Delhi District Court
Krishan vs State on 1 April, 2022
IN THE COURT OF MANOJ JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH -WEST DISTRICT, DWARKA COURTS
NEW DELHI
CA No. 214/2020
CNR No. DLSW01-008500-2020
Krishan
S/o Heera Lal,
R/o Jhuggi No. 344,
Sonia Gandhi Camp,
Samalkha, Delhi
.....Appellant (convict)
Versus
State
.....Respondent
AND
CA No. 215/2020
CNR No. DLSW01-008501-2020
Kamal
S/o Sohan Lal,
R/o Jhuggi no. 344,
Sonia Gandhi Camp,
Samalkha, Delhi
.....Appellant (convict)
Versus
State
.....Respondent
Date of Institution of appeals : 24.11.2020
Date of conclusion of arguments : 22.03.2022
Date of pronouncement of judgment : 01.04.2022
CA No. 214/2020 Krishan Vs. State
CA No. 215/2020 Kamal Vs. State Page 1 of 15
Memo of Appearance:
Sh. Vipin Sehrawat, learned counsel for the appellant.
Sh. V.K. Swamy, learned Addl. PP for the State.
JUDGMENT:
1. By this common judgment, I propose to dispose of both the aforesaid connected appeals. Both the appellants faced trial for commission of offences under Section 354-B/323/341/34 IPC in FIR No. 186/2014 PS Kapashera. They both have been held guilty, vide common judgment passed by the court of Ms. Shivani Chauhan, Ld. MM (Mahila Court), South-West and have been sentenced as under:
i. For offence u/s 354B/34 IPC: SI for three years and a fine of Rs. 2000/-. in default of payment of fine to undergo SI for 10 days. ii. For offence u/s 323/34 IPC, SI for three months. iii. For offence u/s 341/34 IPC, SI for one month.
2. Let me first give a very brief factual matrix of the case.
3. One DD No. 15 A dated 29.04.2014 was recorded at PS Kapashera on the basis of a telephonic call regarding a scuffle with a lady. Police swung into action and complainant/injured (her identity is being withheld) was contacted. She narrated to the police that on 29.04.2014 at about 12:50 noon, she was going to drop her son, aged about 7 years to school. Both the accused as well as three others (names of such three others are withheld as they were found to be minor) were already present in the street outside. She noticed that they all had stopped her daughter, CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 2 of 15 aged 11 years and prevented her from moving anywhere. When she came for rescue of her daughter, all the accused caught hold of her and forcibly started taking her to the room of accused Kamal with intention to rape her. They tore down her clothes. She was, however, able to save herself from their clutches with lot of difficulty. When she was fleeing away, accused Kamal gave danda blows on her head, back and hands. PCR vehicle brought her to Safdarjung Hospital and it was, in those circumstances that the FIR was registered.
4. Investigation was carried out and as far as both the appellants herein are concerned, i.e. appellant Kamal and appellant Kishan, they were charge-sheeted for commission of offences under Section 354-B/323/341/34 IPC. Both the accused were charged under Section 354/354-B/34 IPC, 323/34 IPC and 341/34 IPC. They both pleaded not guilty and claimed trial.
5. As per charge-sheet, three other named offenders were produced before the Juvenile Justice Board (JJB) as they were found to be minor.
6. Prosecution examined five witnesses. Statements of both the accused were recorded under Section 313 Cr.P.C. They pleaded that no such incident took place and that they had been falsely implicated. They also desired to lead evidence in defence. Fact, however, remains that they did not eventually lead any evidence in defence.
7. I have heard Sh. Vipin Sehrawat, Ld. Counsel for the appellant, Sh. V. K. Swamy, Ld. Addl. PP for the State as well as perused CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 3 of 15 the trial court record.
8. Sh. Vipin Sehrawat, Ld. Counsel for the appellant has assailed the prosecution case and challenged the judgment of conviction as well as order on sentence on, inter-alia, following grounds:-
a) The complainant was tenant of the appellants and there was outstanding rental dues and since she did not want to clear those dues, she has falsely implicated them to wriggle out of her said civil liability.
b) The complainant, in connivance with her daughter, has lodged many FIRs against the appellants and that several other litigations are going on between the parties which also clearly indicate ulterior motive on the part of complainant and hollowness in the case of prosecution.
c) Story of prosecution is hardly believable as the alleged incident had taken place in broad-day light in the busy/crowded street and despite that prosecution could not catch hold of any independent witnesses. If at all, any such incident would have happened, it must have been witnessed by many residents of the locality.
d) Non-joining of independent witnesses/public witnesses reflects adversely on the veracity of the prosecution case.
e) The prosecution story is far-fetched because if five persons catch hold of a lady, it would not have been possible for her to have fled away in the manner as projected by the prosecution.
f) No scientific evidence was attempted to be collected. No call detail CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 4 of 15 record (CDR) of any of the parties was taken during investigation.
g) Ld. Trial court did not take note of the fact that false implication was on account of previous rivalry as has been admitted by the prosecution witnesses also.
h) Had the complainant been caught in the manner projected by the prosecution, she would not have been able to escape with superficial bruise injuries.
