Delhi District Court
Rakesh Kumar @ Raju vs The State on 6 October, 2022
IN THE COURT OF SH. DHARMENDER RANA:
ADDITIONAL SESSIONS JUDGE (CENTRAL):
TIS HAZARI COURTS: DELHI
Criminal Appeal No. 475/2019
CNR No.:-DLCT01-015988-2019
In the matter of:-
RAKESH KUMAR @ RAJU
S/o Late Sh Bishan Dass
R/o House No. A-749, Nabi Karim,
New Delhi .......APPELLANT
Versus
THE STATE
(Govt of NCT of Delhi) .......RESPONDENT
Crl Case No. 304473/2016
FIR NO. 119/2016
U/s 354D/509/286/278/294 IPC (as mentioned in complaint
filed before Ld. Trial Court)
PS Nabi Karim
Date of institution : 02.12.2019
Date of arguments: 21.09.2022
Date of order : 06.10.2022
Final order: APPEAL ALLOWED
JUDGMENT
1. The present appeal has been filed by appellant/convict Rakesh Kumar @ Raju against judgment dated 04.10.2019 and order on sentence dated 01.11.2019 passed by Ld. MM-01 (Mahila Court) Central, Tis Hazari Courts, Delhi.
CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.1/122. Vide impugned judgment dated 04.10.2019 and order on sentence dated 01.11.2019, Ld. Trial Court convicted accused Rakesh Kumar @ Raju for offences punishable under Section 354D/509/286/278/294 IPC and sentenced him to undergo RI for a period of 01 years for the offence punishable under Section 354D IPC and further sentenced to undergo RI for a period of 06 months for offence punishable under Section 509 IPC and further sentenced to SI for a period of 01 month for offence punishable under Section 286 IPC and further sentenced to SI for a period of 01 month for offence punishable under Section 278 IPC and further sentenced to SI for a period of 01 month for offence punishable under Section 294 IPC. Convict was further directed to deposit fine of Rs. 50,000/- in the court towards compensation to be paid to complainant/victim within a period of 45 days.
3. Arguments advanced by Ld. Counsel for appellant as well as Ld. Addl. PP for State were heard at length. I have perused the record carefully.
4. Briefly stated: Case FIR no.119/16 was registered with PS Nabi Karim upon a written complaint of complainant (name withheld on account of privacy issues and hereinafter referred to as 'N')(PW-1), inter alia, alleging that convict Raju (neighbour of complainant) was misbehaving with the complainant and was harassing her family members. It was also alleged that the convict used to stalk the complainant and remove his clothes. It was alleged that he became nude on the public streets. The convict used to target the complainant with liquor bottles and used to throw burning firecrackers in her kitchen. It was also alleged that besides the complainant, convict also used to stalk her CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.2/12 mother(hereinafter referred to as 'A')(PW-4) and used to abuse the complainant and her mother.
Consequently, investigation was carried out by IO/ASI Babita(PW-6) and upon conclusion of the investigation, charge- sheet came to be filed before the Ld. Trial Court.
5. Vide order dated 29.09.2016, the Ld. Trial Court took cognizance for commission of the offence under Section 354D/509/286/278/294 IPC. Thereafter, after supply of the documents under Section 207 of CrPC, Ld. Trial Court, vide order dated 03.01.2019, framed charges against the convict for commission of the offence punishable under Section 354D/509/286/278/294 IPC. The convict pleaded not guilty and claimed trial.
6. In order to prove the guilt of convict, prosecution examined as many as six (06) witnesses on record.
7. After conclusion of evidence, statement of convict was recorded under Section 313 CrPC.
8. Accused chose not to examine any witness in his defence.
9. Arguments were advanced before Ld Trial Court and vide impugned judgment and order on sentence dated 04.10.2019 and 01.11.2019 respectively, convict was held guilty for the abovesaid offences and sentenced as herein above mentioned.
10. The convict has now preferred an appeal impugning the judgment dated 04.10.2019 and order on sentence dated CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.3/12 01.11.2019. Notice of the appeal was served upon the State and TCR was summoned.
Arguments have been addressed by both the sides at length and the Ld. Addl PP and Ld. Defence Counsel ably took me through the Ld. Trial Court's Record.
11. It is forcefully argued by Ld. Counsel for convict that Ld. Trial Court has failed to consider the fact that PW-1, who is the complainant in the present case, fails to tell any date or time of the incident. It is submitted that the allegations leveled against the convict are too general, vague and omnibus. It is further argued that Ld. Trial Court failed to consider the fact that PW2 and PW3, eye-witnesses of the incident, have not supported the prosecution story.
12. It is also contended by Ld. Counsel for convict that Ld. Trial Court has failed to consider the fact that PW4 i.e. mother of complainant stated in her cross-examination that I do not remember the dates whenever the accused used to trouble me and my family members and she was unable to tell the time and date of the incident. It is further contended that PW6 i.e. IO of the case stated in her examination in chief that she went to the spot at the instance of complainant yet IO did not recovered any case property i.e. crackers or liquor bottle in the present case.
