Delhi District Court
State vs . Akbar Malik on 29 April, 2017
IN THE COURT OF MS. SURABHI SHARMA VATS: MM,
MAHILA COURT01, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
State Vs. Akbar Malik
FIR No. 49/13
U/s : 354D IPC
PS : Yamuna Depot Metro
JUDGMENT
1. Sl. No. of the case : 11089/16
2. Name of the complainant : Name withheld
3. Date of commission of offence : 10.11.2013
4. Name of accused and address : Akbar Malik
S/o Mr. Akhtar Malik
R/o 145/61, Gali No. 1,
Shiv Mandir Marg, Mandawali,
Delhi92
5. Offence complained of/ proved : 354D IPC
6. Plea of accused : Not guilty
7. Final order : Conviction
8. Date of such order : 22.04.17
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Succinctly stated the case of the prosecution is that on 10.11.2013 at about 02:00 pm at platform no. 2, Nirman Vihar Metro Station, Delhi, accused followed the complainant namely Ms.'X' to foster personal interaction despite clear indication of disinterest by her and prior to the said date also, at unknown dates and time, he (accused) used to follow her repeatedly to foster personal interaction, despite clear indication of her disinterest and thus, thereby, accused Akbar Malik committed an offence punishable U/s 354D IPC.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.1 to 21
2. Upon completion of investigation, charge sheet for commission of offences punishable U/s 354D/509 IPC was filed. The copies of the challan were supplied to the accused and after hearing the accused, charge for an offence punishable u/s 354D IPC was framed against the accused Akbar Malik to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations against the accused, the prosecution has examined three witnesses.
4. PW1 Ms. X (name withheld) is the complainant/ victim who has deposed that on 10.11.2013 at about 2.00 pm, she left her office i.e. NF International, Mandawali, Delhi to reach at Nirman Vihar Metro Station on Rickshaw; accused followed her from her office and parked his scooty at the parking of Nirman Vihar Metro Station and came behind her at the same platform from where she was waiting for Metro Train going towards Dwarka. She deposed that accused had clicked on his mobile phone to take her photo from side and when she heard the sound of camera then, she asked the accused to show her his mobile phone; on this, accused declined her to show his phone and deleted the photo at the same time. Thereafter, accused started running towards exit and she also ran behind him and called the security person who dragged the accused and took him to cabin. PW1 deposed that she asked the security person to check the mobile phone of the accused and on checking the phone, photo was found to be deleted by the accused. Then, she asked the security persons to check the CCTV Footage of the platform from where accused had clicked her photo; security person called the police. Police came there and took the accused to PS and she also FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.2 to 21 accompanied with police. PW1 made a written complaint Ex.PW1/A of the incident to the police. PW1 further deposed that she had not shown the place of incident to police as police had not asked for the same. Her statement u/s 164 Cr.PC Ex.PW1/B was recorded. PW1 also testified that police had arrested the accused at her instance vide arrest memo Ex.PW1/C and also personally searched him vide personal search memo Ex.PW1/D. She deposed that police had recorded the disclosure statement of accused vide disclosure memo Ex.PW1/E. PW1/ Victim further deposed that prior to the filing of complaint Ex.PW1/A, some messages came to her mobile number i.e. 9899051300 from unknown numbers and she doubted that the same had been sent by the accused.
This witness was crossexamined by the Ld. Defence Counsel and during her crossexamination, PW1 deposed that she had seen Akbar Malik prior to the present incident also near her office at Mandawali as the accused used to roam around her office on his white scooty. She deposed that she had heard voice of clicking of photograph by the accused; she had not seen her photograph in the mobile of the accused; she only came to know about the clicking of photo after seeing the flash light and hearing the sound of clicking of said mobile phone. PW1 further deposed that she had seen the accused at the time of hiring the rickshaw, then mid of the way and at platform of the Nirman Vihar, Metro Station and she raised noise while chasing the accused. She admitted that the house of the accused is situated near Shiv Mandir where her previous office was situated.