9. All such contentions have been refuted by Sh. V.K Swamy, Ld. Addl. PP for the State. He has contended that there is no reason, whatsoever, to discard the testimony of complainant and her children. According to him, previous enmity supplies motive also and, therefore, defence cannot dig out any advantage from the fact that there was previous dispute between the parties. He has also contended that the testimony of prosecution witnesses is of sterling quality and they have withstood the test of cross-examination and there is no reason to disbelieve them at all. As regards independent witness, Sh. Swamy has contended that non-joining of independent witness, by itself, does not become fatal, particularly keeping in mind the fact that in such type of private matters, generally, there is reluctance on part of public persons to associate themselves with police investigation.
10. I have given my thoughtful consideration to the rival contentions and carefully perused the trial court record.
11. As already noticed above, prosecution has examined five CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 5 of 15 witnesses. Testimony of PW1 complainant, PW-2 (son of complainant), and PW-3 (daughter of complainant) happens to be most material and vital.
12. Complainant has deposed that when she was going to drop her son to school at about 1 pm when accused persons were standing in their gali at Sonia Gandhi Camp, Samalkha. She deposed that her way was obstructed and they caught hold of her and dragged her to Kamal's house saying that they would rape her. She also deposed that Kamal, Krishan and one more named accused tore her clothes with intention to rape her. She also claimed that they tried to lock the door but she managed to prevent them from locking the door and managed to get out of the room. She also claimed that when she was at the threshold, accused Kamal hit her with danda on her head, back and arms. She claimed that her son ran and informed the police and PCR van came at the spot and she was taken to Safdarjung Hospital. She has proved her statement Ex. PW1/A. She also deposed that she had handed over her torn clothes to the police, which were seized vide memo Ex. PW1/B. Case property was also produced during the recording of her testimony and she identified the same. She also correctly identified both the accused. One bamboo stick, alleged to be weapon of offence was also shown to her, but she claimed that it was not the one which had been used by accused.
13. I have seen the cross-examination of complainant. It was suggested to her that accused persons had attacked/misbehaved with her due to previous confrontation. This bizarre suggestion lays bare the stance of the accused persons. It clearly implies that not only accused admit that they were very much present at the spot, they also admit that CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 6 of 15 they attacked/misbehaved with her. Of course, they claim that they did so on account of previous hostility. Mere fact that there was previous rivalry between the parties would not supply any reason to anyone to take law into one's own hands and to attack or misbehave with other. Faced with the aforesaid suggestion put by the defence, minor contradictions appearing on record, would not gather any real mass. Undoutedly, defence can take alternate pleas but the aforesaid suggestion put to the complainant is absolutely unambiguous and goes on to indicate that accused persons have no qualm with respect to their presence at the spot and also about the fact that they had hit the complainant and misbehaved with her.
14. In her further cross-examination, she admitted that 15-20 people had gathered at the spot after listening her cries. She claimed that no one came forward to help her. Interestingly, it was also suggested to her that accused Kamal was not present at the spot or that he was in Ghaziabad. Thus, as far as accused Kamal is concerned, he has apparently taken a plea of alibi also. Therefore, it was for him to have proved the same in the desired manner. Mere putting a suggestion to such effect would not take his case anywhere particularly when in the initial suggestion, he did not dispute his presence at the spot. Moreover, when accused Kamal was examined under Section 313 Cr.P.C., he did not utter even a single word about his being away to Ghaziabad. He merely denied his involvement claiming that no such incident took place and that he had been falsely implicated. He desired to lead evidence in defence but fact remains that he did not enter into witness box and, therefore, his plea of alibi falls flat.
CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 7 of 15
15. I have seen MLC of complainant which has been proved as Ex. PW4/A. She was brought to Safdarjung Hospital, New Delhi on 29.04.2014 on 2.35 PM when she was examined by the doctor in the casualty. Her clothes were torn as per the history given by the injured. Though she narrated in the hospital also that she was attempted to be raped by 4-5 persons but fact remains that she refused to undergo any gynecological examination. One bruise on right side of her forehead was noticed. The doctor also noticed redness, beating marks on spinal region and on gluteal region. Nature of injury was opined to be simple and blunt.
