Delhi District Court
Chhote vs The State (Govt. Of Nct Of Delhi) on 14 September, 2021
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-5, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 493 of 2017
CNR NO. DLSE01-009429-2017
IN THE MATTER OF:
Chhote
S/o Sh. Labhi
R/o Village Akbarpur, Damodar,
PS Samashabad, District Farrukhabad,
Uttar Pradash.
.......Appellant
Versus
The State (Govt. of NCT of Delhi)
........Respondent
Instituted on : 16.12.2017
Reserved on : 13.09.2021
Pronounced on : 14.09.2021
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 26.09.2017 and order on sentence dated 15.11.2017, passed by the learned Metropolitan Magistrate, South- East District, Saket Courts, New Delhi in First Information Report (FIR) No.273/2012, Police Station Pul Prahladpur, under Section 354 CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 1 of 12 Digitally signed by ANUJ AGRAWAL ANUJ Date: AGRAWAL 2021.09.14 11:39:22 +0530 IPC, titled as 'State vs. Chhote', whereby appellant was convicted for offence under section 354 IPC. Further, vide order on sentence dated 15.11.2017, the appellant was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/- to the State.
2. Succinctly stated, on 18.09.2012, on receipt of DD No. 11A, investigating officer SI Kishore Kumar alongwith Ct. Ramanand reached at the spot (particulars not being mentioned as the offence is under section 354 IPC) falling within the jurisdiction of PS Pul Prahlad Pur, wherein the mother of minor victim complained that at about 1.00 pm, the appellant came at her house for selling 'kajal', on refusal of complainant to buy the same, he sat on a cot in her house. The daughter of complainant aged one year was playing there. The complainant got busy in washing clothes, when she heard noise of her daughter and saw that appellant had made her daughter to sit in his lap. As per complainant, appellant had taken off the underwear of minor girl and was touching her private parts (genitals). On these allegations, FIR was registered, the appellant was arrested at the spot and the investigation was carried out.
3. After conclusion of investigation, chargesheet was filed against the appellant and after completion of necessary formalities, a formal charge for commission of offence under Section 354 IPC was framed against him, to which he pleaded not guilty and claimed trial.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:39:32
+0530
4. Prosecution to prove its case examined 05 witnesses before Ld. Trial Court. PW1 Ct. Ramanand is a witness to the investigation. PW2 HC Sunder Singh is the duty officer who proved FIR Ex. PW2/B and his endorsement of rukka Ex. PW-2/A. PW3 Prashant is the star witness of prosecution and his testimony shall be discussed in detail at later part of this judgment. PW4 Smt. Sunita is the mother of PW3. PW5 SI Kishore Kumar is the investigating officer and he deposed about the investigation conducted by him.
5. PW1 Ct. Ramanand deposed that on 18.09.2012, he went to spot with IO where they met the complainant and public witnesses who produced accused before IO. He further deposed that IO recorded statement of complainant, prepared rukka and handed over rukka to him for registration of FIR. He deposed that he took the rukka to police station and returned to the spot with copy of FIR and tehrir. He proved arrest memo Ex. PW-1/A, personal search memo Ex. PW-1/B and deposed that statements of public witnesses were recorded by IO in his presence. The witness was duly cross-examined by Ld. defence counsel.
6. PW2 HC Sunder Singh deposed that while working as duty officer, he has registered FIR Ex. PW-2/B and made endorsement on rukka Ex. PW-2/A.
7. PW3 Mr. Prashant is one of the eyewitnesses who CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 3 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.09.14 11:39:41 +0530 deposed that the complainant was residing in front of his house, that on 18.09.2012 at about 1.00 pm, he and his mother were standing at the balcony of their house and saw appellant sitting on a cot outside the complainant's room, that appellant made her daughter sit on his lap and he took off her underwear, that he was touching her private parts, that he went to the spot, that in the meantime, complainant also came and snatched her daughter from appellant, that she raised alarms and neighbourers gathered at the spot, that someone called police and thereafter police came at spot, that police inquired from him and also recorded his statement. He correctly identified the accused.
7(a). During his cross examination by Ld. Defence counsel, he deposed that he has no relation with complainant. He further deposed that he does not know the appellant and saw him for the first time on the date of incident.