5. PW2 Shri Jayant Kumar is the Station Controller who has deposed that on 10.12.13, he was on duty at Station Control Room and one of metro guards took the complainant and accused (correctly identified by FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.3 to 21 the witness) to his control office at Nirman Vihar Metro Station and complainant had narrated to him (PW2) that accused was clicking her photo from his mobile phone. Thereafter, he called CISF personnel and complainant had told him that she wanted to lodge the complaint against the accused. PW2 deposed that he made a call at PS Yamuna Depot Metro and police came there; the complainant narrated the whole incident to the police; police arrested the accused vide arrest memo Ex.PW1/C and recorded his statement.
This witness was crossexamined by the Ld. Defence Counsel and during his crossexamination, PW2 deposed that he does not remember the exact location from where the accused and complainant were brought to his office and that police had taken the mobile phone of the accused.
6. PW3 ASI Hari Om is the IO of the case who had deposed that on 10.11.2013, on the receipt of the DD No.9 regarding the misbehaving of one girl by one person, he went to Nirman Vihar Metro Station and reached at Office of the Station Controller namely Jayant Kumar where they met with the complainant and the accused, who were sitting there. He deposed that complainant had given her written complaint Ex.PW1/A and in the meantime, Ct. Surender came there; on the basis of the written complaint of complainant, he prepared the rukka Ex.PW3/A and handed over the same to Ct. Surender for the registration of FIR; after the registration of FIR Ct. Surender came back at the spot with the copy of the FIR and original rukka and handed over the same to him. PW3 further deposed that he prepared the site plan Ex.PW3/B at the instance of the complainant and had also arrested the accused after interrogation, at the instance of the complainant vide arrest memo Ex.PW1/C and accused was personally searched vide personal search FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.4 to 21 memo Ex.PW1/D. PW3 deposed that he recorded the disclosure statement of the accused Mohd. Akbar vide disclosure memo Ex.PW1/E and also recorded the supplementary statement of complainant at the spot; he also recorded the statement of the Station Controller of the concerned metro station. PW3 further deposed that on the next day i.e. on 11.11.2013, he also seized the scooty of the accused vide seizure memo Ex.PW3/C; accused was taken to PS YDM and was released on police bail and after the completion of investigation, he prepared the charge sheet and filed the same before the court.
This witness was crossexamined by the Ld. Defence Counsel and during his crossexamination, PW3 deposed that both, accused and complainant were already present in the Station Control Room; he had enquired from the security guard regarding clicking of photos from mobile; he had checked the mobile and the same was not seized by him as the accused had already deleted the photos. He deposed that he had also made an enquiry from the complainant regarding the clicking of photos from mobile who told him that she had not seen the photographs as accused refused to hand over the said mobile to her and as per complainant, said photos were already deleted from the mobile.
PW3 deposed that he does not remember whether accused was having any token or metro card or not; no token or metro card was recovered during the personal search of the accused; he had not enquired regarding entry of the accused in the metro station. He admitted that no one can enter into the Metro Station without token or Metro Card. PW3 also admitted that CCTVs camera were installed in the said Metro Station, however, he had not collected any CCTV footage of the said incident. PW3 also deposed that complainant had told him that her office was situated near the shop of FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.5 to 21 accused; he had never visited at the office of the complainant.
7. PE was closed after examination of PWs and statement of the accused was recorded u/s 313 Cr.P.C. whereby all the incriminating evidence including exhibited documents available on record were put to the accused. Accused stated that he is innocent and has been falsely implicated in the present case.
8. Ld. APP for State has submitted that the accused be convicted as per law as the victim has vividly described the incident before the court and her testimony remained unshaken, even during her crossexamination. This Court has heard the Sh. Ashutosh Pandey, Ld. APP for the State and Sh. R. S. Yadav, Ld. Counsel for the accused and has also carefully perused the entire record.
APPRECIATION OF EVIDENCE
9. To bring home the guilt U/s 354D IPC, the prosecution is required to prove on record that :
i) a man follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by her; or
ii) monitors the use by a woman of the Internet, email or any other form of electronic communication.
The said offence is subject to the certain exceptions :
i) if the said act is done for the purpose of preventing or detecting crime and the said act has been entrusted by the State;
ii) if the said act was done under any law; or
iii) if the said act is reasonable and justified in given circumstances.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.6 to 21 Now this court shall proceed to determine whether in the present matter, accused Akbar Malik is guilty of an offence punishable U/s 354D IPC :
10. Section 354D IPC was introduced in Indian Penal Code vide the Criminal Law (Amendment) Act, 2013 which came into force on 03.02.2013.
