Delhi District Court
Sh. Akbar Malik vs State (Govt. Of Nct Of Delhi) on 14 December, 2017
Criminal Appeal No.79/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 79/2017
Under Section : 354D/509 IPC
Police Station : Yamuna Depot Metro
FIR No. : 49/2013
CNR No. : DLET01-006094-2017
In the matter of :-
SH. AKBAR MALIK
S/o. Sh. Akhtar Malik,
R/o. A-145/61, 1st Floor, Gali No.1,
Krishna Puri, Shiv Mandir Marg,
Mandawali, Delhi.
............APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI)
.........RESPONDENT
Date of Institution : 16.05.2017
Date of Receiving : 17.05.2017
Date of reserving judgment : 28.11.2017
Date of pronouncement : 14.12.2017
Decision : Appeal is allowed.
JUDGMENT
1. This is an appeal directed against the judgment of conviction dated 22.04.2017 and order on sentence dated 29.04.2017, passed by trial court in a case titled as State v. Akbar Malik, bearing FIR No. 49/2013, under Section 354D/509 IPC, PS Yamuna Depot Metro. Vide impugned judgment of conviction dated 22.04.2017, trial court convicted accused Akbar Malik (appellant herein) for offence punishable under Section 354D IPC. Vide impugned order on sentence dated 29.04.2017, ld. trial court sentenced convict Akbar Page 1 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 Malik to undergo simple imprisonment for a period of six months for offence punishable under Section 354D IPC and to deposit fine of Rs.10,000/- payable to complainant/prosecutrix as compensation. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, FIR was registered in this case on the complaint of Ms. 'M' i.e. PW1. In her complaint Ex.PW1/A, Ms. 'M' alleged that she was working in an office in Mandawali and for last four months appellant was following her. Many times he had stared at her. On the date of incident i.e. 10.11.2013 at about 02:00 PM, she was going to Nirman Vihar Metro Station on a rickshaw from her office. Appellant used to follow her on a scooty. When she was waiting for metro on platform no.2, appellant came there and while facing the complainant he clicked her photograph in his mobile phone. When complainant asked for his phone, he did not hand it over, rather he went to a side and deleted the photo. Thereafter, complainant asked his to come to police and appellant started fleeing away. However, through staff of Metro Station complainant got him apprehended. Complainant used to receive messages from two unknown numbers (numbers were mentioned in the complaint) and she raised suspicion that appellant along with his friend was instrumental in sending SMS to her.
3. After conclusion of investigation, chargesheet was filed in the court and charges were framed against appellant on 02.12.2015 for offence under Section 354D IPC. Prosecution examined three witnesses. Accused was examined under Section 313 Cr.P.C wherein he pleaded innocence and denied correctness of the prosecution evidence. Appellant did not lead any defence evidence. He was, thereafter, convicted and sentenced vide impugned judgment and order.Page 2 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 GROUNDS : -
4. Being aggrieved of the impugned judgment of conviction and order on sentence, appellant Akbar Malik preferred this appeal on the following relevant grounds :-
● That the trial court committed serious illegality in holding that prosecution has been able to prove its case against the appellant under Section 354D IPC, while in fact there were no convincing and reliable evidence on record to come to such findings and judgment is liable to be set aside on this score.
● That the trial court committed serious illegality in ignoring the fact that there was no independent corroboration to the testimony of alleged complainant. The incident is alleged to have taken place at one of the busiest Nirman Vihar, Metro Station, Delhi on 10.11.2013 at 02:00 PM, when there is always considerable crowd at Metro Station. That very strangely, no independent person had witnessed the alleged incident. No independent public person was examined or cited as witness in the above noted case, which creates grave doubt in prosecution version.
● That the trial court committed serious illegality in placing reliance upon unnatural and unbelievable version of complainant that accused was following her at Metro Station, Nirman Vihar, Delhi and accused was clicking his mobile phone to take her photograph and on her protest, accused deleted the photo. Same are totally false and concocted story. No such incident ever took place and appellant had not taken any photo of complainant from his mobile phone. That the case of appellant from very beginning was that he had not taken any photo of complainant from his mobile phone. On one hand it was alleged that mobile phone of Page 3 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 appellant was taken and checked, which did not contain any photo of complainant, but at the same time it was alleged by the prosecution that on protest of complainant, accused had deleted her photo. The investigation agency was bound to seize the camera and send the same to CFSL to obtain report whether mobile phone and memory card of mobile phone of appellant, contained photographs of complainant. It had been admitted by the witnesses that police officials after checking the mobile phone of appellant, did not seize the same and returned it to the appellant, which clearly shows that the mobile phone was not used by appellant for taking photos of victim/ complainant and the only conclusion which could be safely reached that no such photos were taken by the appellant.