16. Let me briefly see the testimony of her children.
17. As already noticed above, PW2 i.e. son of complainant was accompanying his mother at the relevant date, time and place. He has deposed that they were going to his school. He further stated that his sister was coming from school. He deposed that accused were standing in the gali and accused Kamal and others obstructed the way of his sister and then his mother made her run away. He deposed that thereafter accused caught hold of his mother and dragged her inside the room of Kamal. They tore clothes of his mother and then his mother tried to escape. When his mother was escaping, she was beaten up with a danda on her back. He deposed that his mother fell down and then she was beaten up by all the accused persons. In the meanwhile, his sister had made a PCR call. He denied that they were tenants of accused persons though he admitted that accused Kamal used to call them as their tenants. He also claimed that there was no dispute between the parties, before the incident in question. He also admitted in cross-examination that gali where CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 8 of 15 incident took place was thoroughfare and it was correct that some persons had gathered there after his mother was beaten up. He also claimed that such persons were belonging to Sonia Gandhi Camp. He also claimed that police had not recovered any danda in his presence.
18. PW3, daughter of complainant has deposed that she was coming back from her school on 29.04.2014 and at about 12.55 PM, when she reached near the gali, accused were already standing there. She deposed that Kamal and others obstructed her way and such incident was witnessed by her mother and brother. She deposed that her mother made her run away from there. She then run inside her house and saw from there that all the accused had caught hold of her mother and dragged her inside the room of Kamal. She deposed that they tore clothes of her mother and beat her up with danda. In her cross-examination, she admitted that there has been dispute between them over purchase of land. She also admitted that accused used to claim that they (complainant party) were their tenants. She also claimed that it was correct that accused had committed act on the date of incident due to dispute over the aforesaid house. She also admitted that there were other litigations and cases between them. She also claimed that it was correct that accused did not chase her. She also claimed that incident took place in the gali before she reached her home. According to her, 10-15 persons had witnessed the incident. She also admitted that persons, who gathered at the spot, were residents of Sonia Gandhi Camp. She denied that she was deposing falsely.
19. Prosecution has examined PW4 Dr. Prachi Gupta, Senior Resident, Safdarjung Hospital who has merely come to depose on behalf CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 9 of 15 of concerned attending doctor i.e. Dr. Deepika. She has proved MLC Ex. PW4/A but fact remains that she has no personal knowledge as she has merely identified signature of Dr. Deepika. Fact also remains that she has not been cross-examined by the defence.
20. PW5 SI Arun Dagarj happens to be investigating officer (IO) and he has proved various facets of the investigation. He was the one who had recorded statement of injured and prepared rukka Ex. PW5/A. He had visited the spot and recorded statement of Ct. Mahender. He has further deposed that on 01.05.2014, he went to the house of complainant where complainant gave her torn suit which was seized by him vide memo Ex. PW1/B. He has also deposed about recording of statement of children of complainant and also about preparation of site plan (Ex. PW1/D) and preparation of seizure memo, personal search memos and arrest memos of accused persons. He also recorded disclosure statement of accused persons. He also claimed that accused Kamal got recovered danda used in the incident which was seized vide memo Ex. PW5/I. He also deposed that he added Section 354 IPC after discussing the matter with his senior officer. In his cross-examination, he deposed that he had reached at the spot at 1.30 PM and at that time public persons were present. He, however, did not inquire about the reason of quarrel from anyone.
21. The testimony of complainant and her children clearly establishes that the incident had taken place in which complainant was beaten up. However, the prosecution has not proved the element of intention of disrobing to the hilt. Reasons are many. Firstly, prosecution has not been able to explain as to why such alleged torn clothes were CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 10 of 15 taken into possession belatedly. If seizure memo (Ex. PW1/B) is to be believed, torn clothes were seized on 01.05.2014 by IO-SI Arun Dagar from complainant in the presence of one witness Santosh Sharma. Such witness has not been produced. Naturally, the testimony of such witness would have proved very handy and useful, though he happens to be the husband of complainant. Surprisingly, complainant does not recall whether she had signed any document at her house. The seizure of torn clothes, a vital piece of evidence, should have been very prompt and the delay in this regard seems totally unexplained. It is also not explained by prosecution as to why Santosh Sharma has not even been cited as witness.
22. I have also seen the site plan which has been proved as Ex. PW1/D. It was also prepared on 01.05.2014. Place of incident has been shown at point A which seems to be an open place in the street and not inside any house. I.O. also did not find any necessity of depicting the house of Kamal (Jhuggi No. 344) in the site plan. After all, as per complainant, she had been taken inside such house. As already noted above, as per site plan, the incident has taken place in open. This omission also cannot be brushed aside casually.
23. I do admit that public persons are generally reluctant to associate themselves with such type of matters involving police. However, some concrete efforts should have been made so that the court was fully assured, at least about the commission of offence u/s 354B IPC which invites minimum sentence of three years. The incident seems to have happened in the open only and as per prosecution witnesses, many persons had collected at the spot. In such a situation, if accused had done anything of such grave nature, the neighbours/residents of locality and the CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 11 of 15 persons who had collected at the spot would have certainly joined the investigation.
