Delhi District Court
State vs Sh. Abhimanyu on 21 March, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CA No.18/15
State
Govt. of NCT of Delhi
Through Public Prosecutor,
Central District .....Appellant
Versus
Sh. Abhimanyu
H. no. 16/648H,Bapa Nagar,
Karol Bagh,
Delhi .... Respondent
17.03.2016
O R D E R
1. Vide this order I shall dispose off present appeal filed by the State against the order of acquittal dated 31.08.15 passed by Ld. Trial Court in FIR bearing No. 327/13 U/s 323/354/354 A/509 IPC pertaining to PS Prasad Nagar(parties are hereinafter being referred to by their respective status before trial court)
2. Brief facts are that victim (hereinafter referred to as 'S') (name has been concealed as it is the case U/s 354 IPC) made a complaint to the police on 09.12.13 that she was working as CA No. 18/15 State Vs. Abhimanyu 2 Nursing Orderly in Joshi Hospital and for the last one year one boy whose name was later on ascertain as Mannu S/o Uttam R/o Bapa Nagar, Karol Bagh, New Delhi wherever meets her on the way abuses her giving dirty expletives.
3. That today on 09.12.13 at around 04:30 P.M she was going to a shop for fetching Elfy, around the said place above person named Manu was also passing by, who on that day also started abusing her on seeing her. As he passed her, in order see his house, she started following him and when she tried to enter into his house, she confronted him and asked him why he had been abusing her, on this he slapped her 45 times on her face and in order to insult her modesty he put her hands on her chest, whereafter pushing her he ran away. On inquiry from the neighbourhood his name was revealed as Manu, thereafter she made a call from STD Booth at 100 number. Police came there and recorded her statement, on the basis of which Rukka was written by SI Pawan Kumar and the statement of the complainant was recorded. She was taken to Lady Harding Medical College through a lady constable, where MLC was prepared on which the opinion was given by the CA No. 18/15 State Vs. Abhimanyu 3 Doctor 'simple blunt', thereafter case was registered U/s 354/354A/323/509 IPC and investigation was taken up by SI Pawan Kumar. Statement of complainant was also got recorded U/s 164 Cr.P.C before Ld. MM on 30.07.14. Thereafter at the instance of complaint accused was arrested on 10.12.13, after his arrest his personal search memo and arrest memo were prepared and after completion of investigation the charge sheet U/s 354/354D/323/509 IPC was filed against the accused.
4. After filing of charge sheet charge U/s 323/354/354D/509 IPC was framed against the accused vide order dated 28.01.15, whereafter matter went to trial, after the examination of complainant who was examined as PW7 and the IO PW6 SI Pawan Kumar, thereafter prosecution evidence was closed, statement of accused U/s 313 Cr.P.C was recorded in which his defence was simplicitor that he had been falsely implicated in this case at the instance of complainant and he chose not to lead any defence evidence.
5. Thereafter on conclusion of final arguments, Ld. MM vide order dated 31.08.2015 acquitted the accused of all the charges U/s CA No. 18/15 State Vs. Abhimanyu 4 323/354/354D/509 IPC mainly on the ground that testimony of victim 'S' was not found to be trustworthy, as there were contradictions and improvements in her testimony, as the complainant as in her examination in chief had stated that accused was arrested in her presence and the personal search was conducted in her presence, however in her cross examination she denied that it was so, nor any public person was examined by the prosecution, despite the fact that where incident took place was a public place, therefore in the absence of corroboration testimony of victim 'S' was not reliable.
6. It is against the said order the state/prosecution has approached this court on various grounds, including the following main grounds that the Victim 'S' has fully supported the prosecution case. Ld. Trial court has failed to appreciate the testimony of the victim in correct perspective, there was no motive of false implication. Ld. Trial court had passed the judgment contrary to the law, as it has been held by Hon'ble Supreme Court from time to time that the testimony of sole witness is sufficient, if it is natural, trustworthy and no CA No. 18/15 State Vs. Abhimanyu 5 corroboration is required, Ld. Trial court had not correctly appreciated the evidence and acquittal returned by Ld. Trial Court was not correct and was liable to be set aside.
7. I have heard Sh. G.S.Gauraya, Ld. Counsel for the State(appellant) and Sh. Atul Kumar Gupta Ld. Counsel for the respondent/accused and perused the record.
