Delhi District Court
Om Prakash Kanodia vs State on 10 March, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT): SAKET NEW DELHI
Criminal Appeal No. 203/2013
ID No: 02406R0353982013
Om Prakash Kanodia
s/o Sh. B. P. Kanodia,
R/o 4B, Balika Vikas Kendra,
Bhaleswa Dairy JJ Delhi 110042.
Presently lodged in Central Jail, Tihar, Delhi. .... Appellant
Versus
State, Govt. of N. C. T. Delhi. .... Respondent
Instituted on: 20.12.2013
Judgment reserved on: 28.02.2014
Judgment pronounced on: 10.03.2014
J U D G M E N T
1. This criminal appeal has been preferred from jail through Legal Aid Counsel on 20.12.2013 to challenge the judgment dated 08.02.2013 and order on sentence dated 12.02.2013, both passed by Ms. Priya Mahendra, Metropolitan Magistrate (Mahila Court), South District on the file of criminal case no. 294/2 of 2004 registered on the basis of report under Section 173 Cr.P.C. that has been submitted on 20.08.2004 upon conclusion of investigation into FIR No. 112/2004, under Sections 354/509 IPC, Police Station Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 1 of 27 Hauz Khas. Vide the impugned judgment, the appellant was held guilty and convicted for offences under Section 354 and 509 IPC. Vide the impugned order, the learned Magistrate awarded rigorous imprisonment for 18 months with fine of Rs. 5,000/ , in default further simple imprisonment for 2 days for offence under Section 354 IPC and rigorous imprisonment for 12 months with fine of Rs. 5,000/, in default further simple imprisonment for 2 days for offence under Section 509 IPC. She directed the substantive sentences to run consecutively. She accorded the benefit of set off under Section 428 Cr.P.C. As per the trial court record, the fine has not been paid.
2. The appeal is highly belated and has been submitted with an application under Section 5 of Limitation Act seeking condonation of delay. The counsel, who drafted the application, and the Deputy Superintendent, who forwarded the same with appeal, have been so callous in their handling of the matter that even the number of days by which the appeal is belated has been left blank.
3. On notice, respondentState has appeared through Additional Public Prosecutor.
4. Sh. Arvind Kumar Singh, advocate having drafted the appeal in Jail forwarded the same through Deputy Superintendent Central Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 2 of 27 Jail No.4, Tihar to Sh. Sanjay Sharma, Project Officer, Delhi Legal Services Authority, endorsing a copy to Sh. Vimal Kumar Yadav, Additional Sessions Judge, New Delhi. Sh. Vimal Kumar Yadav, Additional Sessions Judge, New Delhi could not be the court to which the appeal was to be addressed or presented. He, thus, made over the copy of the appeal received by him to the office of District & Sessions Judge (South District). Upon the said matter being taken up, it was noticed that the main appeal had not been received. When the matter was taken up, against this back drop, with the office of Delhi State Legal Services Authority by the South District Legal Services Authority, the former office made over the original appeal received there to this court. It is not clarified any where as to why the Delhi State Legal Services Authority set over the matter in their office during the interregnum.
5. Be that as it may, when Sh. Arvind Kumar Singh, advocate was called through notice, he regretted the deficiencies. But, when the matter was listed for further hearing on 06.02.2014, he failed to appear to assist.
6. Against this backdrop, on the request of the appellant, in lieu of Sh. Arvind Kumar Singh, advocate, another advocate Sh. Jitendra Kumar Jha, on the panel of legal aid advocates of South Delhi Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 3 of 27 Legal Services Authority attached to this court was appointed as the legal aid counsel to assist this court for and on behalf of the appellant.
7. I have heard Sh. Jitendra Kumar Jha, advocate (DLSA) for the appellant and Sh. B. S. Kain, Additional Public Prosecutor for the State. I have gone through the record.
8. Though the appeal is highly belated, having regard the age of the appellant (79 years) and the fact that he has been in custody since 17.09.2012, the delay is condoned and the appeal is entertained on merits.
