Delhi District Court
Titled State vs . Rajender Singh) on 9 October, 2019
IN THE COURT OF GORAKH NATH PANDEY,
ADDITIONAL SESSIONS JUDGE09,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No.DLWT010106182017
Crl. Appeal No.329/2017
(Arising out of FIR No.594/2014,
PS Hari Nagar, under Sections 354/354B IPC
titled State Vs. Rajender Singh)
In re:
Sh. Rajender Singh,
S/o late Sh. Mahan Singh,
R/o WZ630A, Shiv Nagar Extn.,
New Delhi. .........Appellant
Versus
State
(Govt. of N.C.T. of Delhi) ...... Respondent
Date of filing of appeal : 24.11.2017
Date of hearing arguments : 30.09.2019
Date of pronouncement of judgment : 09.10.2019
Decision : Allowed.
JUDGMENT:
1. The present appeal preferred by the appellant/convict under Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.1/16 Section 374 (3) of Criminal Procedure Code is directed against the judgment dated 25.09.2017 and order on sentence dated 26.10.2017 passed by the Ld. M.M. (Mahila Court02), West, Tis Hazari, Delhi in FIR No.594/2014, PS Hari Nagar whereby he was convicted for the offences punishable under Sections 354/354B IPC and was sentenced to undergo rigorous imprisonment for the period of three years for the offence under Section 354 IPC alongwith fine of Rs.1000/ and rigorous imprisonment for the period of three years alongwith fine of Rs.1000/ for the offence under Section 354B. It was also directed that both the sentences shall run concurrently and benefit of Section 428 Cr. P.C was also given to the convict.
2. The brief facts of the case of the prosecution as culled out from the impugned judgment is as below:
"On 06.06.2014 at about 08:15 pm at WZ630A, Shiv Nagar Extn., New Delhi, appellant/convict Rajender Singh entered the kitchen of the complainant, where she was present and misbehaved with her. It is alleged that the appellant/convict pulled her from behind and on her resistance tore her suit with an intention to outrage her modesty".
3. After completion of investigation, charge sheet was filed against the appellant/convict under Section 354/354B IPC. On Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.2/16 30.01.2015, charge for the offence under Section 354/354B IPC was framed against the appellant/convict to which he pleaded not guilty and claimed trial.
4. In order to establish its case, the prosecution examined five witnesses. Out of the five witnesses, the complainant/prosecutrix was examined as PW1; Duty Officer H.Ct. Amilal as PW2 who proved the FIR and endorsement made by him on the rukka; H.Ct. Santosh as PW3, who visited the spot alongwith the IO; PW4 Trainee SI Akash Malik, who joined the investigation with the IO and proved the arrest documents of the appellant/convict; ASI Subhash Chand, IO as PW4 and Ms. Pallavi, Medical Officer, DDU Hospital as PW5, who proved the MLC No.7701 of complainant.
5. In his statement under Section 313 Cr.P.C., the appellant/convict denied all the incriminating evidence and stated that he is innocent and has been falsely implicated in the present case.
6. In support of his defence, the appellant/convict has examined his wife Smt. Harjinder Kaur as DW1; his daughter in law Ms. Talvinder Kaur as DW2 and his neighbour Sh. Amit as DW3.
Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.3/167. After evaluating the evidence on record and dealing with the rival submissions made on behalf of both sides, the Ld. M. M. came to the conclusion that the prosecution had been successful in establishing the guilt of the appellant in respect of offences punishable under Sections 354/354B IPC and convicted him accordingly. Aggrieved therefrom, the appellant is before this court.
8. The present appeal has been filed on the grounds that impugned judgment and order on sentence are based on conjectures and surmises; there are material contradictions in the testimony of prosecution witnesses; IO has not properly investigated the case; the appellant was under the heavy influence of alcohol, however, no smell was found as per the MLC of the appellant; there is no evidence against the appellant/convict; the evidence was not correctly appreciated and the inherent contradictions in the testimony of prosecution witnesses, IO has not correctly made the site plan of the place of occurrence; IO has not seized the footage of CCTV installed by the appellant/convict covering the space of the kitchen of the complainant where the incident alleged to have taken place; complainant has made the false complaint against the appellant/convict as there was some altercation between the appellant and her son in the noon hours when the son of the complainant Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.4/16 installed the AC covering the ventilation of the room of the appellant; FIR is antitime as the time of commission of alleged offence has not been mentioned in the FIR; Ld. Trial Court has erred not to appreciate that the MLC of the complainant showing the type of weapon as blunt however there is no case of any fight/exchange blows; there are dispute between the complainant and the appellant in respect of of the property and the Ld. Trial Court has failed to appreciate the copy of Deed of Will in favour of the appellant. It is argued by the counsel for the appellant that there are contradictions in the oral and documentary evidence relied by the prosecution; testimony of the PW1/complainant being victim/interested witnesses is not reliable and trustworthy; the prosecution failed to prove the case against the appellant beyond reasonable doubt. The Ld. counsel for the appellant prayed for setting aside the impugned judgment and order on sentence.
9. Per contra, the Ld. Addl. PP has argued that in view of the testimony of the prosecution witnesses and the material on record, the appellant/convict was rightly convicted by the trial court and thus no interference is called for.
10. I have heard the counsel for the appellant as well as Addl. PP for the State. Trial court record has also been perused.
Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.5/1611. Before proceeding, it is relevant to note the provisions of law i.e. Sections 354/354B IPC which are produced as under: [354. Assault or criminal force to woman with intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].
[354B. Assault or use of criminal force to woman with intent to disrobe. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.]
12. It is a settled proposition of criminal law that prosecution is supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
It has been held in Sadhu Singh Vs State of Punjab, 1997 Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.6/16 (3) Crimes 55, that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
13. The Apex Court in Veer Singh & Ors. Versus State of UP reported in (2014) 2 SCC 455, has observed that :
"17. Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide:
Vadivelu Thevar and Anr. V. State of Madras : AIR 1957 SC 614; Kunju @ CRL. A. 272/2018 AND CRL. LP 318/2018 Balachandran v. State of Tamil Nadu : AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal : AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya Pradesh : (2011) 9 SCC 626; Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10; Kishan Chand v. State of Haryana : JT 2013 (1) SC 222 and Gulam Sarbar v. State of Bihar (Now Jharkhand) : 2013 (12) SCALE 504).
14. In view of the settled law, I shall now examine whether the Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.7/16 testimony of PW1/prosecutrix has a ring of truth, is cogent, credible and trustworthy or otherwise.
15. As far as evidence led by the prosecution is concerned, PW4 ASI Subhash Chand reached at the spot alongwith Ct. Akash at about 08:45 pm on 06.06.2014 on receipt of PCR Call and recorded the statement of the complainant, prepared rukka and got registered FIR, prepared site plan and seized torn kurta of the complainant vide Ex.PW1/B. The accused was also arrested by him. PW5 is the doctor who proved the MLC of PW1 vide Ex.PW5/A; PW2 proved the FIR Ex.PW2/A and endorsement on rukka Ex.PW2/B.
16. The testimony of PW1 holds significance being the victim/prosecutrix. The law on the relevance of the testimony of an injured eye witness stands well settle. In Bhajan Singh v. State of Haryana reported as (2011) 7 SCC 421, the Supreme Court has held as under:
"36. The evidence of the stamped witness must be given due weightage as his presence at the place of occurrence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.8/16 guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "convincing evidence is required to discredit an injured witness" Thus the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein". (emphases supplied).
17. Hon'ble Supreme Court of India in 'Jodhan vs. State of M.P.', Crl. Appeal No. 1683 of 2010 decided on 08.04.2015 held as under:
"22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him as an inbuiltguarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned Counsel for the Appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge."
In 'Vijay & Anr. vs. State', Crl. A. No. 83/2000 decided on 15.09.2015, Hon'ble High Court of Delhi observed as under:
"59.....It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else [Inder Singh & Ors. V. State of Rajasthan 2015 (2) SCC (Cri.) 215, Abdul Sayeed Vs. State of MP 2010 (10) SCC 259 and Sheesh Ram (supra)]."
