecution to the fact that whether the complainant herself came to the police station or she had met the IO at the spot, when he reached there on receiving DD No. 78B. It creates a doubt in the case of the prosecution on this point. There is a little difference Criminal Appeal No. 377/2018 Page No. 12/16 of time i.e. of 5 minutes in recording of both the DD entries. DD No. 78B was recorded at 5.55 p.m. where as DD No. 78B was recorded at 6 p.m. Both the aforesaid DD Entries are relied upon by the prosecution and has been filed with the chargesheet. During the entire investigation, no document was placed on record to show that who was the user of mobile phone No. 9211317771, who made the call to the police rather in statement under Section 313 Cr.P.C., it was claimed by the appellant that he was the informant/caller of DD No. 78B. Keeping in view the aforesaid facts and circumstances, some doubt is created upon the credibility and trustworthiness of the testimony of complainant and the police witnesses.
13. It is common and general phynomina that some times, complainants and interested witnesses in many cases often implicate the other party in some case to take revenge and file counter cases to settle their scores and in the circumstances discussed above with regard the credibility and trustworthiness of the complainant, the possibility of Criminal Appeal No. 377/2018 Page No. 13/16 arraying the appellant as an accused in this case falsely cannot be ruled out and even otherwise, it has been shown on record that the FIR registered against the husband of the complainant on the allegations of the wife of the appellant was registered prior to the registration of the present case. The Ld. Appellate Court in the said FIR has decided the case in favour of the wife of the appellant herein and against the husband of the complainant herein.
14. From the record, it appears that the complainant was an interested person to save her husband in the case registered by the wife of the appellant. The circumstances show that the statement of the complainant is self serving statement and there is no other eye witness in the present case and in view of the above discussion, the possibility of false implication of the appellant and the other accused persons, who are wife and brother in law of the appellant respectively cannot be ruled out in order to settle the matter of case FIR No. 279/14 referred above registered on the Criminal Appeal No. 377/2018 Page No. 14/16 complaint of wife of appellant against the husband of the complainant. PW1 has admitted the litigation going on between the parties. She has also admitted that on 24.03.20015, quarrel had taken place in which her husband was also involved. In whole cross-examination, it is crystal clear that she is avoiding the answers. She has also admitted that her house is locked. She has rather stated that she had made a call to her one well wisher but had failed to disclose his name. That well wisher has not been produced in witness box. No call details showing that she had made call to that well wisher has been placed on record. Undoubtedly, where the incident had taken place, there are many residential houses. It is highly improbable that incident which had taken place at 05.30 p.m. in April month would not be witnessed by anybody. In the list of witnesses also no name of any witness has been mentioned. It would not be safe to convict the accused on the uncorroborated piece of evidence that too on the basis of self serving statement of the complainant, who has vested interest. The above Criminal Appeal No. 377/2018 Page No. 15/16 circumstances create a doubt in the prosecution case and upon the credibility and trustworthiness of the complainant and the benefit has to be given to the appellant.
15. So, in these circumstances, the present appeal stands allowed. The appellant herein is acquitted for the charged offence. Bail bonds furnished as per direction of the Court shall remain in force for a period of six months.
16. Copy of this judgment be sent to Ld. Trial Court with TCR.
17. Appeal file be consigned to record room.
Digitally
18. Ld. Trial Court Record be sent back. signed by AJAY AJAY GOEL Date:
GOEL 2018.12.05
17:03:50
+0530
Pronounced in the open court. (Ajay Goel)
Dated : 29.11.2018 ASJ/Spl. Judge(NDPS),
Dwarka Courts, New Delhi
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