8. From the testimony of victim 'S' the identity of the accused is clearly established, as PW7 Victim 'S' has categorically stated in her examination in chief, that she had been watching the complainant, as he had abused her prior to this incident dated 09.12.13 for about one year, whenever he saw her. Therefore there could not be any doubt about the identity of the accused, as this part of the testimony of PW7 that accused had been harassing her for the last more than one year has not been impeached in the cross examination of PW7. In any case, if a person is constantly watching any other person for the last one year the identity of the said person would be clearly fixed in her mind, so as to rule out any error or perception in the testimony on account of the fact that witness had very little time to watch a particular person. In this case the complainant CA No. 18/15 State Vs. Abhimanyu 6 had been watching the accused atleast for the last one year prior to the incident repeatedly, there could not have been any error in her perception regarding the identity of the accused on any account.
9. Regarding the presence of accused at the spot, though in his statement U/s 313 Cr.P.C accused has not taken any defence. However, in the cross examination of PW7 a suggestion had been given to which the victim 'S' denied, that she had bought slippers from the accused two weeks prior to the incident, as he was working as a hawker selling slippers on the footpath in weekly market and she started quarreling with the accused on the point that she was giving him used wearing slippers for change. Therefore by giving this suggestion accused also admits his presence at the spot at the time of incident and also the fact there was a quarrel between the parties.
10. The testimony of PW7 is consistent, logical and trustworthy.
She has categorically stated that on the day of the incident i.e on 09.12.2013 accused who had been regularly abusing her, again started abusing her when she was going to the shopkeeper for buying a feviquick/Elfy and thereafter she CA No. 18/15 State Vs. Abhimanyu 7 started following him with the intention to see where he resided and when he tried to enter into his house she confronted him and asked him why he was harassing her, on this he slapped her 45 times on her face,thereafter with the intention to outrage her modesty, slapped over her breast and thereafter pushed her and ran away from the spot.
11. Thereafter she made inquiries from the persons present there as to the name of accused, his name was revealed as Manu and thereafter she made a call at 100 number and reported the matter to the police. Though no doubt in her examination in chief she stated that the IO arrested the accused at her instance at around 05:30 P.M from Military Road vide arrest memo ExPW4/A and personal search memo ExPW4/B, but in her cross examination she stated that accused was not arrested in her presence. There is a clear cut contradiction in this regard in her testimonial deposition. The IO SI Pawan Kumar has also stated so that the accused was arrested at the instance of the complainant and he has stood so in his cross examination as well. It may be that the IO was trying to give some sort of embellishments to the story of prosecution CA No. 18/15 State Vs. Abhimanyu 8 regarding the manner in which the accused was apprehended, but that in no way whittles down the true nature of testimonial deposition of PW7 the Victim 'S'. It may be that the IO had given the different colour to the manner in which the accused was apprehended, but that in no way impinges upon the manner of the incident.
12. Regarding the manner of incident victim 'S' has categorically stated that it was the accused who had been harassing her for the last more than one year and had also misbehaved with her on the date of incident by abusing her and thereafter she started following him with the intention to see where he resided, when he was trying to enter into his house she confronted him and asked him why he was harassing her, at this he slapped her 45 times on her face and with the intention to insult her modesty he pressed her breast and chest and thereafter pushed her and ran away from the spot.
13. It is not the case of the defence that accused had any previous enmity with the complainant or that she had any false motive to implicate him in this FIR. In any case, even the accused admits that there was some sort of quarrel between CA No. 18/15 State Vs. Abhimanyu 9 him and the complainant, though this version does not find any mention in his statement U/s 313 Cr.P.C. But a suggestion was given in the cross examination of PW7 that a quarrel occurred between the victim and accused, as the accused was street hawker who was selling sleepers on the footpath and complainant started quarreling with the accused, as she was giving him used slippers for change, which the accused refused. This admission even on the part of the accused clearly shows that there was a quarrel between him and the complainant.
14.Though no doubt PW7 has also admitted that when the accused slapped her 1015 public persons gathered at the spot. Merely because out of those 1015 public persons nobody has been examined by the prosecution does not in any way shows that PW7 was not a trustworthy witness, the general apathy of public persons in supporting any party in any incident is well known, especially in this case, as most of the 1015 persons who had gathered around the spot at the time of incident would have been the neighbourers of the accused, so they would been highly wary of taking sides with the CA No. 18/15 State Vs. Abhimanyu 10 complainant, as by doing so, they would have otherwise risked alienating the accused.