9. The background facts leading to the prosecution of the appellant on accusations for offences under Sections 354/509 IPC through notice under Section 251 Cr.P.C. issued and served on 19.08.2010, and the evidence led during the trial, have been taken note of at sufficient length in the impugned judgment and do not bear repetition. For such purposes, the impugned judgment of the trial court would always come handy as reference material.
10.Suffice it to note here that the FIR (Ex. PW 4/A) was registered on 25.02.2004 at 08.45 PM and was founded on the complaint (Ex. PW 1/A) of the prosecutrix (PW1), who is the owner of the house where the incident is alleged to have occurred. The material on Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 4 of 27 record clearly shows that there is no contest whatsoever to the facts that the prosecutrix (PW1) is a widowed lady with grownup children including a daughter and a son, aged 24 years and 22 years respectively at the relevant point of time. Her allegations in the FIR and the evidence on oath during the trial to the effect that she had inducted the appellant as a tenant at the rental of Rs. 12,500/ per month in the ground floor portion of the said property on 17.09.2003 for a period of 11 months has gone unrebutted. Keeping in view the defence plea taken by the appellant before the trial court, and in the appeal at hand, it may also be noted at this stage that PW1 herself is on record claiming, even in the FIR, that her husband having died about 1 ½ years prior to the date of accident, she was dependent solely on rental income accruing to her from different portions of the said property as source of subsistence for self and the children.
11. The case of the prosecutrix, in the FIR, was that the appellant had given Rs. 25,000/ as cash at the time of he being inducted as tenant whereafter he had not paid a single penny towards rent or on account of his liability towards electricity and water bills, except a cheque of Rs. 7913/ given on 25.10.2003 (which she later clarified to have bounced). She alleged that though she had demanded the Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 5 of 27 payment of rent, the appellant would always misbehave and be abusive and not pay up giving some excuse or the other. She claimed that she had made complaints with the local police, as also to the Commissioner of Police in Police Head Quarters, 3/4 times but no action was taken thereupon.
12.According to the FIR, on 25.02.2004, the prosecutrix had gone to the ground floor portion in the tenancy of the appellant at about 09.15 AM to demand the payment of electricity and water bill and the rent but the appellant had misbehaved with her and told her not to disturb his peace of mind in the morning hours. She alleged that when she persistently demanded the payment on account of she being in need of money, the appellant hurled filthy abuses at her, assaulted on his breast with his hand and had torn her kurta (shirt) and thereafter fled away from the scene in his car.
13.The intimation about a quarrel through Police Control Room (PCR) was received in police station Hauz Khas (hereinafter referred to as "the police station") at 09.20 AM on 25.02.2004 which was recorded vide DD no.4A. The matter was entrusted to SI Narain Singh (the investigating officer) who, accompanied by Ct. Jiwan Barman (PW3), set out for the place in question.
14. When the Investigating Officer (I.O.) with PW3 reached the place Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 6 of 27 in question,he is stated to have been met by the prosecutrix who gave complaint vide Ex. PW 1/A. This became the basis of the FIR (Ex. PW 4/A) registered in the police station by ASI Likender Tyagi (PW4), who was working as duty officer at the relevant point of time.
15.The investigation involved preparation of the site plan and recording of statements. The appellant was arrested on 13.04.2004 at 07.35 PM from the tenanted portion vide arrest memo (Ex. PW 1/B), after personal search vide memo (Ex. PW 1/C) in the presence of the prosecutrix and Ct. Jiwan Giri (PW2). The trial court record would show that the appellant was immediately released on bail, in that both the offences involved were bailable in nature.
16.The charge sheet was submitted in the trial court on 20.08.2004 on which cognizance was taken and process issued. After compliance with the provisions contained in Section 207 Cr.P.C., the matter was listed for further proceedings. The record would show that the appellant jumped bail several times and the trial could commence only on 19.08.2010 when notice under Section 251 Cr.P.C. was served on him.
17. Since the appellant had pleaded not guilty, the Magistrate called Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 7 of 27 upon the prosecution to examine its witnesses. At this stage, four witnesses came to be examined. They would include the prosecutrix (PW1); Ct. Jiwan Giri, (PW2), who had joined investigation at the time of arrest of the appellant; Ct Jiwan Barman (PW3), who had accompanied the I.O. to the spot on receipt the information about the quarrel; and ASI Lokender Tyagi (PW4), the duty officer who had registered the case FIR.