In the instant case in hand, the prosecution has alleged the commission of the offence U/s 354D(1)(i) IPC and the constituents of the same are as follows :
(i) Any man who follows a woman;
(ii) Contacts or attempts to contact such woman to foster personal interaction (repeatedly)
(iii) Despite a clear indication of disinterest by such woman.
11. Now, adverting to the facts of the present case, victim/ Complainant Ms. X has clearly deposed that on 10.11.13 at about 02.00 pm, she left her office from Mandawali, Delhi to reach at Nirman Vihar Metro Station on rickshaw. She has further deposed that accused namely Akbar Malik (who was present in the court on the day of her deposition and correctly identified by the victim) followed her from her office and parked his scooty at the parking of Nirman Vihar Metro Station and came behind her at the same platform, where she was waiting for Metro Train going towards Dwarka.
She also deposed that accused had clicked on his mobile phone to take her photo from side and when she heard the sound of camera then, she asked the accused to show her his mobile phone; on this, accused declined her to show his phone and deleted the photo at the same time.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.7 to 21 Thereafter, accused started running towards exit and she also ran behind him and called security person who dragged the accused and took him to cabin. She asked the security person to check the mobile phone of the accused and on checking the phone, photo was found to be deleted by the accused. Then, she asked the security persons to check the CCTV Footage of the platform from where accused had clicked her photo; security person called the police. Police came there and took the accused to PS and she also accompanied with police and made her written complaint Ex.PW1/A to the police.
During her crossexamination, complainant/ victim Ms. X has deposed that she used to go to her office at Mandawali on rickshaw and she had seen the accused Akbar Malik, prior to the present incident also near her office at Mandawali as he used to roam around her office at Scooty. She has further deposed that she cannot tell the specific date, month and year, prior to the incident, when accused had followed her. She has also deposed that she had seen the accused at the time of hiring the rickshaw, then mid of the way and platform of the Nirman Vihar, Metro Station.
12. Accused has neither lead any defence evidence in the present matter nor has stated any specific defence. He has only stated in his statement that he is innocent and has been falsely implicated in the present case.
13. Ld. Defence Counsel has argued that accused deserves to be acquitted in this case as the prosecution has failed to collect the CCTV footage of the Metro Station Nirman Vihar, where the incident allegedly took place or the mobile phone of the accused, on which the photographs of the victim were allegedly clicked. Ld. Defence Counsel has also submitted that there is no corroborative evidence to prove that the accused was present FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.8 to 21 at the Metro Station on the day of the alleged incident i.e. on 10.11.13, as no Metro Card or token was recovered from the possession of the accused. Ld. Defence Counsel has further stated that the house of the accused is situated near the office of the victim, therefore, accused used to roam around there.
14. (a) The first ingredient of the offence U/s 354D(1)(i) IPC is that "Any man who follows a woman" In the case at hand, the complainant/ victim has clearly deposed in her examination that on 10.11.13 at about 02.00 pm, accused followed her from her office and parked his scooty at the parking of Nirman Vihar Metro Station and came behind her at the same platform from where she was waiting for Metro Train going towards Dwarka. Further, in her crossexamination, victim has deposed that she cannot tell the specific date, month and year, prior to the incident, when accused had followed her.
Therefore, the deposition of the victim/ complainant is very specific and clear with regard to the present incident i.e. with the date and time, when she was being followed up from her office to the Platform, Metro Station Nirman Vihar. However, she could not tell the dates, months and year, when accused had followed her, prior to the incident in question. Meaning thereby, accused followed her even prior to the present incident, the date, time and place of which (present incident) is clearly mentioned by her. Moreover, admittedly, accused also used to roam around in that area, in which the office of the complainant was situated.
It is very well settled that witness could not be expected to have a phenomenal memory and no reasonable person could remember the specific date or time of her repeated following, unless the victim is being followed daily at the same time.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.9 to 21 Hence, on the basis of the unequivocal testimony of the victim, it can be said that the accused was following the complainant/ victim.