24. It also does not seem believable and credible that complainant was dragged to the house of Kamal. In such a situation, there would have been multiple bruises on her body. However, nothing of that sort came out in her MLC. It's also not convincing that daughter of complainant could witness the later part of the incident when according to her, her mother had been taken inside the Jhuggi of Kamal.
25. The evaluation of evidence of complainant and her children coupled with the suggestion put to complainant clearly establishes the presence of accused at the spot. It also stands proved that there was scuffle and both the accused, with three others, had beaten up the complainant and cause simple injuries to her. The charge of restraining the complainant also stands proved. In the scuffle and the incident of beating, the accused made assault upon a lady knowing fully well that thereby her modesty could be outraged. It seems that in the scuffle and melee, the clothes of the complainant got torn. This, however, would not mean and indicate that the accused had intention to disrobe her or that they were compelling her to be naked. Moreover, as already noted, there is no explanation as to why such torn clothes were not seized immediately. There is nothing to gather that the accused had any intention to rape. There is nothing to prove that complainant was taken inside the house of accused Kamal and that the accused tried to bolt the door from inside. No sufficient light has been thrown in this regard by the I.O. The site plan has also left vital gaps and, therefore, corroboration coming from a neutral corner would have been very helpful in proving said graver CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 12 of 15 offence u/s 354-B IPC.
26. Testimony of injured is accorded special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because any such injured will not want to let his actual assailant go unpunished. Therefore, deposition of injured person is required to be relied upon unless there are very strong reasons for rejection of his evidence. Undoubtedly, the aspect related to commission of offence under Section 354-B IPC is concerned, the same does not stand proved in the desired manner but that by itself, would not mean that the entire prosecution is required to be suspected. It is settled position of law that if one part of the statement of witness made before the Court is not found to be trustworthy then it would not mean that his entire testimony is liable to be rejected. Court is required to make an attempt to separate grain from the chaff i.e. truth from the falsehood and then to give adjudication. Maxim "falsus in uno, falsus in omnibus"
has no applicability in India. It has been held by Apex Court in Ugar Ahir & Ors. Vs. State of Vihar AIR (1965) SC 272 that said maxim was neither a sound rule of law nor a rule of practice while also observing that there would be hardly a case where evidence of any witness does not contain grain of untruth or exaggeration or embellishment and, therefore, Court is required to scrutinize the evidence carefully. The argument regarding non-collection of CDR/scientific evidence has no relevance. There is no question in this regard to the IO. Appellants have not bothered to apprise as to whose call detail records they wanted to be collected. It also does not create any doubt in the veracity of the prosecution case even if, the complainant was able to escape with simple injuries. Defence cannot be permitted to dig out any advantage of any CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 13 of 15 kind from the aforesaid fact.
27. As an upshot of my foregoing discussion, I partly allow the appeal and both the accused are held guilty for commission of offences u/s 323/341/354/34 IPC.
28. I have seen the order on sentence passed by Ld. Trial court. I have also heard Ld. Counsel for the appellant as well as Addl. PP for the State. I do feel that the Ld. Trial court has already, keeping in mind all the facts and circumstances of the case, light punishment to the appellants. Accordingly, the sentence, as awarded by Ld. Trial court for commission of offences under Section 323/34 and 341/34 IPC is maintained. However, as regards offence under Section 354 IPC, the appellants are sentenced to undergo SI for a period of one year each and also a fine of Rs. 2000/- each. In default of payment of such fine, each one of them would undergo further SI for 10 days. Thus, the sentence, for all such offences, for each of the appellants would be as under:-
i. For offence u/s 354/34 IPC: SI for one year and a fine of Rs. 2000/-. in default of payment of fine to undergo SI for 10 days. ii. For offence u/s 323/34 IPC, SI for three months. iii. For offence u/s 341/34 IPC, SI for one month.
29. All such sentences are directed to run concurrently. Needless to say that they shall be entitled to benefit of provisions of Section 428 Cr.P.C.
30. Both the Appeals stand disposed of accordingly. The CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 14 of 15 signed copy of the judgment be placed in Crl. Appeal No. 214/2020 and one attested copy thereof be placed in the record of connected appeal i.e Crl. Appeal No. 215/2020.
31. Copy of this judgment be provided to both the appellants, free of cost.
32. Trial Court Record be sent back along with copy of this judgment.
33. Appeal files be consigned to record room.
Digitally signedMANOJ by MANOJ JAIN Date: Announced in open court JAIN 2022.04.01 17:19:31 +0530 on 01.04.2022 (Manoj Jain) Principal District & Sessions Judge: South West District Dwarka Courts/Delhi CA No. 214/2020 Krishan Vs. State CA No. 215/2020 Kamal Vs. State Page 15 of 15