18. The statement of the appellant was recorded under Section 313 Cr.P.C. on 05.11.2012, when he termed the evidence of the prosecutrix as incorrect. He claimed to be innocent and falsely implicated. According to his version, the prosecutrix is "clever and criminal minded". He claimed that he had been inducted as a tenant through a broker Mr. Sharma and had paid Rs. 70,000/ in cash and cheques to the complaint in advance. He claimed that the complainant had received rent every month without giving any receipt and that if he were to demand the receipts, the complainant would threaten to involve him in case under Sections 107/151 Cr.P.C. and in further criminal cases. He alleged that the complainant had told him that she was giving Rs. One lac per month to ACP and other officials of police station Hauz Khas. He admitted that he was arrested in the case as shown by the Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 8 of 27 documents filed with the charge sheet but claimed that on 25.02.2004, SI Narain Singh (I.O.), two constables, the complainant and her children and another boy had barged into his room on the pretext of taking a search of the premises. He claimed that his passport was taken over by the beat constable, who had given it to the I.O. He further alleged that his belongings were loaded into a rented truck and he was told not to come back but to appear at the police station. He further claimed that though he had noted down the registration number of the vehicle in which his goods had been loaded, the piece of paper was also snatched from his hand. He alleged that the complainant was involved in illegal activities like prostitution and had been paying money to the local police and since he had lodged complaint against the same, he had been falsely implicated and robbed of his valuables.
19.When the opportunity was offered for the purpose, the appellant in his statement under Section 315 Cr.P.C., declined to lead evidence in his defence.
20.The trial court record further shows that when the matter had reached the final stages, the appellant submitted a petition on 05.11.2012 before the Metropolitan Magistrate which, on the request of the legal aid counsel then provided to him, was treated Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 9 of 27 as his written statement under Section 313 (5) Cr.P.C. It may be observed here that the sum and substance of the said document, treated as written statement under Section 313 (5) Cr.P.C. is more or less on the same lines as was the defence explained by him in the statement under Section 313 Cr.P.C.
21. The trial court record would show that when the matter reached the stage of final arguments, upon perusal of the aforesaid written statement under Section 313 (5) Cr.P.C. Magistrate found it necessary to revert back to the stage of defence evidence in as much as prayer had been made therein for certain documents to be called. Be that as it may, the opportunity, thus, enlarged for defence evidence to be adduced was never availed by the appellant and the matter kept hanging fire at that stage for prolonged period. The appellant, in the meantime deliberately came up with some reason or the other to pray for adjournments virtually so as not to cooperate with the Metropolitan Magistrate. Thus, the final judgment was rendered by the Metropolitan Magistrate holding the appellant guilty and convicting him with the result noted earlier.
22.It is clear from the trial court record that the fate of this case hinges on the testimony of PW1, the sole witness to the occurrence. PW3 was with the investigating officer on 25.02.2004 Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 10 of 27 when the complaint was received and the FIR registered. PW2 was with the investigating officer when the appellant was arrested. The role of PW4 is formal in nature in that he, as duty officer, had only recorded FIR on the rukka sent by the investigating officer on 25.02.2004. What has been high lighted, however, in his respect is the fact that the FIR was registered at 08.45 PM on 25.02.2004.
23.ASI Narain Singh, the investigating officer could not be produced by the prosecution. He had expired on 24.03.2011, a fact reported on the summons in his name issued for 19.10.2012.
24.The testimony of PW1 is along the lines of her version in the FIR. Having deposed about the facts relating to the tenancy and the non payment of rent or other dues of electricity and water bills, she testified at length about the incident that had occurred around 09.15 AM on 25.02.2004. She stated that when she had asked the appellant to pay money on such account, he had abused her by using words to the effect "kutti, haramzadi" ("bitch", "bastard"). She also stated that the appellant had questioned her presence by uttering words to the effect "subha subha aa jati hai mera time karab karne kay liye" (translated in English to mean " she would come in early hours of the morning to waste his time). She stated that the appellant had pounced at her breast and had also torn her Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 11 of 27 kurta (shirt) and when she had dialed Police Control Room at phone no. 100, resulting in PCR coming, the appellant had run away from the spot in his car.
