Delhi District Court
Smt Seema Kapoor vs Govt Of Nct Of Delhi on 7 June, 2024
IN THE COURT OF PRINCIPAL DISTRICT & SESSIONS JUDGE :
WEST DISTRICT : TIS HAZARI COURTS : DELHI
Criminal Appeal No. 35/2022
CNR No. DLWT01-000965-2022
Seema Kapoor
W/o. Late Sh. Ashok Kapoor
R/o. A-46, Rajouri Garden
New Delhi-110027. ......... Appellant
Versus
1. Govt. of NCT, Delhi.
2. Mukesh Gulati
S/o. Late Sh. Krishan Gulati
3. Mitu Gulati
W/o. Late Sh. Shyam Sunder Gulati
4. Manju Gulati
W/o. Sh. Mukesh Gulati
Respondents No. 2 to 4 are
R/o. H. No. 6/53, Subhash Nagar
New Delhi. ....... Respondents
Date of filing of appeal : 03.02.2022
Date of hearing arguments : 04.06.2024
Date of judgment : 07.06.2024
JUDGMENT
1. This is a Criminal Appeal under Section 378 of the Code of Criminal Procedure, 1973 filed by complainant challenging judgment dated 23.12.2021 passed by the Court of Ld. Metropolitan Magistrate (Mahila Court-02) (West), Tis Hazari CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 1 of 8 Courts, Delhi against the acquittal of the accused persons / respondents No. 2 to 4 in FIR No. 1216/2015 PS Hari Nagar titled as 'State vs. Mukesh Gulati & Ors.' under Section 354B/323/509/34 IPC. Since the State did not file appeal against the impugned judgment, the complainant / victim has filed this appeal and has impleaded State as respondent No.1 and the accused persons as respondents No. 2 to 4.
2. Notice of the appeal was served upon the respondents who put in appearance and contested the present appeal.
3. Trial Court Record was summoned and arguments were heard.
4. Briefly stated, the case of the prosecution is that accused / respondent No.3 Mitu Gulati had adopted the son of the complainant / appellant. Said child, namely Vaibhav Kapoor, was brought up by respondent No. 3 Smt. Mitu Gulati and now, he is adult. After giving him in adoption, appellant, the biological mother, changed her mind and made efforts to take back her son. For this purpose, she tried to meet him. On 13.08.2015 when appellant / complainant went to meet Vaibhav Kapoor at Tagore School, the accused persons / respondents No. 2 to 4 were waiting there for her on two scooters, the accused persons gave her beatings, twisted her arms and pushed her due to which she fell on the road. They tore her clothes with the intention to sexually harass her. It is further the case of the CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 2 of 8 prosecution that accused Mukesh Gulati abused the complainant (appellant herein) with an intention to insult her. Complainant made a complaint in PS Hari Nagar and FIR No. 1216/2015 was lodged. Her statement under Section 164 Cr.P.C. was recorded. After completion of investigation, charge sheet was filed in the Court. After hearing arguments, charge under Section 354B/34 IPC and 323/34 IPC were framed, to which, respondents No. 2 to 4 pleaded not guilty and claimed trial.
5. During the course of trial, prosecution examined PW-1 ASI Vijay Kumar, who proved FIR. PW-2 is the complainant S. K. PW-3 ASI Ram Pal, who recorded statement Ex. PW-2/A of the complainant and got her medically examined vide MLC Ex. PW- 3/A. PW-4 Head Constable Pardeep, who proved Kalandra dated 14.07.2016 Ex. PW-4/A. PW-5 Dr. Alice L. Thiek, who proved MLC of complainant which is Ex. PW-3/A. PW-6 Lady Constable Sudesh, who reached alongwith Head Constable Ram Pal at the spot where they met the complainant and then, they took the complainant to the hospital for her medical examination. PW-7 ASI Banwari Lal is the Investigating Officer of the case. Thereafter, prosecution evidence was closed.
6. Statements of accused persons under Section 313 Cr.P.C.
was recorded and they denied all the allegations. They examined three official witnesses in their defence. DW-1 Maninder Pal Singh, JJA, Record Room (Sessions), THC, Delhi produced the record of RCA No. 429/2016 titled as 'Seema Kapoor vs. Mitu CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 3 of 8 Gulati' decided on 01.07.2017 passed by Ld. Addl. Senior Civil Judge (West), THC, Delhi. Certified copy of the order dated 01.07.2017 is Ex. DW-1/A. DW-2 Mukesh Kumar, JA, Record Room (Civil), THC, Delhi brought the record of Civil Suit No. 8349/2016 titled as 'Seema Kapoor vs. Mitu Gulati & Ors.' decided on 16.08.2016 by the Court of Ld. Civil Judge-03 (West), THC, Delhi. Certified copy of the order dated 16.08.2016 is proved as Ex. DW-2/A. DW-3 Neeraj Kumar Chaudhary, JJA, Record Room (Sessions), THC, Delhi produced the record of Guardianship Petition No. 33/2007 titled as 'Seema Kapoor vs. Mitu Gulati & Ors.' decided on 21.01.2008 by the Guardianship Judge, Delhi. Certified copy of the said order is Ex. DW-3/A.
