Delhi District Court
Mohd. Zakir vs The State (Nct Of Delhi) on 7 May, 2015
Crl. Appeal No. 37/14 D.O.D.: 07.05.2015
IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS
JUDGE04 (NORTH): ROHINI COURTS: DELHI
Criminal Appeal No.: 37/14
Unique Case ID: 02404R0417552014
Mohd. Zakir
S/o Mohd. Hanif
R/o Khasra No. 486, Gali No. 2,
DBlock, Rajiv Nagar,
Bhalswa Dairy, Delhi ...Appellant
Versus
The State (NCT of Delhi) ....Respondent
Date of Institution : 19.12.2014
Date on which Order was reserved : 27.04.2015
Date on which Order pronounced : 07.05.2015
JUDGMENT
1. The present appeal is directed against the judgment dated 19.11.2014 and order on sentence dated 27.10.2014 passed by Ld. MM Rohini Cours, Delhi, whereby the appellant has been convicted for the offences punishable U/s 354/509/34 IPC and has been sentenced to simple imprisonment for a period of two years.
2. Filtering unnecessary details, the case of prosecution as per charge sheet was that on 21.03.2011 at about 5.15 P.M in front of D26, Khasrs no. 434, Gali no. 6, Rajiv Nagar, Bhalaswa Dairy, Delhi within the Mohd. Zakir Vs. State Page 1 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 jurisdiction of PS Bhalswa Dairy, the convict/appellant herein in furtherance of his common intention with co accused Yogesh and Sharda Prasad Dubey, uttered filthy abuses within the hearing of complainant namely " R" (identity of complainant is deliberately being withheld) with intention to outrage her modesty. After carrying out necessary investigation, chargesheet was filed before the court of Ld. M.M.
3. In support of its case, prosecution examined six witnesses namely PW1 Ms. Rita Yadav, PW2 Wct. Rasal Meena, PW3 Ct. Amit, PW4 Ct. Narender Tiwari, PW5 HC Dharambir Singh and PW6 SI Vikas out of whom PW1 i.e. "R" was the star witness relied by the prosecution whose modesty was allegedly insulted.
4. After considering the evidence available on record and dealing with the rival submissions made on behalf of both sides, Ld. M.M. came to the conclusion that prosecution has been successful in establishing the guilt of the appellant in respect of offences punishable U/s 354/509/34 IPC and convicted him accordingly.
5. The impugned judgment has been challenged by convict/appellant mainly on the grounds that charge did not stand proved and the testimony of PW1 has not been properly appreciated by Ld. Trial Court while convicting the appellant and also that there was no sufficient evidence to connect them with the offence for which he has been convicted in this case.
6. Ld. counsel of appellant vehemently argued that the prosecution did not produce any independent witness during trial and in the Mohd. Zakir Vs. State Page 2 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 absence of independent corroboration of the testimony of PW1, Ld trial Court ought not to have convicted the appellant in this case. He further submitted that there is material improvement made by PW1 during chief examination visavis her police statement and the said fact has been lost sight of by the Court below while convicting the appellant. Therefore, the impugned judgment and the order on sentence are liable to be set aside.
7. Before dealing with the submissions made on behalf of both the sides, it may be noted here that the prosecution had sent three accused persons namely Yogesh, Sharda Prasad Dubey and Mohd. Zakir to face the trial in the court of Ld. MM. After conclusion of trial, the present appellant namely Mohd. Zakir stood convicted for the offences punishable U/s 354/509/34 IPC while other two accused persons stood convicted for the offence punishable u/s 509/34 IPC vide judgment dated 19.11.2014 passed by trial court.
8. It is also pertinent to note that convicts Yogesh and Sharda Prasad Dubey had also preferred separate appeal against the judgment dated 19.11.2014 and subsequent order on sentence dated 21.11.2014 and the said appeal has also been dismissed by this court on 20.04.2015.
9. I have carefully gone through the evidence led by the prosecution before Ld. Trial Court more particularly the testimony of the prosecutrix i.e. PW1. The said witness has been categorical in her deposition made during trial that the appellant herein along with co accused namely Yogesh and Sharda Parsad Dubey, used to chase her on daily basis as and when she used to leave the house for her office. They Mohd. Zakir Vs. State Page 3 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 also used to remain near shop as and when she used to return back from her duty. She also deposed that one day before the date of incident, when there was festival of Holi, the present appellant alongwith coaccused namely Yogesh and Sharda Parsad Dubey alongwith 34 more boys came to her house and abused her. On the date of incident at about 5.15 pm, appellant herein as well as coaccused Rinku @ Sharda Parsad came to her house and started abusing her. In her cross examination, she explained that all the accused persons including appellant were already known to her as they were residing in the same locality. She successfully withstood the test of cross examination and nothing material could be elicited from her cross examination which may discredit her testimony.
10. Remaining prosecution witnesses i.e. PW2 to PW6 deposed about the relevant investigation carried out in this case. All of them also deposed on the lines of prosecution story as propounded in the charge sheet and duly corroborated each other. The appellant could not impeach their testimonies through litmus test of cross examination.
11. The prosecutrix i.e. PW1 stated in the police statement Ex PW1/A that the present appellant initially gave filthy abuses to her and when she came outside her house and enquired as to why he was abusing her, he caught hold of her hand with ill intention and pulled her towards him and misbehaved with her. Even while entering into witness box, she reiterated those facts by testifying on oath the appellant not only abuse her on the date of incident but had also caught hold of her hand and tried to embrace her in his arms. No effective cross examination has been Mohd. Zakir Vs. State Page 4 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 conducted from the side of appellant on said aspects during cross examination except putting simple suggestions that he neither misbehaved with her nor caught hold of her hand.