8. PW4 Smt. Sunita deposed that on 18.09.2012, she saw her son Prashant running downwards and she also came with him and saw a crowd gathered at the spot. On being cross-examined by Ld. APP for the state with permission of the court, she admitted it to be correct that the child of complainant was nude and public persons were beating the appellant. She however denied the suggestion of Ld. Addl. PP that complainant had taken her child from clutches of appellant. She failed to identify the appellant.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:39:51
+0530
9. PW5 Inspector Kishore Kumar is the investigating officer who deposed about the investigation conducted by him. He deposed that on receipt of DD No. 11A, he reached the spot with Ct. Ramanand, where complainant produced the accused and narrated the entire incident. He further deposed that he recorded statement of complainant Ex. PW-5/A, prepared rukka Ex. PW-5/B, prepared site plan Ex. PW-5/C at the instance of complainant, arrested appellant/accused vide memo Ex. PW-1/A, took his personal search vide memo Ex. PW-1/B and released the accused on bail at the spot itself. After recording the statements of witnesses, he filed the chargesheet in the present case. He was duly cross-examined by Ld. defence counsel.
10. It is relevant to mention here that despite efforts, the complainant could not be examined before Ld. Trial Court as she was not traceable.
11. After, conclusion of prosecution evidence, statement of appellant was recorded U/s 313 Cr. P.C, wherein all the incriminating evidence was put to him. Appellant denied the same as incorrect and claimed to be falsely implicated. Appellant did not lead any evidence in his favour.
12. Ld. Trial Court vide impugned judgment convicted the appellant for offence u/s 354 IPC, while relying upon the testimony of CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 5 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.09.14 11:40:02 +0530 PW3, having been corroborated by other prosecution witnesses.
13. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on the following grounds:-
(i) That the non-examination of complainant is fatal to the prosecution;
(ii) That the statement of PW3 is vague, whereas PW4 did not support the prosecution version;
(iii) That there are material contradictions in the testimony of prosecution witnesses;
(iv) That benefit of doubt always goes in favour of accused as until the contrary is proved beyond any reasonable doubt.
14. Ld. Defence counsel has argued on the lines of grounds taken in instant appeal and seeks acquittal on the strength of said arguments.
15. Per contra, Learned Addl. Public Prosecutor for State/respondent has opposed the appeal, stating that prosecution has proved its case against the appellant beyond all reasonable doubts and learned Trial Court has rightly convicted and sentenced him.
16. I have heard rival contentions and perused the record.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:40:11
+0530
17. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
18. In the instant case, PW3 Prashant is the star witness of the prosecution and whole case depends upon his testimony. Perusal of his testimony reveals that he has gone whole hog with the prosecution version. In his testimony, he has categorically deposed about appellant making the minor victim sit on his lap, removing her underwear and touching her private parts. It is evident that said witness has painstakingly narrated the entire incident in a consistent manner. He had correctly identified the appellant in the witness box.
19. PW3 faced grueling cross-examination but defence could not elucidate anything to discredit him. His testimony is absolutely trustworthy, unblemished and of sterling quality. He has withstood rigors of cross-examination without being shaken and therefore his testimony was rightly relied upon by Ld. Trial Court. In the facts and circumstances of the present case, the presence of PW3 at the spot cannot be doubted.
20. At the cost of repetition, relevant it would be to mention CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 7 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.09.14 11:40:20 +0530 here that the accused was duly identified by PW-3 during course of trial in the court. Therefore, the moot question which arises is if the said identification was due to 'mistaken identity' or 'false implication'. As to the question of false implication, PW-3 has categorically denied the suggestion of defence regarding false implication of accused. Further, no motive whatsoever has been imputed upon the witness to substantiate the theory of false implication. Therefore, the 'false implication' of accused by the victim is ruled out in the present case for want of any motive as admittedly the parties were not known to each other prior to the alleged incident.
21. As to the question of 'mistaken identity', as evident from record, the incident had occurred in broad daylight when PW3 was standing in his balcony, in front of house of complainant. Therefore, he in such a case was having ample time and opportunity to identify the accused. It was not an incident wherein the witness was having split second to identify the accused who was subjecting the victim to the crime. In view of the place of incident being well lit and availability of sufficient time for identification, it cannot be a case of 'mistaken identity' too. Therefore, the theory of 'mistaken identity' also stands ruled out in the present case.