7. After hearing parties, Ld. Metropolitan Magistrate vide impugned judgment acquitted the respondents No. 2 to 4 herein. Perusal of the impugned judgment shows that Ld. Metropolitan Magistrate noted discrepancies in the statement of complainant (appellant herein) as PW2 and his statement under Section 164 Cr.P.C. Ex.PW2/B and his complaint Ex.PW2/A.
8. Ld. Counsel for appellant argued that the contradictions in the statements are very minor and are natural outcome of delay in recording statement before the Court. Ld. Counsel for appellant has referred to Birbal Nath Vs. The State of Rajasthan & Ors., MANU/SC/1195/2023 decided on 30.10.2023 and Rammi & Ors. Vs. State of Madhya Pradesh, MANU/SC/0596/1999 decided on 21.09.1999, in which, it was CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 4 of 8 held that minor discrepancies may not necessarily amount to contradictions. Further, it is argued that even if these are contradictions, such contradictions arise naturally due to various reasons. It is argued that the Court should have seen as to whether these contradictions go to the root of the case to such an extent that same shake the very foundation of the case. It is argued that the contradictions are very minor and the Trial Court has erred in acquitting the accused persons on the basis of these contradictions.
9. I have considered the rival submissions. Perusal of testimony of appellant (PW-2) reveals that first incident is dated 12.08.2015. As per testimony of PW-2, respondent no.3 herein had hit the appellant with iron Chimta on her legs and injury marks of the same are still present. Second incident is dated 13.08.2015. As per PW-2, she went to Tagore School to meet her son Vaibhav Kapoor, there accused Mukesh Gulati (respondent no.2), Mitu Gulati (respondent no.3) and Manju Gulati (respondent no.4) were keeping an eye upon her. Respondent No.3 Mitu Gulati came near her and slapped on her face due to which she fell down on road. Thereafter, accused Mukesh Gulati and Manju Gulati tore her clothes and thereafter they fled from the spot. It is pertinent to note that she lodged her FIR on 18.08.2015 i.e. after about six days from the incident. In the entire evidence, it is nowhere explained by appellant herein as to why she did not go to police immediately after the incident especially when she had already been attacked a day before i.e. CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 5 of 8 on 12.08.2015. At least, she could have called the police at 100 number on 12.08.2015 and 13.08.2015.
10. Now I would like to refer to the MLC Ex.PW3/A of the appellant proved by PW-5 Dr. Alice. This MLC is dated 18.08.2015 with history of alleged assault by some persons on 13.08.2015 near Tagore School and on 12.08.2015 near Cambridge Foundation School. The injuries mentioned in it is one dark purple blues over left upper arm and left fore arm. Further, it mentions old multiple abrasions with scar formation over right fore arm and left knee. But nowhere it is mentioned as to why there was so much delay in reporting the case to police. Even in his complaint Ex.PW2/A made to the police and in statement under Section 164 Cr.P.C. Ex.PW2/B, the cause of delay has not been explained. Appellant was examined as PW-2 before the Trial Court but the entire examination does not throw any light on the circumstances which led to six days delay in reporting the matter to police. No explanation has been given as to why she did not make a call at 100 number immediately after the incident.
11. The issue of delay is important in the present case because the appellant is quite emotional and insistent about taking back her biological son. It is necessary to mention here that appellant had given her son namely Vaibhav Kapoor in adoption to Smt. Mitu Gulati (respondent No.3 herein). When child grew up, the appellant tried to take back her son and this is CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 6 of 8 the reason that she went to meet her son on 12.08.2015 when first incident took place and on 13.08.2015 when second incident allegedly took place. When the appellant is so agitated, it is highly improbable that on being beaten, she would not call police immediately at 100 number or would not reach to police station. One can understand that she could have ignored the first incident of 12.08.2015 but if similar incident takes place on very next day i.e. 13.08.2015, it is not understandable as to why she will not approach police soon after the incident.
12. In this background, the contradictions with previous statements assume great importance. When the emotions of appellant-complainant (PW-2) are so heighten, the possibility of one or more of the accused persons being falsely implicated cannot be ruled out. Since appellant is only witness to the incident, the Court has to be very careful to rule out the possibility of false implication. It must be kept in mind that six days delay is enough for a person to weave a story, which may be altogether false or partly true and partly false. In such situation, unless there is corroboration, it would be highly unsafe to rely upon the testimony of such a witness. Unfortunately, no corroboration is coming forth from any quarter. Infact, the complainant had even refused to give her torn clothes to the Investigating Officer (PW-7 ASI Banwari Lal), who has specifically confronted that he did not seize the torn clothes of the complainant because she did not give the same despite asking. Further, PW-7 ASI Banwari Lal testified in cross-
CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 7 of 8examination that there was CCTV camera installed outside the school where incident took place. Therefore, no additional evidence is coming forth against the accused persons.
13. Accordingly recording a guilty verdict in the present case would be highly unsafe proposition. In these circumstances, I find no infirmity in the impugned judgment and I hold that Ld. Metropolitan Magistrate has rightly given benefit of doubt to the accused persons and acquitted them. Consequently, the appeal is dismissed.
14. Copy of judgment along with the Trial Court Record be returned to the Trial Court.
15. Appeal file be consigned to Record Room.
Announced in the open Court on 7th June, 2024 ( VINOD KUMAR ) Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi CA No.35/2022 Seema Kapoor vs. Govt. of NCT, Delhi & Ors. Page 8 of 8