Delhi District Court
Dilshad vs The State (Govt. Of Nct Of Delhi) on 27 October, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 204147 of 2016
CNR NO. DLSE01-000170-2016
IN THE MATTER OF:
Dilshad
S/o Sh. Mohd. Yameen
R/o T-72, Alwi Chowk,
Nizamuddin, New Delhi.
.......Appellant
Versus
The State (Govt. of NCT of Delhi)
........Respondent
Instituted on : 28.05.2016
Reserved on : 13.10.2022
Pronounced on : 27.10.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 29.03.2016 and order on sentence dated 02.05.2016, passed by learned Metropolitan Magistrate, South-East District, Saket Courts, New Delhi in First Information Report (FIR) No. CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 1 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:09:53 +0530 429/14, Police Station Hazrat Nizamuddin, under Section 354D IPC, titled as 'State vs. Dilshad', whereby appellant was convicted for offence under section 354D IPC. Further, vide order on sentence dated 02.05.2016, the appellant was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/-. In default of payment of fine, appellant was further directed to undergo 03 days simple imprisonment.
2. Succinctly stated, the genesis of present case is complaint Ex.PW-1/A dated 08.08.2014 made by prosecutrix with the allegations that the appellant/accused had been stalking her since last six months and also passed obscene comments. As per prosecutrix, on 06.08.2014 at about 8.00 pm, when she was returning from her office, accused stopped her and told that "mai tumhara intezar karta rehta hu" with intent to insult her modesty. It was further alleged that on 08.08.2014 at about 9.30 am, at Jangpura Chowk, appellant/accused put his hand on the shoulder of prosecutrix, the latter being in company of her mother. The appellant/accused was apprehended by prosecutrix and her mother at the spot when he was trying to flee away and was handed over to police. On these allegations, FIR under section 354/354A/354D IPC was registered in the instant case and the investigation was carried out.
3. After conclusion of investigation, chargesheet was filed against the appellant and after completion of necessary formalities, a formal charge for commission of offences under Section 354/354D/509 IPC was framed against him, to which he pleaded not guilty and claimed trial.
CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 2 of 11
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.10.27
13:10:05 +0530
4. Prosecution to prove its case examined 05 witnesses before Ld. Trial Court. PW1 is the prosecutrix in the instant case, PW2 Inspector Sushma Saxena is the investigating officer of the case and she deposed about the investigation conducted by her, PW3 Smt. Sharda is the mother of complainant, PW4 Ct. Ishwar Singh is the witness to the arrest and personal search of appellant/accused and PW5 is the duty officer who proved FIR Ex. PW5/A.
5. PW1 deposed that since around six months from the date of incident, appellant/accused was following her and in the month of August 2014 at about 7.30 pm, when she was returning from her office, appellant/accused stopped her in Bhogal market and told that "I was waiting for you. Why you have not stopped"; that she objected to appellant/accused and told that "abhi batati hu main tumhe"; that appellant/accused fled away from the spot. She further deposed that after two days, when she was standing at bus stop with her mother at around 9.30 am, appellant/accused suddenly came from back side and placed his hand on her shoulder and uttered some words; that she raised alarm and identified the appellant/accused to her mother as the person who used to follow her; that accused fled away from the spot; that her mother raised alarm on which a boy near the spot caught hold of appellant/accused; that on her call at 100 number, police reached at the spot within ten minutes and she made a complaint to police Ex. PW-1/A; that appellant/accused was arrested vide arrest memo Ex. PW-1/B and his personal search was conducted vide memo Ex. PW-1/C. She further deposed that on the same day, her statement under section 164 CrPC was recorded before Ld. MM, CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 3 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:10:13 +0530 where she correctly identified the appellant/accused. The witness was duly cross examined by defence.
6. PW2 Inspector Sushma Saxena (Investigating Officer of the case) deposed that on 11.08.2014, on receipt of DD No. 11A, she went to the spot where SI Ishwar Singh had handed over the appellant/accused to him; that complainant and her mother were also present at the spot; that she arrested appellant/accused vide memo Ex. PW-1/B and conducted his personal search vide memo Ex. PW-1/C; that thereafter appellant/accused was sent for his medical examination alongwith Ct. Ishwar Singh with the direction to produce him in the court; that thereafter statement of complainant was got recorded under section 164 CrPC and appellant/accused was sent to judicial custody; that she recorded statement of complainant under section 161 CrPC on 21.08.2014.