● That the trial court committed serious illegality in ignoring material improvement made by complainant in her version in court from FIR. Complainant did not make any allegation of hearing voice of clicking of photograph and did not allege of appellant being apprehended by Metro Staff/ CISF officials personnel in FIR. ● That there is no justification on the part of investigating agency in not sending mobile phone of appellant to CFSL. That as such, the non seizure of mobile phone of petitioner clearly shows that he had never attempted to take photograph of alleged complainant from his mobile phone.
● That the trial court committed serious illegality in ignoring the fact that investigating agency did not collect and produce CCTV footage recording of CCTV cameras installed at the spot. That the trial court failed to appreciate that prosecution withheld material evidence i.e. CCTV Camera Footage from the scrutiny of the court Page 4 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 and as such the adverse inference has to be drawn against the prosecution with regard to non-production of CCTV Camera Footage of place of incident.
● That prosecution could not prove presence of appellant at Metro Station at the time of alleged incidence, as such, there is no question of appellant committing alleged offence. ● That prosecution did not produce any security guard, who had allegedly apprehended accused on the platform while attempting to run away.
● That the trial court committed serious illegality in holding that appellant had been stalking the complainant. That it is pertinent to mention here that PW1/complainant herself admitted that she could not tell any specific date, month or year, when appellant followed her and admitted that appellant never passed any comments to her nor stopped her on way at any time. ● That the trial court committed serious illegality in placing reliance upon testimony of PW2/ Jayant Kumar to come to findings regarding arrest of appellant from Metro Station. ● That as per PW1/complainant no writing work was done at Metro Station, while as per PW3/ASI Hari Om, IO had prepared site plan at the instance of complainant at the spot. PW1 categorically stated that she had not shown the place of incident to police as the police had not asked the same from her. Moreover, the alleged site plan Ex.PW3/B had not been signed by the complainant, which further creates doubt with regard to preparation of site plan. It clearly shows that the site plan Ex.PW3/B was prepared by IO on his own. While as per PW2/Jayant Kumar, police had taken mobile phone of accused, but on other hand, PW3/ASI Hari Om Page 5 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 deposed that mobile phone of accused was not seized by him. ● That impugned judgment of conviction is self contradictory. That on one hand ld. trial court relied upon testimony of PW3/ASI Hari Om, but at the same time condemned him for not properly investigating the matter.
● That the seizure of scooty from Metro Parking is itself highly doubtful. If appellant had come to Metro Station or had parked the scooty in parking, the same must have been seized on the date of incident i.e. 10.11.2013. That it is pertinent to mention here that seizure of scooty has been shown on 11.11.2013 which further creates doubt in prosecution case.
● That the sentence awarded by the trial court is very harsh and excessive. That the trial court failed to appreciate that appellant had clean antecedents and is working as helper at Scrap Shop, Ganesh Nagar, Delhi. That the trial court failed to appreciate that appellant is a young man of 28 years having liability of looking after his wife and two children. That appellant is sole bread earner of his family and till date he has never been involved in any case. In case the appellant is sent to custodial punishment, his entire family would face starvation.
ARGUMENTS :-
5. Ld. counsel for appellant argued on the lines of grounds taken in the appeal and submitted that police neither seized CCTV footage nor mobile phone of the appellant. Thus, there is no evidence to say that any photograph was taken by the appellant or that appellant was present inside the metro station. He further submitted that IO even did not find any metro card or token from the appellant, though, he was shown to be arrested and taken away from metro station. IO also Page 6 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 did not seize keys of scooty or any parking slip from the appellant, though scooty was alleged to be parked in Nirman Vihar Metro Station. In such situation at least keys of the scooty would have been found in possession of the appellant. He further submitted that trial court on one hand condemned IO for lacunae in the investigation and on the other hand she relied upon his testimony and convicted the appellant. He further submitted that version of complainant/PW1 is not supported with any other corroborative evidence, though, corroborative evidence was available for the investigating agency. He further submitted that appellant is not a previous convict and has two minor children to support. Therefore, he should have been given a chance to reform himself.
6. Per contra, ld. Addl. PP for the State submitted that testimony of PW1 and PW2 are consistent. Testimony of PW2 corroborated the version of PW1 and testimony of PW1 is sufficient to convict the appellant.