(b) The second ingredient of the offence U/s 354D(1)(i) IPC is that "Contacts or attempts to contact such woman to foster personal interaction" Complainant/ victim has deposed that accused had clicked her photo on his mobile phone and when she heard the sound of camera then, she asked the accused to show her his mobile phone. However, accused declined her to show his phone and deleted the photo at the same time and thereafter, accused started running towards exit. Complainant/ victim has deposed in her crossexamination that she came to know about the clicking of photo after seeing the flash light and hearing the sound of clicking of said mobile phone.
It can be deciphered from this part of the testimony of the complainant that accused tried to foster personal interaction with the complainant by clicking her photograph or attempting to click her photograph and in this regard, complainant has clearly deposed that she had seen the flash light and also heard the sound of clicking of photograph. In her statement recorded U/s 164 Cr.PC which is Ex.PW1/B, victim has also mentioned that police came and checked CCTV footage in which it was found that accused was clicking her photograph. Even if the photographs were not found by the victim in the mobile of the accused as the same already stood deleted but he attempted to foster personal interaction by clicking or trying to click photographs of the victim and the same would still be covered under 'attempt to foster personal interaction'.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.10 to 21
(c) The third ingredient of the offence U/s 354D(1)(i) IPC is that "despite a clear indication of disinterest by such woman" Complainant/ victim has deposed that when she heard the sound of camera, she asked the accused to show her his mobile phone, on this accused declined her to show his phone and deleted the photo at the same time and started running towards exit and she also ran behind him and called security person who dragged the accused and took him to cabin. Complainant also deposed that she asked the security person to check the mobile phone of the accused and on checking the phone, photo was found to be deleted by the accused. Then, she asked the security persons to check the CCTV Footage of the platform from where accused had clicked her photo; security person called the police. Police came there and took the accused to PS and she also accompanied with police and she made a written complaint of the incident to the police which is Ex.PW1/A. Victim has clearly deposed that the accused refused to show his mobile phone to her and started to run away and complainant also ran behind him. She has also deposed in her crossexamination that she raised noise while chasing the accused.
This conduct of the victim shows that she displayed her disinterest, the moment she reacted negatively and ran behind the accused. Disinterest of the complainant/ victim is also evident from the fact that as and when accused tried to foster personal interaction with her by clicking her photograph, she objected and with the help of security person, she got the accused apprehended and arrested, from the spot. Further, she showed her disinterest by registering the written complaint Ex.PW1/A against the accused, which culminated into the present case FIR.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.11 to 21
15. At this juncture, it would be apposite to quote that the provisions under the sections which have been introduced by the Criminal Law (Amendment) Act, 2013 have to be interpreted broadly, keeping in view the objects of this act and in order to curb the crime against the women with iron hand. Access to free and safe public space is the human right of a woman. However, to roam freely on a public place is still a challenge for a woman.
The words 'interaction' and 'disinterest' used in the section 354D IPC need to be given wide amplitude. This interaction may be nonverbal as the Act nowhere says that interaction has to be verbal only, similarly disinterest may also be nonverbal. The moment Prosecutrix/ victim acts negatively through her actions or reactions which may be non verbal, disinterest may safely be inferred.
16. Now, coming to the submissions made by the Ld. Defence Counsel that prosecution has failed to collect the CCTV footage of the Metro Station Nirman Vihar, where the incident allegedly took place or the mobile phone of the accused, on which the photographs of the victim were allegedly clicked.
In the present matter, the evidence of the victim/ prosecutrix is a direct evidence available on record and it is trite law and settled proposition that once the statement of the prosecutrix inspires confidence of the court and is accepted by the court as such, conviction can be based only on solitary evidence of the victim and no corroboration is required, unless there are compelling reasons which necessitate the court for corroboration of her statement.
The mobile phone of the accused and CCTV footage are merely corroborative pieces of evidence and the evidence of the victim/ star witness FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.12 to 21 is the primary direct evidence and the conviction can be based on the sole evidence of the victim/ prosecutrix, provided it is cogent and trustworthy.