12. In view of the categorical deposition made by PW1, it stands duly established on record that the appellant had used criminal force against prosecutrix namely " R" (PW1) with intention to outrage her modesty. Thus, all the necessary ingredients of the offence punishable U/s 354 IPC were fulfilled in this case. Likewise, it has also been duly proved beyond doubt that the appellant in furtherance of his common intention with co convicts, had also uttered filthy language against her with the hearing of said prosecutrix and thereby committed the offence punishable U/s 509/34 IPC.
13. I do not find any merit in the contention raised on behalf of appellant that in the absence of independent corroboration to the testimony of prosecutrix (PW1), conviction cannot be recorded against the accused. It is well settled law that it is the quality of evidence which is relevant and not the quantity of evidence.
14. At this juncture, it is appropriate to refer to the provision contained in Section 134 of Indian Evidence Act which expressly provides that no particular number of witness shall in any case be required for proving any fact. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: "Courts are concerned with the quality and not quantity of Mohd. Zakir Vs. State Page 5 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence".
15. In the matter titled as "Takdir Samsuddin Sheikh Vs. State of Gujarat and Anr." reported at (2011) 10 SCC 158, it has been observed as under: "(i) While appreciating the evidence of witness considering him as the interested witness, the Court must bear in mind that the term 'interested' postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason.
(ii) This Court has consistently held that as a general rule the Court can and may act on the testimony of a single 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, the Court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a Competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
16. There is no force in the next limb of argument that there is vast improvement made by prosecutrix i.e PW1 in her testimony recorded during trial visavis police statement Ex.PW1/A made before the police. Mohd. Zakir Vs. State Page 6 of 9
Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 No doubt, there is some sort of minor contradiction/improvement found appearing in the testimony of PW1 but same is of trivial nature and does not go to the root of the case of prosecution. Rather, the testimony of PW1 is found to be plain, natural and trustworthy having a ring of truth in it. Even otherwise, the appellant failed to show as to why the prosecutrix would level false allegation against him. Although, Ld counsel of appellant vehemently argued that the prosecutrix lodged false complaint against appellant and his friends i.e coaccused persons due to inimical terms as the father of prosecutrix had quarrelled with them one day prior to the date of incident in question but said argument does not hold any ground as neither any such suggestion was given from the side of appellant during cross examination of PW1 nor the said appellant took any such defence either during cross examination of prosecution witnesses or even in his statement U/s 313 Cr.P.C. He also failed to lead any evidence in his defence for proving the same.
17. Moreover, it would be anybody's guess as to why police officials would falsely implicate the appellant in any such criminal case. If the convict/appellant wants this Court to believe that he has been implicated falsely, the least which was expected from him was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to the witnesses. The appellant/convict cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason Mohd. Zakir Vs. State Page 7 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 should have been put forth by him to suggest as to what could have been motive of the police in falsely implicating him. In the absence of this, this court does not find any reason to differ with the view taken by trial court or to throw out the testimonies of prosecution witnesses examined during trial.
18. After considering the evidence including ocular evidence and documentary evidence as available in the trial Court record, this Court does not find any illegality or infirmity or impropriety in the impugned judgment of conviction handed upon the appellant who has been rightly convicted in respect of offence punishable u/s 354 IPC as also for the offence punishable U/s 509/34 IPC. Consequently, the impugned judgment dated 19.11.2014 passed by Ld. M.M. is hereby affirmed.
19. This brings me down to the quantum of sentence imposed upon the appellant. Ld. Counsel of appellant requested for taking lenient view against the appellant on the ground that he is the sole bread earner of his family. The family of appellant Mohd. Zakir stated to be consisting of his widow mother and one elder brother. He also submitted that the appellant has not been previously convicted in any other case.
20. The convict/appellant is not shown to be previously involved or convicted in any other criminal case. The family circumstances of convict/appellant as disclosed before the Court have also not been disputed from the side of prosecution.
21. Under the aforesaid facts and circumstances, Court is of the view that no useful purpose would be served by sending the appellants behind the jail as in such an eventuality, their entire family would be ruined Mohd. Zakir Vs. State Page 8 of 9 Crl. Appeal No. 37/14 D.O.D.: 07.05.2015 and their future carrier would also be jeopardized. Moreover, Court is also of the view that both the said appellants should be given an opportunity to reform themselves and to join mainstream of the society.
22. Having regard to the entire mitigating factors and aggravating factors involved in the case, interest of justice would be met by awarding imprisonment till rising of the Court besides fine amount of Rs. 7000/ in respect of offence punishable U/s 354 IPC as also in respect of offence punishable U/s 509/34 IPC. The appellant shall also be entitled to benefit of Section 428 Cr.PC. It is ordered accordingly. In default of payment of fine, the appellant shall undergo SI for a period of three months. Fine deposited. Out of the fine so realized, a sum of Rs. 6500/ be released in favour of victim/prosecutrix after the expiry of period of appeal or in terms of the directions issued by Appellate Court/Superior Court in case the judgment passed by this Court is challenged by either of the sides, as per rules. The prosecutrix/victim be informed accordingly as per rules. The appeal stands disposed off accordingly. Trial Court record be sent back alongwith copy of this judgment as per rules. Copy of this judgment be given free of cost to the appellant as per rules. Appeal file be consigned to Record Room.
Announced in open Court today
On 07.05.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
Mohd. Zakir Vs. State Page 9 of 9