Therefore, there is no infirmity in the impugned judgment or sentence.
APPRECIATION OF EVIDENCE AND ARGUMENTS AS WELL AS FINDINGS :-
7. I deem it fit to start with the required ingredients of alleged offence under Section 354D IPC, so as to evaluate the evidence on the parameters of these ingredients. The relevant required ingredient as per Section 354D IPC is explained in following manner "any man, who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman.......... commits the offence of stalking."
8. In the present case, as per testimony of PW1, before incident in Page 7 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 question she had seen appellant near her office at Mandawali.
Appellant used to roam around her office on his white scooty. Appellant had neither passed any comment to her nor had stopped her way. Complainant had not made any complaint prior to incident in question.
9. So much of statement had come in her cross-examination. In the examination-in-chief, complainant talked about incident in question only. Neither prosecutor asked her about past incidents of stalking nor she gave any details of the same, though it was alleged in the charge that on 10.11.2013 appellant followed the complainant to foster personal interaction and prior to said date he used to follow her repeatedly to foster personal interaction despite 'clear indication of disinterest' by complainant.
10.Ld. MM in the impugned judgment discussed the evidence after segregating the ingredients of alleged offence in three parts. The first part was that 'any man who follows a woman', second part was that 'contacts or attempts to contact such woman to foster personal interaction' and third part was that 'despite a clear cut indication of disinterest by such woman.' Though ld. MM has analysed the evidence in respect of first two parts in very lucid manner, however, I find that one another factor which should have been part of second part, was omitted to be considered by ld. MM. This important factor was 'repeated' attempt to contact the woman. This term becomes important in view of the last part of the ingredients i.e. 'a clear indication of disinterest by such woman.'
11.The law requires that if a person continues to follow a woman and contacts her or attempts to contact her, to foster personal interaction despite 'clear indication of disinterest' shown by that woman, he Page 8 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 commit this offence. The 'clear indication of disinterest' by such woman, he commit this offence forms integral part of this offence. The addition of word 'clear indication' signifies the precaution taken by legislature so as to emphasis that the appellant must have received such indication of disinterest, before he continued to follow and try to contact that woman. In other words, if after having received an indication of disinterest by the woman, a man stops following her so as to contact her to foster personal interaction, then such offence would not be committed.
12.While dealing with the aspect of 'clear indication of disinterest by such woman', ld. MM relied upon the testimony of PW1, which related to demand by PW1 from the appellant to show his phone and omission on the part of appellant to show the phone and thereafter allegations of deleting the photo and fleeing away from the platform. ld. MM further discussed evidence of PW1 related to checking of mobile phone by security personnel, but not finding any photograph and thereafter, checking of CCTV footage of platform. In my opinion, such evidence has no relation with this part of ingredient under consideration. The indication of disinterest by PW1 could not be in the form of demanding mobile phone to verify if her photograph was taken, for the purpose of this case. Such fact could have been indication of disinterest only if subsequent to incident dated 10.11.2013, appellant would have followed and tried to contact PW1. To invoke Section 354D IPC against appellant on the basis of incident dated 10.11.2013, it was required to be proved that prior to 10.11.2013 complainant had indicated her disinterest towards the appellant, in unambiguous manner, which could be conveyed to the appellant in any form. Ld. MM observed that interaction and Page 9 of 10 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.79/2017 disinterest must be given wide amplitude and interaction and disinterest need not be verbal only. It can be by way of action or reaction. I find no problem with such observation of ld. MM. However, indication of disinterest must be shown to the appellant before it is alleged that despite having received such indication, appellant continued following the complainant so as to contact her. However, complainant/PW1 herself deposed that appellant had not stopped her or passed any comment to her, prior to incident dated 10.11.2013, when he took her photograph on platform and she did not make any complaint. Testimony of PW1 is absolutely silent in respect of any indication of disinterest if shown by her to appellant, prior to 10.11.2013, in any form.
13.In these circumstances, I find that evidence in respect of an important aspect of Section 354D IPC is missing in this case and for such reason itself, conviction of appellant for offence punishable under Section 354D IPC cannot be sustained.
14.In view of my foregoing discussions and findings, appeal is allowed and impugned judgment of conviction dated 22.04.2017 and order on sentence dated 29.04.2017 are set aside. Appellant is acquitted of the charges.
15.TCR along with copy of judgment be sent back to the trial court. File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2017.12.14
17:27:49 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 14.12.2017 Special Judge (PC Act) CBI, East
(This order contains 10 pages) Karkardooma Courts, Delhi
Page 10 of 10 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi