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Delhi District Court

State vs Atul Prakash on 15 February, 2023

          IN THE COURT OF PRAVEEN KUMAR,
       PRINCIPAL DISTRICT AND SESSIONS JUDGE,
      NORTH-EAST, KARKARDOOMA COURTS, DELHI

                                            Crl. Appeal No.53/2022
                                      CNR No. DLNE01-001948-2022
In the matter of:
State
Through Public Prosecutor,
North-East, Karkardooma Courts,
Delhi.                                ......... Appellant

Versus

Atul Prakash
S/o Late Sh. Balram
R/o H. No. B-139/2,Gali No. 10,
1st Pushta, New Usmanpur,
Delhi.                               ...........Respondent

Date of registration of appeal:                      01.0.7.2022
Date when appeal was received by this Court:         02.07.2022
Date of conclusion of arguments:                     15.02.2023
Date of pronouncement of judgment:                   15.02.2023

Memo of appearance:
Sh. Zenul Abedeen, Ld. Chief Prosecutor for the appellant-State.
Sh. H. S. Singh, Ld. Counsel for the respondent.

JUDGMENT (ORAL):

1. This is an appeal against the judgment dated 20.04.2022 passed by Ld. Metropolitan Magistrate, North East District, Karkardooma Courts, Delhi whereby respondent has been acquitted for committing offences punishable under Sections 354A/506/509 of the Indian Penal PRAVEEN Code, 1890 (in short 'the IPC'). KUMAR Digitally signed by

2. For the sake of convenience, the appellant would be referred to PRAVEEN KUMAR Date: 2023.02.15 14:00:39 +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 1/10 as the 'prosecution' and respondent as 'accused' as per their nomenclature before the Trial Court.

3. Trial Court record has been requisitioned. BRIEF FACTS:

4. Briefly stated, the case of the prosecution is that on 05.07.2013, complainant 'X' (name withheld in order to conceal her identity) made a complaint to the effect that accused resided in her neighbourhood when she used to live at B­139/2, Gali No.10, 1st Pushta, New Usmanpur, Delhi. Accused used to pass lewd comments upon her particularly in the absence of her husband. After sometime, complainant shifted to H. No. T­20, Gali no.8, Gautam Puri, Delhi. On 02.07.2013, while complainant along with her son was going towards her house, accused met her on the way and uttered obscene words to her. Accused caught hold of complainant's hand and tried to misbehave with her. When she tried to escape, accused threatened to kill her, her husband as well as her son in case she disclosed anything about the incident to her husband. After 2­3 days, complainant informed her husband about the aforesaid incident who took her to the police station where she made a written complaint on 05.07.2013. On the basis of the said complaint, FIR No.218/13 under Sections 354A/506/509 IPC was registered against the accused at PS New Usmanpur.

FINDINGS OF THE TRIAL COURT:

5. The Trial Court vide order dated 05.02.2015 framed charge PRAVEEN KUMAR against the accused for commission of offences punishable under Digitally signed by PRAVEEN KUMAR Date: 2023.02.15 14:00:56 +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 2/10 Sections 354A/506/509 IPC to which he pleaded not guilty and claimed trial. The prosecution, in support of its case, examined seven witnesses. On 03.09.2021 statement of accused under Section 313 Cr.

P.C was recorded wherein he preferred to lead defence evidence and examined himself as DW1 and his mother Smt. Gyatri Devi as DW2. Vide order dated 03.03.2022, D.E was closed and after hearing the final arguments, the trial court acquitted the accused vide its judgment dated 20.4.2022 holding that in the absence of any cogent evidence, the prosecution has not been able to prove its case against the accused beyond reasonable doubt.

6. Feeling aggrieved by the impugned judgment, the prosecution has preferred the present appeal.

ARGUMENTS:

7. I have heard Sh. Zenul Abedeen, Ld. Chief Prosecutor for the State and Sh. H. S. Singh, Ld. Counsel for the accused. It is contended by Ld. Chief P.P that the Trial Court has wrongly concluded that there are material contradictions in the testimony of PW1­complainant. Secondly, it is contended that delay in lodging the FIR is not material to the prosecution case as the same has been sufficiently explained. Thirdly, it is contended that Trial Court failed to appreciate the fact that PW3­Raj Kumar and PW4­Yashwant Raj, who are husband and son of the complainant respectively, have completely corroborated her version. Fourthly, it is contended that Trial Court failed to appreciate Digitally the fact that DW1­accused and/or his mother DW2 Gayatri Devi never signed by PRAVEEN PRAVEEN KUMAR KUMAR Date:

2023.02.15 14:01:09 filed any complaint against the husband of PW1­complainant in +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 3/10 respect of their alleged defence that husband of complainant illegally took their motorcycle and demanded Rs.25,000/­ to get the ownership transferred in the name of the mother of the accused. Lastly, it is contended that no medical document has been proved by the accused that her mother was bed ridden on 2.7.2013 and/or he was present with her at home. It is prayed that the appeal be allowed and the impugned judgment dated 20.04.2022 passed by the trial court be set aside.