7. PW3 Smt. Sharda (mother of complainant) deposed that her daughter had told her that appellant/accused used to follow her; that on one day, she had accompanied her daughter to the bus stand; that she was few steps behind her daughter; that on reaching the bus stop, her daughter indicated towards the appellant/accused as the same person who had been following her since past many days.
8. PW4 Ct. Ishwar Singh is a formal witness to the arrest and personal search of appellant/accused.
9. PW5 HC Kailash Chand deposed that while working as duty CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 4 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:10:24 +0530 officer, he has registered FIR Ex. PW-5/A.
10. After conclusion of prosecution evidence, statement of appellant was recorded under section 313 CrPC, wherein all the incriminating evidence was put to him. Appellant denied the same as incorrect and claimed to be falsely implicated. Appellant did not lead any evidence in his favour.
11. Ld. Trial Court vide impugned judgment while acquitting the appellant for offences u/s 354/509 IPC, convicted him for offence u/s 354D IPC, while relying upon the testimony of PW1, having been corroborated by other prosecution witnesses.
12. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on the following grounds:-
(i) That there are material contractions in the statement of complainant and her mother who is said to have accompanied her on the date of alleged incident;
(ii) That Ld. Trial Court failed to appreciate the fact that mother of complainant specifically stated in her cross examination that the appellant/accused did not touch the complainant on the date of alleged incident;
(iii) Ld. Trial Court failed to appreciate the fact that the constable who allegedly apprehended the appellant/accused, has himself admitted in his cross examination that he has not CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 5 of 11 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:10:51 +0530 prepared any site plan;
(iv) Ld. Trial Court failed to appreciate the fact that as per version of complainant, her statement u/s 164 CrPC was recorded on the day of incident, but as per record, said statement was recorded on 11.08.2014;
(v) Ld. Trial Court failed to appreciate the fact that despite peak hours and proximity of residence of the complainant, no public witness was examined;
(vi) That the impugned order is bad in law and against the material available on record.
13. Ld. Counsel for appellant/accused argued on the lines of grounds taken in instant appeal and seeks acquittal on the strength of said arguments.
14. Per contra, Learned Addl. Public Prosecutor for State/respondent opposed the appeal, stating that prosecution has proved its case against the appellant beyond all reasonable doubts and learned Trial Court has rightly convicted and sentenced him.
15. I have heard rival contentions and perused the record.
16. 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 CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 6 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:11:01 +0530 the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
17. In the instant case, PW1 is the complainant/ star witness of the prosecution and whole case depends upon her testimony. Perusal of her testimony reveals that she deposed in no unclear terms that appellant/accused used to follow her in her office since around six months prior to date of incident. The witness further deposed that in August 2014 at about 7.30 pm, when she was returning from her office, appellant/accused stopped her in Bhogal market and said that "I was waiting for you, why you have not stopped". As per the witness, on being confronted, the accused fled away from the spot.
17A. The witness further deposed categorically that after two days, when she was standing at bus stop with her mother at around 9.30 am, appellant/accused suddenly came from back side and placed his hand on her shoulder and uttered some words towards her. PW1 further deposed that the appellant/accused was apprehended at the spot by a boy who was present there. She had correctly identified the appellant/accused in the court. Though Ld. Trial Court acquitted the appellant/accused for offences u/s 354 IPC as the version of PW1 (that the appellant/accused put his hand on her shoulder) was contradicted by her mother i.e. PW3, however it is evident that the testimony of PW1 is consistent with respect to offence of stalking.
18. It is a settled law that the conviction can be based upon the CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 7 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:11:09 +0530 testimony of a sole eye witness, if appears to be trustworthy, blemish free and of sterling quality. In the instant case, the testimony of prosecutrix is trustworthy, blemish free and of sterling quality. Mere non joining of independent witness is not fatal in the instant case as this court cannot be oblivious of the fact that there is always a tendency on the part of public at large to desist from joining the police investigation. Even otherwise, it is a settled law that witnesses are to be weighed and not counted and the testimony of sole eye witness is sufficient to return a finding of guilt if it is found to be truthful, which is the case herein. Reliance is placed upon judgment of Hon'ble Apex Court in Amar Singh vs. State (NCT of Delhi), Crl. Appeal No. 335/2015 & Inderjeet Singh vs. State (NCT of Delhi), Crl. Appeal No. 336/2015, wherein it has been observed as under:-
"Thus the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye 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 Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State Government of NCT of Delhi)."