17. Accused has neither lead any defence nor has brought anything on record to prove that he was not present at the Metro Station, where the last incident allegedly took place. Merely, because no Metro Card/ token has been recovered from personal search of the accused would not automatically prove plea of alibi of the accused. Admittedly, the Metro token is required for entering into a metro station. Likewise, the same (Metro Token) is also required for the purpose of the exiting from the metro station. In this regard, it is also pertinent to mention here that in her complaint Ex.PW1/A, victim has stated that the accused started to exit from the Metro Exit in speed. The accused might have used the same for the purpose of exit, when he started to exit or when was taken to the control office of the Station Controller. Moreover, the accused has been arrested from the spot and the arrest memo Ex.PW1/C which has already been proved on record also shows the place of arrest of the accused as Nirman Vihar, Metro Station, arrest memo Ex.PW1/C is duly signed by the accused. PW1/complainant has specifically deposed that police came at the Nirman Vihar Metro Station and took to the accused to the P.S. and she also accompanied the police.
PW2 Sh. Jayant Kumar, Station Controller posted at Nirman Vihar Metro Station has also deposed that police came there (at the metro station Nirman Vihar) and police has arrested the accused vide arrest memo Ex.PW1/C. This is also evident from the arrest memo which bears signatures of the complainant and station controller as witnesses. Therefore, in view of the above discussion, mere non recovery of the metro card or token would not by itself prove the plea alibi of the accused when he is being arrested FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.13 to 21 from the spot/ place of incident in presence of the independent witnesses i.e. the complainant and Station Controller.
18. Ld. Defence counsel has also made a submission that house of the accused is situated near the office of the complainant/victim. Therefore, he used to roam around there. This submission, does not hold any water as even if the house of the accused is situated near the office of the complainant, this fact does not give him license to roam around her office and to follow her. Furthermore, one can very well perceive the difference between a man, who is passing by a office for going to his home/ to any other place and the man who is roaming around her office with some other intention i.e. to follow.
Accused has also placed reliance upon one judgment titled as State Vs. Brijesh @ Rahul 2017, (1)LRC 438 (DEL) in which Hon'ble High Court of Delhi upheld the judgment of acquittal of the accused/respondent.
This judgment is perused. Perusal of the judgment reveals that the accused was having a specific defence in that case and for proving that defence, accused led defence evidence and Ld. Trial Court held that the defence of the accused was probablized. The court also noted that no proper investigation was done by the investigation officer.
However, in the present case at hand, accused is defence less, therefore, above stated judgment is of no help to the accused, herein.
19. In the instant matter, the victim/ complainant/ prosecutrix was consistent throughout her testimony and all these pieces of evidence such as mobile phone, CCTV footage and metro card or token would have corroborated the version of the complainant, however, court has to look for corroboration only when there are sufficient reasons for not accepting the FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.14 to 21 version of the prosecutrix, on its face value.
20. In this regard, we may refer to the judgment of in the case of State of Rajasthan Vs. N.K. (2000) 5 SCC 30, in which the Hon'ble Supreme Court has observed :
"A plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the Courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.
In State of Rajasthan Vs. Biram Lal, reported at (2005) 10 SCC 714, the Hon'ble Supreme Court has held that if the sole testimony of the prosecutrix is free from blemish and implicitly reliable, then a conviction can be recorded on that basis. It was observed as follows:
"It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction."
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.15 to 21 In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 Hon'ble Apex Court pointed out that:
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?"
21. In case titled as Sri Narayan Saha and Ors. Vs. State of Tripura (2004) 7SCC 775 Hon'ble Apex Court has held that:
" A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Indian Evidence Act, 1872 (in short "The Evidence Act') nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to S. 114 which requires it to look for FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.16 to 21 corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessary depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
22. In the case at hand also, prosecutrix has no motive to falsely implicate the accused. Furthermore, accused has not raised any specific defence. Accused has simply stated that he has been falsely implicated by the complainant. However, accused stood defenseless and has failed to disclose as to why the complainant would falsely implicate him, when admittedly, complainant did not know him and there was no motive, relationship, acquaintance, acrimony or any other reason due to which complainant/ victim would institute complaint against the accused.
23. In the present matter, accused has only tried to take benefits of the fact that IO has not collected the corroborative evidence. However, there exists no circumstances which cast a shadow of doubt over the veracity of an unimpeachable testimony of the complainant.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.17 to 21 In this regard, it will be appropriate to quote that in case titled as State of Karnatka Vs. K. Yarappa Reddy AIR 2000 SC 185, the Hon'ble Supreme Court of India has held that:
If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case.