15. In any case, if the version of the accused was correct that the incident took place due to the quarrel between him and the complainant for exchange of used pair of slippers which he was not ready to change, then what stopped the accused from presenting his own defence witnesses who supported this version in his defence evidence, no such witness has come forth, as most of the hawkers selling the chappals at the place where he was allegedly selling chappals as per his version would have been his friends or acquaintances, they would have surely come to the court to present the correct facts about the incident in order to save the accused.
16.Similarly if the Victim 'S' was telling a lie, then as stated by her 1015 public persons had gathered around the spot near the house of the complainant, then that too should have suited the complainant, as most of the persons living in the vicinity of his house would be his neighbourers and friends, they would definitely come forward to dispel the story of prosecution/victim and would have presented the true nature of incident before CA No. 18/15 State Vs. Abhimanyu 11 this court, they would have deposed in favour of the accused that no such incident as deposed by the victim ever happened. This would have clearly repelled the testimony of Victim 'S'.
17.In these circumstances, the testimony of PW7 is found to be trustworthy and believable on the scales, where the probability of happening any event is assessed or measured, it is touching the point of near certainty. The rule of corroboration has only been followed as the rule of prudence, it is generally employed in such cases, where the testimony of a single witness is shaky and is not reliable, then rule of prudence says that if two persons have witnessed a similar incident from near identical position, if both of them are deposing about the same incident in the same way, then the chances of error in the testimony of one witness which may arise due to errors of perception, recollection, later on narration in the court, objectivity or bias could be ruled out.
18. In the present case there was no need to look for any corroboration, as the testimony of PW7 was itself trustworthy and there is no reason, why would she falsely implicate the accused in this case on account of previous enmity, as none CA No. 18/15 State Vs. Abhimanyu 12 has been alleged or proved.
19. Regarding the minor contradictions appearing in the testimony of PW7 same are bound to occur in the testimony of any witness, as the witness is not expected to remember all the vivid details exactly in the similar manner in which he had witnessed the incident, as due to lapse of time and due to lag between the perception, recollection and later on narration about the incident in the court, some minor facts would be glossed ever, but in the present case main facts as given by the complainant are the same which she had given to the police at the time of incident, her testimony in this regard is cogent, consistent and trustworthy and the minor contradictions does not in any way impinge upon her credibility as a whole.
20. Regarding the offence(s) U/s 354D IPC same would not be made out from the facts of the present case, as the complainant has only stated in her examination in chief that the accused abused her prior to the incident from previous one year, whenever he saw her, but she has nowhere stated in her examination in chief that the accused had been regularly CA No. 18/15 State Vs. Abhimanyu 13 following her and was contacting her repeatedly despite the clear indication of disinterest by her. Though she may have stated so in her complaint made to the police ExPW6/A and in her statement recorded before Ld. MM U/s 164 Cr.PC Ex PW5/D, but both of them are not substantive evidence perse, such previous statement(s) can only be used for the purpose of contradicting the said witnesses U/s 145 Evidence Act and for no other purpose. Therefore she should have been stated something about the stalking part in her examination in chief which is conspicuously missing. The reading of Section 354 D of IPC shows that there should be a pattern, whereby a person follows women and contacts her repeatedly despite clear indication of disinterest by the such women, that is not made out from the testimony of PW7.
21. Regarding Section 509 IPC, though PW7 has stated that on 09.12.2013 at about 04:30 P.M when the accused passed by her he started abusing her on seeing her in a filthy language, but Section 509 IPC would not be attracted in the present case, as she has not stated that at that time the said words were uttered by the accused with the intention to insult her CA No. 18/15 State Vs. Abhimanyu 14 modesty, or that such words should be heard or to be seen by her. Though later on he indeed outraged her modesty, when she followed her and confronted him when he was trying to enter into his house.
22.The incident in question can be dissected into two parts, one part, where he simply abused her on seeing her and second part when he slapped her after she confronted him and also outraged her modesty. Section 509 IPC is missing from the first part as the exact words uttered by her have not been clarified in her statement from which it could be discerned that such words were uttered by the accused with the intention to insult modesty of the victim. Consequently Section 509 is also not been made out in the present case.