13. It is further argued by Ld. Defence Counsel that Ld. Trial Court did not record statement of any eye witness which also create doubt in the prosecution story.
CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.4/1214. On the contrary, Ld Addl PP for State has argued that the Ld. Trial Court has passed a well reasoned judgment and appeal deserves to be dismissed. It is submitted that mere want of specifics or corroboration from any independent public witness is not fatal to the prosecution case in light of the credible testimony of complainant 'N' and her mother 'A'. It is submitted that the appeal is bereft of merits and the same accordingly deserves to be dismissed.
15. I have heard the rival submissions and carefully perused the record.
16. The case of prosecution in the instant matter hangs upon the testimony of complainant 'N' and her mother namely 'A'. Before deciding the appeal on merits, it would be appropriate to re- produce herein the relevant portion of the testimony of complainant 'N' and her mother 'A'.
16.1. Complainant 'N' has testified as under:-
"Accused Raju resides in my neighbourhood. He follows me where ever I go. He abuses me in filthy language 'MAA Behan ki Gali Deta Hai'. He had also turned nude before me various times. He also abuses me in the name of my mother. I run a coaching centre. During the time when I teach he constantly abuses in filthy language which causes a lot of nuisance. He also at (SIC) various times throw crackers in my kitchen and also throw liquor bottles. I gave my complaint to the police on 22.05.2016 regarding the above mentioned allegations. The said complaint is now exhibited as Ex.PW-1/A bearing my signature at point A. I have complained against the accused several times to the police....."CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.5/12
16.2. Mother of complainant Smt 'A' has also testified as under:-
"In the month of May, 2016, the accused Rakesh Kumar @ Raju was badly troubling me and my family since morning. Accused was abusing in filthy language against us due to which I was not able to teach the children. Accused Raju was quarreling with us continuously from 10 to 15 nights. Accused Rakesh Kumar @ Raju was having a bad eye upon my daughter from previous one and half year due to which I usually accompany my daughter, wherever, she goes due to the threat of accused. Whenever I used to go alone accused Rakesh @ Raju used to stalk me as well as my daughter. Accused used to become nude whenever he saw my daughter. Accused used very filthy language against me and my daughter as well.
On the day of incident, accused abused us in filthy language and he become nude only wearing underwear in front of us. Accused threw the broken glass bottles in my house and due to which some pieces of glass had come from the window of (SIC) my kitchen. Accused also used to throw burning crackers in my house. Accused used to do all the said acts while taking liquor."
17. In the matter at hand, oral testimony of the complainant and her mother is pitted against the oral plea of innocence and false implications of the accused. Ld. Trial Court has relied upon testimony of complainant and her mother discarding the plea of innocence of the complainant and observed as under:-
"..........Absolutely nothing has been brought on record to prove the motive for which the complainant has falsely implicated the accused......"
18. Evidently, accused has not led any evidence to prove the motive for false implication. However, the presumption of innocence in favour of the accused permits him to discharge his onus by taking recourse to the material already available on CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.6/12 record.
In the case at hand, from the testimony of complainant and her mother itself, it is evident that the accused was having a strained relationship with the complainant and her mother. The acrimony of relationships between hostile neighbours, as evident from record, in itself is a very strong factor suggestive of an urge on the part of the complainant and her mother to pin-down their hostile neighbour. Evidently, Ld. Trial Court has missed to notice this acrimony of relationship between the parties, while discarding plea of false implications and relying upon testimony of the complainant and her mother.
19. Furthermore, in para 17 of the impugned judgment, Ld. Trial Court further went on to observe that "......The testimony of witness PW-2 Sonu and PW-3 Sanjay corroborates the testimony of PW-1 complainant that such incident had happened. Further, PW-2 Sonu and PW-3 Sanjay in their cross examination have admitted that accused was using filthy language against the complainant and her mother."
20. It has been categorically observed by Ld. Trial Court that Sh Sonu(PW-2) and Sanjay (PW-3) corroborates the testimony of the complainant that such incident happened. It would be appropriate to reproduce herein the relevant portion of testimony of Sh Sonu( PW-2 ) and Sanjay (PW-3):-
Sonu(PW-2):-
" The incident had happened on the 22th day of a month. I run a shop near the house of the complainant. I came out of my shop after hearing loud noise and saw that there were heated(SIC) arguments (gali galauch) were going on from both CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.7/12 sides.
Xxxxxxx by Ld. APP for State.
".....It is wrong to suggest that my neighbour accused Raju was standing only in his underwear on 22.05.2016. It is correct that he was abusing in filthy language......".
Sanjay(PW-3):-
"On 22.05.2016, I was present in my shop and heard a loud noise of abusive language. Thereafter, I came out from my shop and saw that there were heated(SIC) arguments between accused and complainant. Thereafter, someone had called at 100 number and police reached at the spot. Xxxxxxxxx by Ld APP for State.
"........It is wrong to suggest that my neighbour accused Raju was standing only in his underwear on 22.05.2016. It is correct that he was abusing in filthy language.......".