25.During her crossexamination, PW1 denied that she had taken Rs. 70,000/ as advance from the appellant, some part in cash and rest in cheque. She, however, confirmed the word of the appellant by conceding that the appellant had been introduced to her by a property dealer named Lalit Sharma. She stated that she had given a statement against the appellant before the Special Executive Magistrate (SEM). It has not, however, been formally elicited any where as to what were the proceedings before the SEM. One may assume, since reference has come in the statement of the appellant, that the said proceedings related to Sections 107/151 Cr.P.C. PW1 denied the suggestion that any Russian girls were staying in the 2 nd floor of her property. She conceded the suggestion that no other tenant or any witness was present at the time of incident narrated by her. She denied the suggestion given by the appellant as incorrect to the effect that she along with property dealer Lalit Sharma had broken the windshield of the car of the appellant or that her daughter had tendered apology for such incident. She conceded that she had not been subjected to any medical Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 12 of 27 examination. But then, it must be added here that the fact that there was no medical examination was indicated even in the FIR where the prosecutrix had stated (in the concluding part) that she did not want any medical examination since she had not suffered any injury in the incident. She denied the suggestion that she had called police officials and with the help of her family members had thrown out the belongings of the appellant at 07.00 PM on 25.02.2004 or that it was a false case engineered against the appellant because he had not been paying rent for a number of months.
26.As mentioned earlier, the statements of PW2 & 3 are also more or less formal in nature. PW3 was with the I.O. on 25.02.2004. No suggestion about the illegal attempt to remove the belongings of the appellant from the tenanted portion in the evening of 25.02.2004 (as is the defence plea)were given to him. PW2 had participated in the investigation process only on 13.04.2004, when the appellant had been arrested. During his crossexamination, suggestions were given that the I.O. had seized passport of the appellant and that his belongings were removed from the tenanted portion on to a truck forcibly. The witness denied these suggestions, as also the suggestion that the appellant had been Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 13 of 27 physically assaulted by the police officials. He, however, confirmed that he had taken the appellant to hospital for medical examination.
27. The trial court found the evidence of PW1 worthy of reliance. The Magistrate observed that the statement of PW1 has remained unassailed and deserves to be accepted. She has rejected the contention of absence of corroboration from independent witnesses. It is clear from the trial court record that the garment allegedly torn during the incident was never seized or produced as piece of evidence. The Magistrate declined any benefit of doubt to the appellant on this account treating it more as a default of the police.
28.The counsel for the appellant has argued that there are material contradictions/inconsistencies which go to the root of the case and, on which account, the benefit of doubt should have been extended to the appellant.
29. Per contra, the Ld. additional public prosecutor submitted that evidence of the prosecution led particularly through the mouthpiece of PW1 is consistent and the minor contradictions appearing on the record do not detract one from the impression that the guilt of the appellant has been duly brought home.
30.It has been argued that there is no explanation for the torn shirt of Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 14 of 27 PW1 not being produced as evidence or she not being medically examined.
31. The torn shirt of PW1 would have been undoubtedly an important corroborative piece of evidence. Unfortunately, in the chargesheet, there is no explanation given as to why the said piece of garment was not seized during the investigation. The explanation for omission in this regard could have been given by the investigating officer but he was not available to the prosecution since by the time the trial began and his turn for evidence came, he had passed away. Explanation could have been sought for the default from PW1 but the defence scrupulously avoided raising any such questions of her. If at all it was a default of the investigating agency and for this, the word of the first informant cannot be rendered incredible.
32.The counsel for appellant submitted that it is implausible story of PW1 that there had been default in payment of rent for over 7 months because she never filed any case for recovery of arrears or ejectment. The counsel further argued that the Magistrate has not appreciated the case in right perspective in as much as the claim of the appellant about he having paid Rs. 70,000/ as advance towards rent to the appellant has not been considered.