22. Ld. defence counsel has failed to point out any material contradiction in the testimony of PW3 so as to render the same unreliable. No contradiction much less material contradiction exists in CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 8 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.09.14 11:40:27 +0530 his testimony to render his version unbelievable. In the present case, the testimony of eyewitness is cogent and convincing against the accused regarding the alleged crime.
23. The due identification of the appellant by eyewitness, the narration of the detailed manner in which the crime was committed and consistent version of the witness (PW3) leaves no doubt in my mind about the guilt of accused in the alleged robbery.
24. In my considered view, there is no error or impropriety in the impugned judgment. The testimony of PW3 has been duly corroborated by PW4 who saw him running downwards towards the place of incident. The testimony of PW5 i.e. investigating officer is also in consonance with the prosecution case as he had arrested the accused from the spot after his apprehension. There is nothing in the cross examination of prosecution witnesses to impeach their credibility. No explanation worth the name was offered by appellant in his statement under section 313 CrPC, justifying his false implication. Ld. defence counsel has failed to point out any material contradiction in the prosecution version.
25. Mere non-examination of complainant is not fatal in the instant case as it is a settled law that 'witnesses are to be weighed and not counted' and the testimony of sole eye witness is sufficient to return a finding of guilt if it is found to be truthful, which is the case herein.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:40:35
+0530
Reliance is placed upon judgment of Hon'ble Apex Court in Amar Singh vs. State (NCT of Delhi), Crl. Appeal No. 335/2015 & Inderjeet Singh vs. State (NCT of Delhi), Crl. Appeal No. 336/2015, wherein it has been observed as under:-
"Thus the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State Government of NCT of Delhi)."
26. Therefore, in the facts and circumstances of the present case, I am of the view that prosecution has proved its case beyond all reasonable doubts and therefore there is no infirmity in the impugned judgment.
27. During course of arguments, Ld. Defence counsel had argued that the appellant may be released on probation considering his age. However, in the facts and circumstances of the present case, considering the nature of offence and the age of the victim, I am not inclined to extend benefit of probation to appellant as the present case involves sexual abuse of a minor girl child.
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Digitally
signed by
ANUJ
ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:40:42
+0530
28. Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends herself esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child as in the present case, it leaves behind a traumatic experience. The gravity of the act of appellant can be gauged from the fact that to deal with such cases sternly i.e. sexual assault against minor victims, a special legislation 'Protection of Children from Sexual Offences (POCSO) Act, 2012' has been enacted.
29. Therefore, this court would be failing in its duty, if any further leniency is shown to the appellant as Ld. Trial Court has already taken a very lenient view while awarding a punishment of simple imprisonment for six months and a fine of Rs. 5,000/-. Thankfully for the appellant, the prosecution did not file any appeal seeking enhancement of sentence awarded by Ld. Trial Court.
30. During course of arguments, it is fairly conceded by Ld. Addl. PP for the state that despite best efforts by Ld. Trial Court, since complainant was not traceable, therefore any inquiry in terms of judgment of Hon'ble Delhi High Court (for determining the compensation) in case titled as Karan vs. State, Crl. Appeal No. 352/2020 & Sunny vs. State, Crl. Appeal No. 353/2020, decided on 27.11.2020 would be a futile exercise. I agree with Ld. Addl. PP for CA No. 493/2017 Chhote v. State (Govt. of NCT of Delhi) Page No. 11 of 12 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date:
2021.09.14 11:40:52 +0530 the state on this count.
31. To summarize, there is no infirmity in the impugned judgment and the order on sentence emanating therefrom.
Resultantly, the instant appeal stands dismissed. Appellant be taken into custody and be sent to jail under appropriate warrant for serving his sentence. Copy of the order be given free of cost to the appellant. Appellant has further been apprised that he can challenge the present order before Hon'ble High Court and may approach the office of Delhi High Court Legal Services Authority for free legal aid, in case he so desires.
32. TCR be sent back along with copy of this judgment to Ld. Trial Court. Copy of the judgment be also sent to the concerned Jail Superintendent for compliance through email. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date:
2021.09.14
11:40:58 +0530
Announced in the open (Anuj Agrawal)
court on 14th September, 2021 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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