21. It appears that Ld. Trial Court seems to have missed-out the fact that Sh Sonu(PW-2) has testified that heated arguments (Gali galouch) were going on from both sides. The testimony of Sh Sonu(PW-2) is further corroborated by Sh Sanjay (PW-3) who also testified that when he came out from his shop he saw that there were heated arguments between accused and complainant. Although, Sonu(PW-2) and Sanjay (PW-3), in their cross- examination by Ld. APP for State have admitted that accused Raju was abusing in filthy language, however, both of them have not supported the remaining prosecution case in the witness box. Now, from the testimony of independent, neutral and dispassionate witnesses, it is evident that there was a quarrel going on between complainant and the accused. The factum of quarrel is not disputed by the prosecution in the cross examination of both the witnesses. Further, from the cross examination of Sh Sanjay (PW-3) the presence of father of complainant at the spot is also evident. Now, in the case at hand, the complainant and her CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.8/12 mother have very conveniently leveled allegation against the convict but have fallen short of revealing their own conduct. Furthermore, the non-examination of the father of complainant, despite his presence at the spot, raises suspicion against motive of the prosecution to give gender specific overtones to a quarrel between neighbours. It is quite unbelievable that a father/husband would remain mute spectator to an incident wherein the perpetrator of the offence is outraging the modesty of his daughter and wife. It appears that the prosecution is withholding some crucial aspects regarding the genesis of the dispute between the parties from the court.
22. To my mind, Sonu (PW-2) and Sanjay (PW-3) appears to be more credible and convincing in comparison with complainant 'N' and her mother 'A'. First of all, both the witnesses Sonu (PW-2) and Sanjay (PW-3) seems to be neutral neighbours, apparently having no intimate connection with either of the parties. Secondly, the testimony would reveal that during their cross examination by Ld. APP, both of them have admitted the suggestion that accused was abusing in filthy language. Had the said witnesses been untruthful or won-over by the accused, nothing prevented them from rejecting prosecution case in toto or to refuse to stigmatize the convict by admitting that he was using filthy language.
23. The complainant and her mother have specifically alleged that the convict got naked in streets/public places. However, no independent public witness has supported the claim of complainant and her mother. In Indian Context, a society, howsoever unconcerned, insouciant or insensible, would still be raged to fury, if such an abominable act of any pervert man, in full CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.9/12 public view, is noticed. Atleast, someone would certainly make a PCR call, if not opt to directly intervene and help the helpless female victims. The two independent neutral witnesses examined by prosecution have not supported the prosecution in witness box. From the testimony of the complainant and her mother, it is evident that they were running a coaching center. Mother of complainant Smt 'A' has specifically alleged that during the time when she was teaching, convict was creating a lot of nuisance. Even if it is presumed that the other neighbours were reluctant to testify in support of complainant, there is specifically no explanation as to why the students/pupil of the complainant and her mother have not been examined in support of the complainant's claim.
24. Furthermore, the complainant and her mother have specifically alleged that accused used to throw liquor bottles and explosives/burning firecrackers in their home. Neither the remnants/trashes of explosives/firecrackers nor the broken pieces of the liquor bottle have been placed on record to substantiate the alleged offence against the convict.
25. Still further, I find force in the submissions of the Ld. Counsel for the appellant that the allegations leveled by complainant and her mother are too general and omnibus. The complainant and her mother have fail to divulge the specifics of the alleged crime viz the date and time of alleged incident. Though it can be argued that since the convict was harassing the complainant and her mother for past few years, therefore, it would be difficult for the complainant to pin point the exact date and time of the incident, when the harassment of the complainant is a CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.10/12 continuous state of affairs. However, contention looses its sheen when viewed against the attendant circumstances. The complainant in her testimony has testified that she complained against accused several times to the police, however, no such previous complaint has been brought on record. Even no independent corroborative piece of evidence has come on record against the convict.
26. Now, under such circumstances, I would prefer to differ from the Ld. Trial Court that the testimony of complainant and her mother can be relied upon to sustain the conviction of the convict, without an independent corroboration by any neutral witness.
This court is appreciative of the fact that in matters of likewise nature, it is very difficult for the prosecution to procure corroborative piece of evidence but the court is equally conscious of the fact that when it is difficult for the prosecution to prove the allegations in the affirmative it is virtually impossible for the accused to prove his innocence in the negative.
27. Considering all the facts and circumstances of the instant case, I am of considered opinion that a shadow of doubt is cast upon the prosecution version which cannot be dispelled without resorting to surmises and conjectures and conviction of the convict cannot be sustained in such circumstances. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, it has been observed herein as under:-
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.11/12
28. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution version appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
29. As a cumulative effect of the aforesaid discussion, I am of the opinion that the defence has made out a good case and the convict deserves the benefit of doubt. The appeal accordingly stands allowed. The judgment and order dated 04.10.2019 and 01.11.2019 are hereby set aside.
Digitally signed by DHARMENDER DHARMENDER RANA RANA Date: 2022.10.06 15:36:25 +0530 Announced in Open Court on 6th October 2022 (DHARMENDER RANA) Additional Sessions Judge (Central) Delhi CA No.475/2019 Rakesh Kumar @ Raju Vs The State (Govt of NCT of Delhi) Page No.12/12