33.The submissions made by the appellant do not impress me. It is Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 15 of 27 clear from the record that having been inducted as a tenant by PW1 in a portion of her house at the ground floor level at the rate of Rs. 12,500/ per month with effect from 17.09.2013, he did not pay the rent beyond that for one month in advance and amount equivalent to one month rent as security. He has not refuted the oral testimony of PW1 about consistent default in payment of rent and other dues (electricity and water charges) even though she would press for the same at regular intervals. He has not disputed that he was raising objections and would come up with excuses for default in the payment of rent. Under crossexamination, PW1 clarified that the appellant had occupied the rented portion for a period of seven months. This would mean the amount due towards rent alone would come to Rs. 87, 500/, this, in addition to what would be payable towards electricity and water charges. During cross examination he did suggest to PW1 that she had taken Rs. 70,000/ as advance. But then, with regard to the mode of payment, he was as vague as he could be. He claimed in the suggestion to PW1 that the said amount paid upfront included some in cash and the rest in the form of cheques. One could understand his inability to come with formal evidence about the payment of money in cash because he also claims that PW1 never issued any receipts. But, it should Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 16 of 27 not have been difficult for the appellant to prove the amount paid by way of cheques. Despite full opportunity, he has not led any evidence worth the name on this score. Clearly, the plea is false.
34.Against the background facts, as vividly brought out from the testimony of PW1, it does not stand to logic that she be disbelieved with regard to her word respecting the incident in question only because she did not pursue the matter of recovery of arrears of rent or other charges by way of civil suit.
35.In the same context, it was argued on behalf of the appellant that the intention of the prosecutrix was to oust the appellant from the tenanted premises on one pretext or the other and that it needs to be borne in mind that the appellant was divested of the possession of the tenanted portion under compulsion as a result of this case. It was submitted that the material on record indicates the appellants had come to the house with a truck in which the goods of the appellant were loaded and he was forcibly evicted and threatened not to return.
36.The Ld. additional public prosecutor countered, and I agree with his submissions, that mere suggestions to above effect cannot become a material on which theory can be held to be substantiated. Under crossexamination of PW1, suggestions were given about the Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 17 of 27 belongings of the appellant having been thrown out with the help of police on 25.02.2004. She denied the said suggestion as incorrect. As indicated earlier, PW3 had accompanied the investigating officer to the place of incident on 25.02.2004. No suggestion on these lines were given to him. Instead, the allegations concerning forcible eviction were suggestion to PW2 with reference to his role in the investigation on 13.04.2004 when the arrest was effected. Thus, the theories propounded by the appellant carry inherent contradiction. There is no evidence led worth the name about such forcible eviction. It needs to be added here that the appellant was released on bail immediately after his formal arrest on 13.04.2004. If indeed he had been subjected to forcible eviction, he had remedies available to him in the law and also the liberty to approach authorities under the law. Since the said remedies were never pursued nor any formal complaint is shown to have been lodged with any authority, the defence plea cannot be given any credence.
37. The counsel for the appellant further argued that given the fact that a case under Section 107/151 Cr.P.C. had already been registered, it is not believable that PW1 would go alone to the appellant to demand arrears of rent, even though she had a grown up son and Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 18 of 27 daughter available who could do this duty for her. The counsel also submitted that even though the fact that there had been proceedings conducted under sections 107/151 Cr.P.C in the court of SEM had been brought to the notice of the trial court, no interest was shown in such regard as even the file was not called for.
38.The appellant did mention the background facts to include proceedings under section 107/151 Cr.P.C. Reference to this had indeed come even in the crossexamination of PW1. But then, the said proceedings, prima facie, would show that there had been strained relationship between the landlady (PW1) and the tenant (the appellant) in the past. If the allegations made at such earlier stage were important for the defence, it was for the appellant to seek production of the corresponding record. The trial court proceedings clearly show that despite opportunity the appellant did not produce any evidence in defence.