8. Per Contra, Ld. counsel for the respondent has contended that there is no infirmity in the impugned judgment passed by the Trial Court. Appellant was falsely implicated in this case and the testimony of the complainant, her husband and her son are not trustworthy and reliable. The complainant has falsely implicated the accused in the present case due to monetary dispute between the parties with respect to a motorcycle which was purchased by mother of accused in the name of complainant's husband prior to the alleged incident. The husband of complainant refused to transfer the aforesaid motorcycle in the name of mother of accused even after entire payment was made. It is prayed that the appeal be dismissed.

ANALYSIS AND FINDINGS:

9. I have gone through the file as well as the Trial Court record.

10. There are contradictions and omissions in the testimony of witnesses. There is a contradiction in the complaint made by the complainant to the Police on 5.7.2013 and her statement recorded u/S 164 Cr.PC before Ld. MM. In her complaint, she has stated that out of Digitally signed by fear she did not disclose the incident to her husband on the same day PRAVEEN PRAVEEN KUMAR KUMAR Date:

2023.02.15 14:01:20 and also restrained her son from doing so. However, in her statement +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 4/10 recorded under Section 164 Cr.P.C, she has categorically stated that she had disclosed about the incident to her husband after reaching home. In her cross-examination before the Court, she has stated to the effect, "It is correct that I had stated in my statement under Section 164 Cr.P.C that I had told about the incident to my husband after coming my house."

11. Though not referred to or relied upon, it has been held by the Apex Court in judgment ­ Dilawar v. State of Delhi, 2007 Cri.LJ 4709, that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report.

Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications.

12. In the present case, complainant and accused were known to each other as they were neighbours. In her cross­examination, PW1 has admitted that they had friendly relations with the family of the accused. Husband of the complainant had also made several complainants against the accused prior the alleged incident on 2.7.2013. Said complaints have been relied upon by him as Mark A, B and C. These complaints are dated 6.6.2012, 10.09.2012 and 5.6.2013. Thus, there appears to be enmity between the parties prior to the alleged incident. A perusal of these complaints shows that in these complaints, the allegations of threat of murdering the husband of the complainant and their child have been levelled.

PRAVEEN

13. In these circumstances, the incident allegedly taken place on KUMAR Digitally signed by PRAVEEN KUMAR 2.7.2013 cannot be said to have frightened the complainant to such an Date:

2023.02.15 14:01:37 +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 5/10 extent that she disclosed about the incident to her husband after 3 days. The testimony of the complainant explaining the delay in lodging the FIR does not inspire confidence.

14. Besides that, in complainant's statement dated 6.7.2013 recorded u/S 164 Cr.PC, she did not state to Ld. MM that she got frightened by the threat extended by the accused and also asked her son to remain mum about the incident. In her statement u/S 164 Cr.PC, she merely stated that accused threatened her to the effect "vo mujhe dekh lega." However, in her deposition before the court, she has stated that accused threatened her that he would kill her husband and her child in case she complained about the incident. Thus, aforesaid fact points to contradiction and improvement in the testimony of PW1-complainant. For an offence u/s 506 IPC, threat must be with an intention to cause alarm to the person threatened. Mere expression of words without any intention to cause alarm would not be sufficient to bring in the application of Section 506 IPC. There is nothing on record that any alarm was caused to the complainant. Complainant has not stated that accused was carrying any weapon at the time of alleged incident. Though not referred to or relied upon, for taking this view I am supported with the judgment- Amitabh Adhar Vs. NCT of Delhi, 2000 (56) DRJ 220.

15. PW3 Rajkumar and PW4 Yashwant Kumar are husband and son of the complainant respectively. In his cross-examination, PW4 who was a minor at the time of alleged incident, could not tell from where he was coming with his mother at the time of the alleged Digitally incident. PW1, PW3 and PW4 have merely deposed that accused used signed by PRAVEEN PRAVEEN KUMAR KUMAR Date:

2023.02.15 14:01:48 filthy language. However, they have not whispered even a single +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 6/10 'word' or 'sentence' of the filthy language in their depositions before the Court. It casts a doubt in the story of the prosecution.