23. Regarding Section 323 IPC the complainant has categorically stated that the accused had given 45 slaps on her face and in her MLC ExPW3/A the opinion had been given by the doctor as 'simple blunt'. The said MLC has been proved by PW3 Dr. Ajeet Singh, Sr Resident Lady Harding Medical College as Ex PW3/A and there is no cross examination of said doctor by Ld. Defence counsel. In the MLC on examination of victim there is CA No. 18/15 State Vs. Abhimanyu 15 a indication 'redness on B/L'(not legible). No cross examination of the said doctor has been carried out by Ld. Defence counsel. From the aforesaid noting made by the doctor, it appears that there was redness on the face i.e both the cheeks of the victim which could have only been caused by the slaps. This part of the testimony is corroborated by the medical opinion as well, which defence has allowed to go unimpeached.
24.From the above discussion, Section 354 IPC is clearly made out in the present case, as the prosecution has been able to establish that accused assaulted and used criminal force upon the victim 'S' by intending to outrage her modesty. The said culpable intention of the accused is clearly evident from the overall facts and circumstances of the present case, as firstly very act of abusing the victim, thereafter slapping her on face and later on her breast and thereafter pushing her and running away would clearly make out a case U/s 354 IPC.
25. The net result of the aforesaid discussion is that the judgment of acquittal dated 31.08.2015 passed by Ld. Trial court cannot be legally sustained in view of the overwhelming CA No. 18/15 State Vs. Abhimanyu 16 evidence lead by the prosecution on the record. As a consequence judgment of Ld. Trial Court dated 31.08.2015 is set aside. Resultantly accused stands convicted U/s 354/323 IPC.
26.Put up for hearing on the point of sentence on 21.03.2016.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 17.03.2016 Special Judge,
CBI03 (PC Act)
Delhi/17.03.2016
CA No. 18/15
State Vs. Abhimanyu
17
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE CBI03 (PC ACT) DELHI CA No.18/15 FIR No.: 327/13 State P.S: Prasad Nagar Govt. of NCT of Delhi u/S: 323/354 IPC Through Public Prosecutor, Central District .....Appellant Versus Sh. Abhimanyu H. no. 16/648H,Bapa Nagar, Karol Bagh, Delhi ..... Respondent/ Convict ORDER ON SENTENCE:
1. Vide order dated 17.03.2016, accused/respondent Abhimanyu was convicted u/S 354/323 IPC.
2. I have heard Sh.G.S.Guraya, Ld.Addl.PP for the State (Appellant) and Sh.Atul Kumar Gupta, Ld. counsel for the respondent (convict) on the point of sentence.
3. Ld.APP for the State Sh.G.S.Guraya has argued that severe punishment could be granted to the convict, who was involved in outraging the modesty of a young girl and who had even the audacity to slap her when she resisted his misadventure, so that a strong message could go into the CA No. 18/15 State Vs. Abhimanyu 18 society.
4. Ld. counsel for the respondent (convict) submits that lenient punishment should be awarded to the convict, as he is a daily wager, earning his living out of selling chappals (slippers) in the weekly markets, there is no other bread earner in his family. It is also submitted that at the time of incident he was only 20 years of age, he has also moved an application for releasing the convict on probation u/s 360 Cr.P.C and Sec. 4 & 5 of Probation of Offenders Act, 1958.
5. I have gone through the rival contentions. In the present case, the convict had assaulted the victim S and had also outraged her modesty, when she questioned him as to why he was following her on daily basis. No ground for probation is made out in the present case, as Section 354 IPC was amended by Act no.13 of 2013 (w.r.e.f 03.02.2013) to curb this menace, as the Crimes against the women were increasing on daily basis without any fear in the minds of the persons perpetuating the said crimes. However, considering the fact that convict was only 20 years of age at the time of incident, also considering the fact that the convict is the only bread CA No. 18/15 State Vs. Abhimanyu 19 earner of family, who is earning his livelihood as a daily wager, selling goods in the weekly markets, therefore interest of justice would be met if the convict is sentenced to rigorous imprisonment for 1 year u/S 354 IPC and also fine of Rs. 1000/, in default of payment of fine, SI for 2 months. The convict is also sentenced to rigorous imprisonment of 4 months u/S 323 IPC and fine of Rs.500/, in default SI for one month. Both the sentences shall run concurrently. The nominal rolls of the convict have been called from the Superintendent Jail, as per which the convict has already spent 8 days in Judicial Custody during the trial/investigation(s) and also from 17.03.2016 till today, the convict shall no doubt will be entitled to the benefit of Sec.428 Cr.P.C of the period already undergone as stated above.
6. Copy of the sentence and order be given to the convict free of cost. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 21.03.2016 Special Judge,
CBI03 (PC Act)
Delhi/21.03.2016
CA No. 18/15
State Vs. Abhimanyu