39.As regards the fact that PW1 went alone to the house of the appellant even though she could have asked either of her grownup children to carry out this errand, I do not find any substance in the defence submission. PW1 has made it clear that she being a widowed lady with no source of livelihood except rental income for support of herself and her grownup children, even though, the Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 19 of 27 tenant (the appellant) had not been cooperative, there was no plausible reason for her to desist from going to him and repeat her demand for payment of rent and other charges. In her anxiety, it was only natural that she would herself go to the tenant in default. It is not a case where the appellant had earlier molested her that she would feel any inhibition from going to him alone. She could not have foreseen such incident from happening.
40. The counsel further argued that even though PW1 has claimed in the witness box that cheque of Rs. 7913/ could not be encashed, no action was taken under Section 138 Negotiable Instruments Act on such account and, therefore, her version could not be believed. The counsel also argued that by no stretch of imagination, amount of Rs. 7913/ could be the value of the cheque in as much as the rate of rent was Rs. 12,500/
41. The value of the cheque mentioned above may not correspond with the rate of rent. But then, it has to be remembered that besides rent, electricity and water charges were also to be reimbursed by the tenant. As regards the absence of action under section 138 Negotiable Instrument, the story does not get belied only because the matter was not followed up by PW1 under the criminal law. The entire set of facts concerning the cheque are not available on Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 20 of 27 record of this case and, therefore, it cannot be said that a case under section 138 Negotiable Instrument was available as a remedy to PW1. Even otherwise, pursuit of such criminal remedy is a matter of personal choice. The fact remains that the evidence of PW1 about the said cheque having bounced at the bank has gone unrebutted.
42.The appellant then referred to the testimony of PW3 to the effect that the copy of DD no. 4A had been received at 08.30 AM of 25.02.2004 and that he along with the I.O. had reached the spot at 08.45 AM on the same day. The argument raised is that since the incident is alleged to have occurred at 09.15 AM of 25.02.2004, the above assertion on the part of PW3 would render the entire sequence doubtful.
43. It was further argued that there is no explanation as to why the FIR was registered only at 08.45 PM on 25.02.2004 even though the incident had occurred at 09.15 AM. The argument is that the delay has remained unexplained and, thus, possibility of fiction being added cannot be ruled out.
44.Oral testimony cannot prevail over official record contemporaneously prepared in regular course of police procedure. The trial court record would show that DD No. 4A came to be Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 21 of 27 logged only at 09.20 a.m. If it were so, PW3 could not have received a copy thereof at 08.30 a.m. It is very clear that some confusion prevailed in his mind when he deposed facts contrary to this position. He was not called upon to explain the discrepancy between his oral word and the documentary evidence available on record. Without such efforts, an error by the witness in stating the correct time cannot puncture the entire case. Further, PW1 had set the criminal law in motion by calling the PCR at 09.20 a.m. If the police took its own time in reaching and making the inquiries leading to the registration of the FIR later in the night on the same date, she cannot be blamed for delayed FIR.
45.The counsel for the appellant then argued that PW1 is not a law abiding woman and so is not worthy of reliance. In developing this line of argument, he submitted that even though PW1 would claim that the property in the ground floor of which the appellant had been inducted as a tenant for residential purposes had been misused by him for running an office, she has admitted during crossexamination that certain other portions (basement and first floor) of the same property had been let out to agencies engaged in commercial work. He also submitted that the appellant had inducted Russian girls in a portion of the property and that she was Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 22 of 27 also engaged in prostitution and would pay huge bribe to the local police. He submitted further that PW1 was in the habit of taking law in her hands, in as much as, she had caused intentional damage to the car of Lalit Sharma, the property dealer.
46. In my considered view, the above submissions are not founded on any concrete material and, therefore, cannot be given any serious consideration. PW1 has no where stated that the property in which the appellant was inducted as a tenant could be used only as a residential building. Even if one were to believe that she had misused the property by letting out certain portions for non residential purposes, it would not mean that she is to be disbelieved whenever she makes any allegation of crime having been committed against her.