24. In view of the above appreciation of the evidence and discussion all the ingredients of the offence punishable u/s 354D IPC are fulfilled in the present matter. The fact remains that there is no motive or reason shown for the false implication of the accused; testimony of the victim/complainant is found to credible and trustworthy; accused has been arrested from the spot immediately after the incident; FIR has been registered on the same day FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.18 to 21 without any delay. All these circumstances, factors and blemish free testimony of the complainant points out to the only conclusion that the accused has committed the offence in question. Accordingly, accused Akbar Malik is hereby, convicted for the offence punishable u/s 354D IPC.
Let the convict be heard on the point of sentence on 29.04.17.
25. Before parting with this judgment, this court deems it appropriate to note that in the present matter, IO (Investigating Officer) has completely failed to discharge his duties by not collecting the corroborative evidence. Though, accused has been convicted on the basis of direct ocular testimony of the complainant/ victim which was found to be reliable, cogent and unimpeachable. However, IO was duty bound to collect the corroborative evidence too. IO should be made to explain as to why he did not seize the phone of the accused, although victim has clearly deposed that she saw the flash light and also heard the sound of camera, while accused was clicking her photographs. Victim/ prosecutrix in her statement U/s 164 Cr.PC Ex.PW1/B which was recorded before the Ld. MM, has stated that police came and checked CCTV footage in which it was found that accused was clicking her photograph. Phone would have been seized and sent to CFSL and the photographs of the victim could have been retrieved.
In his deposition, IO has admitted that CCTVs Camera are installed in the said Metro Station. However, he had not collected any CCTV footage of the said incident. IO should explain as to why he did not collect the CCTV footage despite its availability? Furthermore, victim gave a written complaint of the incident and she has also mentioned two mobile numbers in that written complaint stating that she has been receiving odd messages on her phone from two unknown mobile numbers i.e. 8750757518 FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.19 to 21 and 9999884475 and that she has every apprehension that accused and his friends have been sending these odd SMSs to her. However, IO has not conducted any investigation in this regard; he did not investigate about the registration of these mobile numbers and has not made any efforts for obtaining any details or CDR or messages of the specific phone numbers provided by the complainant/victim.
26. Section 2(h) of the Code Of Criminal Procedure, 1973 defines investigation : Investigation includes all the proceedings under this code, for the collection of evidence, conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
Investigation is done for the purpose of collection of evidence. However, it seems that IOs are acting completely in flagrant violation of this definition. The purpose of the investigation is not to collect the evidence which suits or assists the prosecution or to collect the evidence, which is readily available.
The purpose of investigation or in fact, of the entire criminal justice system is to find out the truth. IO has to be fair and his duty is to bring out the real unvarnished truth. IOs should keep in mind that a Criminal Trial affects the life and liberty of an individual and human rights are involved at each and every stage of Criminal Trial. However in many cases, Chargesheets are being filed without proper investigation, especially in cases related to Crime Against Women. No efforts are being made by the IOs, to bring out the truth on record. Due to lapses on the part of the IO, in many cases where the wrongdoer ought to be punished may go unpunished and viceversa i.e. an innocent person may have to face the ordeal of trial just because of callous attitude of the IOs towards investigation.
FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.20 to 21
27. It is hereby clarified that observations made in Para No.25 and 26 do not affect the merits of the present matter as the accused has been convicted on the basis of direct, cogent and credible testimony of the complainant/ victim.
A copy of this judgment be sent to the DCP concerned for taking appropriate action against the IO of the present case and also to the DCP, Crime Against Women (CAW) Cell, DCW for sensitizing the IOs to do proper investigation in each and every case.
Announced in Open Court (Surabhi Sharma Vats)
on 22nd day of April, 2017 MM(Mahila Court01/East/
KKD Courts/Delhi/22.04.2017
This judgment contains 21 pages and each page bears my signature.
(Surabhi Sharma Vats) MM(Mahila Court01/East/ KKD Courts/Delhi/22.04.2017 FIR No. 49/13 PS Y.D. Metro State Vs. Akbar Malik Page No.21 to 21