16. The accused has taken defence that his mother had purchased a motorcycle which was in the name of complainant's husband namely Rajkumar. Further, at the time of last installment when mother of accused asked complainant's husband to transfer the aforesaid motorcycle in her name, he refused to do the same and rather threatened her to implicate the accused in a false case. DW2 Gayatri Devi, who is mother of the accused, in her statement has reiterated the aforesaid defence of accused. She has proved certain documents vis.

gate pass dated 15.10.2010 as Ex. DW2/P1, cash receipt Ex. DW2/P2 dated 15.10.2010, service bill Ex. DW2/P3 dated 08.11.2010, job card no. 883 Ex. DW2/P4 dated 29.08.2011 and battery bill Ex. DW2/P5 dated 08.09.2011. If the bike belonged to PW3 Rajkumar, how these documents came in the possession of the mother of the accused raises a question which has remained unanswered during the trial. The possibility of dispute between the parties prior to the alleged incident cannot be negated in view of the documents proved by the DW2. It is settled law that in criminal trial, the burden of proof rests upon prosecution to prove its case beyond all reasonable doubts which the prosecution has failed to discharge in the present case.

17. Though not referred to or relied upon, in State of Rajasthan vs. Shera Ram, (2012) 1 SCC 602, the Apex Court explained the scope of interference with a judgment of acquittal by the appellate Court. The relevant para of the said judgment is reproduced as under:

"A judgment of acquittal has the obvious Digitally signed by consequence of granting freedom to the accused.

PRAVEEN PRAVEEN KUMAR KUMAR Date:

This Court has taken a consistent view that unless 2023.02.15 14:01:58 +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 7/10 the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the Court of competent jurisdiction keeping in view the settled cannons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal."

(Emphasis mine)

18. In criminal cases, while dealing with appeals against acquittals, the appellate court has to be alive to the circumstance that a finding of innocence by the trial court is the affirmation of the badge of innocence which every citizen is entitled to, under our law. It should not be lightly interfered, except for substantial and compelling reasons. Though not referred to or relied upon, as to what constitute such reasons, it has been spelt-out in Chandrappa. vs. State of Karnataka, (2007) 4 SCC 415, as under:

"In the light of the above, the appellate court should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal :

(I) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has 'very substantial and compelling reasons" for doing so. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice"'

(iv) The entire approach of the trial court in dealing with the evidence as patently illegal;

PRAVEEN KUMAR

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.

(vii) This list is intended to be illustrative, nor exhaustive.

(II)The Appellate Court must always give proper weight and consideration to the findings of the trial court.

(III) If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the appellate courts must rule in favour of the accused. (Emphasis mine)

19. Though not referred to or relied upon, recently Apex Court has held in judgment-Ravi Sharma Vs. State, Crl. Appeal no.411/2015, decided on 11.07.2022, that the appellate court should be slower in reversing the order of acquittal rendered by the Court of first instance. The relevant para of the said judgment is reproduced herein-below:

"...All the aforesaid aspects have been considered threadbare by the trial Court. We do not find any perversity in it and the law presume double presumption in favour of the accused after a due adjudication by the trial Court. We do believe that the High Court could have been slower in reversing the order of acquittal rendered by the Court of First Instance..." (Emphasis mine)

20. The Trial court after discussing the evidence came to the conclusion that statements of the PW1, PW3 and PW4 do not inspire confidence. The view taken by the Trial Court is based on the material on record and it cannot be said that the view taken by it is contrary to evidence, palpably erroneous or a view which could not have been PRAVEEN KUMAR taken by the Court. Therefore, it will not be proper to disturb the Digitally signed by PRAVEEN judgment passed by the Trial Court.

KUMAR Date: 2023.02.15 14:02:17 +0530 Crl. Appeal No.53/22 State Vs. Atul Prakash Page 9/10 CONCLUSION:

21. In view of the above discussion, I do not find any illegality or impropriety in the impugned judgment dated 20.04.2022 passed by the Trial Court. The present appeal has no merit. Hence, the same is dismissed. The bond submitted by the accused at the time of acquittal by the trial court shall further remain in force u/S 437A Cr.PC for a period of six months from the date of this judgment. Trial Court record be sent back along with copy of this judgment. Appeal file be consigned to the Record Room. Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date:

2023.02.15 14:02:26 +0530 Announced in open (Praveen Kumar) court today i.e on 15.2.2023. Principal District & Sessions Judge, North East, karkardooma Courts, Delhi.