47. The assertion of the involvement of PW1 in prostitution racket or damage to the car of Shri Lalit Sharma, the property dealer or for that matter regular payment of bribe to the local police have no legs to stand on. They are allegations made just in the air with not even a shred of evidence submitted in support. If the appellant had personal knowledge in this regard, he could have offered his own word as witness in defence. He did not lead any evidence worth the name even though opportunity was made available. It is indeed Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 23 of 27 unfortunate that reference to presence of girls of Russian origin made in the course of evidence in the form of suggestions given at the instance of the appellant is being used to imply, in the arguments, that a prostitution racket was being indulged in. This smacks of racial bias. If the car of the property dealer Lalit Sharma had been damaged by PW1, he could have been produced to prove the necessary facts. The allegations of payment of bribe or illegal gratification to police is too general to be accepted.
48.To my mind, the above line of arguments are nothing but an effort at character assassination adding insult to the injury suffered by PW1. The submissions of the appellant, thus, are rejected with the contempt they deserve.
49.Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities. [Narotam Singh Vs. State 1978 Cr. L. J. 1612 (SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses. [Lallan Vs. State 1990 Cr. L. J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247] that all discrepancies are not capable of affecting Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 24 of 27 the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
50.On careful appraisal of the evidence led on the record of the trial court, I am of the considered view that the guilt of the appellant has been duly brought home beyond all manner of doubts. The prosecution evidence in general, and the testimony of PW1 in particular, inspire confidence. There is no reason why PW1 would falsely implicate the appellant on a trumped up charge. There is no reason why her evidence be disbelieved.
51. In the result, I find no error, illegality or impropriety in the impugned judgment of the trial court whereby the appellant has been held guilty and convicted for offences under sections 354/509 IPC. The appeal preferred against the judgment is devoid of merits and is thus dismissed.
52.On the question of sentence, it has been argued that the punishment inflicted is harsh, given the fact that prolonged periods of imprisonment on two counts has been awarded, that too made consecutive, ignoring the submissions that the appellant is a senior citizen suffering from several ailments.
53.It does appear that the Ld. Magistrate has been rather harsh in dealing with the appellant in the matter of sentence. It appears she Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 25 of 27 was swayed by the conduct of the appellant during the trial. The Magistrate seems to have gone over board by directing the punishment awarded for offence under section 509 IPC to be in nature of rigorous imprisonment and the substantive sentences on both counts to run consecutively. Section 509 IPC does attract a possible period of imprisonment but it carries a restriction that such imprisonment cannot be anything but simple in nature. Having regard to the age of the appellant, and his medical condition, the direction for the substantive sentences on two counts to run consecutively renders the period of possible incarceration rather too long.
54.The appellant having repeatedly jumped bail was taken in custody by the trial court during trial on 17.09.2012. He continued to face the trial from custody thereafter. The order on sentence was passed on 12.02.2013. There was no prayer made at that stage for the order of sentence to be suspended or the appellant to be released on bail under section 389 Cr.P.C. The appeal was filed belatedly only on 20.12.2013. As a result, the appellant has remained in custody now for 1 year 5 months and 22 days. Thus, the substantive period of imprisonment awarded for the offence under section 354 IPC has been virtually suffered in full. Reduction in sentence on such Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 26 of 27 account would be only of academic interest.
55.Having regard to the totality of the facts and circumstances including the conduct of the appellant qua the prosecutrix leading to the offences being committed during the trial, there is no good reason why the view taken by the trial court respecting the offence under section 354 IPC should be disturbed. The order on sentence, thus, needs to be modified only so as to bring in the necessary corrections with regard to nature of imprisonment for offence under section 509 IPC and the actual period of incarceration to be suffered by the appellant.
56.Thus, the appeal is partially allowed. The order on sentence is modified only to the effect that the nature of imprisonment awarded for offence under section 509 IPC shall be read as simple imprisonment and the sentences on both counts shall run concurrently.
57. The appeal stands disposed of with above observations/directions.
58. The trial court record along with copy of this order be sent back.
59.The file of the criminal appeal be consigned to Record Room.
Announced in open Court today
on this day of 10th March, 2014 (R.K. GAUBA)
District & Sessions Judge
(South District) Saket/New Delhi
Crl. Appeal No. 203/2013 Om Prakash Kanodia Vs. State Page 27 of 27