19. Further, none of the contradictions as pointed out by Ld. defence counsel during course of arguments, is of such nature so as to go into the root of the matter. The said minor contradictions does not corrode the credibility of the victim and the other witnesses, therefore the same cannot be dubbed as contradictions so as to brush aside the case of CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 8 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:11:19 +0530 prosecution unworthy of credence. Reliance is placed upon judgment of Hon'ble Apex Court in State of Rajasthan Vs. Smt. Kalki and Another, (1981) 2 SCC 752 (FB), wherein it was observed as under:-
"In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
20. From the testimony of PW1, it has got proved that the appellant/accused had repeatedly followed and contacted the complainant/ prosecutrix for fostering personal interaction with her despite clear indication/ expression of disinterest by her. The testimony of PW1 has been duly corroborated by other prosecution witnesses. In my considered view, the prosecutrix has painfully narrated the entire incident of stalking in a consistent manner and her testimony on that count is of sterling quality.
21. Ld. defence counsel has failed to point out any material contradiction in the testimony of PW1 so as to render the same unreliable. No contradiction much less material contradiction exists in her testimony to render her version (qua stalking) unbelievable. In the present case, the testimony of eyewitness is cogent and convincing against the accused regarding the offence of stalking.
22. The due identification of the appellant by the complainant, the narration of the detailed manner in which the crime was committed CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 9 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:11:29 +0530 and consistent version of the complainant leaves no doubt in my mind about the guilt of accused.
23. In my considered view, there is no error or impropriety in the impugned judgment. The testimony of PW1 has been duly corroborated by PW3 who was present with former at the place of incident. The testimony of PW2 i.e. investigating officer is also in consonance with the prosecution case as she had arrested the accused from the spot after his apprehension. There is nothing in the cross examination of prosecution witnesses to impeach their credibility. No explanation worth the name was offered by appellant in his statement under section 313 CrPC, justifying his false implication. Ld. defence counsel has failed to point out any material contradiction in the prosecution version.
24. Therefore, in the facts and circumstances of the present case, I am of the view that prosecution has proved its case beyond all reasonable doubts and therefore there is no infirmity in the impugned judgment.
25. During course of arguments, Ld. defence counsel had argued that a lenient view may be taken against the appellant and he may be released on probation. However, in the facts and circumstances of the present case, considering the nature of offence, I am not inclined to extend benefit of probation to the appellant. In my view, the offence of stalking apart from being a dehumanizing act, is also an unlawful intrusion of the right to privacy and sanctity of a female. It may leave behind a traumatic experience for any victim. It is also evident from the impugned order on CA No. 204147/2016 Dilshad v. State (Govt. of NCT of Delhi) Page No. 10 of 11 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.10.27 13:11:40 +0530 sentence that Ld. Trial Court has already taken a lenient view by awarding the sentence of six months and therefore this court would be failing in its duty, if any further leniency is shown to the appellant. Thankfully for the appellant, the prosecution did not file any appeal seeking enhancement of sentence awarded by Ld. Trial Court
26. To summarize, there is no infirmity in the impugned judgment and the order on sentence emanating therefrom. Resultantly, the instant appeal stands dismissed. Appellant be taken into custody and be sent to jail under appropriate warrant for serving his sentence. Copy of the order be given free of cost to the appellant. Appellant has further been apprised that he can challenge the present order before Hon'ble High Court and may approach the office of Delhi High Court Legal Services Authority for free legal aid, in case he so desires.
27. TCR be sent back to Ld. Trial Court alongwith copy of this judgment. Copy of the judgment be also sent to the concerned Jail Superintendent for compliance through email.
28. Appeal file be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.10.27
13:11:50 +0530
Announced in the open (ANUJ AGRAWAL)
court on 27th October, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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