18. PW1/complainant deposed regarding the incident. I have Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.9/16 gone through the complaint of the complainant Ex.PW4/A as well as her testimony recorded before the court. The testimony of PW1 is reproduced as under: " I live on aforesaid address with my family at the ground floor and accused who is my brother in law (jeth) also reside at ground floor. On 06.06.2014, we got the split AC installed in our portion, accused Rajinder Singh who is present in the court today (correctly identified) told my son Ranjit Singh that the gap between exhaust of the kitchen of accused and exhaust of our A.C. is less so it will cause problem. On this, my son replied that the gap is 2 to 2.5 feet which is enough so, there will not be any problem. On this, an argument took place between my son and the accused. Thereafter, my son went to the house of his inlaws. While I was in the kitchen, accused Rajinder Singh came in a drunken condition and called me and told me that he want to talk to me but as he was in a drunken condition, I refused. On this, he started shouting and I continued my work. On which, he came from behind and pulled me from back due to which my shirt got torn. I pushed back the accused and went in my room and locked the same. Then, I called up my son who advised me to call up the police. Accordingly, I called the police after 10 minutes. Police came at my home who recorded my statement which is Ex.PW1/A bearing my signature at point A. I handed over the torn kurta to the police which was seized by the police vide seizure memo Ex.PW1/B bearing my signature at point A. Accused Rajinder Singh was arrested vide arrest memo Ex.PW1/C and his personal search was conducted vide personal search memo both these memos bear my signature at point A respectively. I can identify the torn kurta, if, shown to the police.
Witness has identified her torn kurta as Ex.P1.
The statement of the complainant under Section 164 Cr.P.C. was also recorded vide Ex.PW4/B. In her complaint made to Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.10/16 the police Ex.PW4/A, the complainant alleged that she was alone at her home and at about 08:15 pm cooking in her kitchen when the accused came in drunken condition and asked her to talk him. When she refused to talk, accused from behind pulled her backward and on her resistance, her suit was torn as accused pulled her. She went inside her room and looked the room and called her son Ranjeet Singh. It is noted that the son of the complainant Ranjeet Singh is not a witness of this case.
In her statement under Section 164 Cr.P.C., there is allegations only regarding pulling her from behind by the accused and not intentionally tearing her suit while pulling her by the accused. In her initial complaint, she did not call to the police at 100 number whereas in her statement under Section 164 Cr.P.C., she claimed that she called the police on 100 number.
PW1 was crossexamined and during crossexamination, she admitted regarding the property dispute between the parties in respect of the house where they are residing. The witness during cross examination admitted that CCTV camera is installed in the common passage by the accused but due to the reasons best known to the prosecution and the investigating agency, the CCTV Footage was not collected during the investigation. The reason for not collecting the CCTV Footage remained unexplained. Admittedly, the camera Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.11/16 focused was towards the kitchen i.e. the place of the incident and non seizure of the CCTV footage or its production at the time of evidence cast shadow on the prosecution case. The claim of the complainant that the accused tried to disrobe her and in the process kurta got torn is contrary to her claim in the complaint Ex.PW4/A and the statement Ex.PW4/B. It is further relevant to note that no members of the family were present in the house/building at the time of incident which appears to be not sustainable.
19. The complainant claimed that the accused was in drunken condition whereas the MLC of the accused which was prepared in DDU Hospital in the night of the incident itself i.e. 07.06.2014 at about 01:41 am wherein there is no reference of any consumption of liquor by the accused. The observation of the Ld. Trial Court regarding the smell of liquor is contrary to record as the accused was not examined after one day of incident rather he was examined in the night of the day of incident when the complainant was also examined. There is no sign of scuffle apparent also from the MLC of the accused as well as complainant.
20. The incident is stated to be taken place at 08:15 pm and the Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.12/16 matter was reported to the police vide DD No.43A. I have gone through the DD No.43A recorded at 08:45 pm regarding the quarrel only at WZ630A, Shiv Nagar Extn. The FIR was registered at 11:55 pm and the reason for delay in FIR when the matter was reported to the police at 08:45 pm is also remained unexplained. In the site plan Ex.PW4/A, the place of incident is also not shown which point towards the bad state of affairs regarding investigation in the matter. The court can not lose site of the fact that the parties are relatives and senior citizen and there is property dispute between the parties who are residing in the same house. The question may be asked as to when the complainant PW1 called the police after the incident regarding DD No.43A, why there was no allegation regarding Section 354 IPC and only regarding the quarrel. No public witnesses including the neighbours have been examined including Ranjeet Singh i.e. son of the complainant who was the point of issue in the dispute as the AC was installed by Ranjeet Singh only during the day on the date of incident. There is no whisper of allegations regarding tearing of her suit i.e. to disrobe the complainant in her statement under Section 164 Cr. P. C. as well as her complaint. The testimony of PW1 is not free from doubts and is insufficient to prove the allegations against the accused under Section 354/354B IPC. The medical records also do not substantiate or corroborate the claim of the complainant.
Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.13/1621. It is relevant to note that also while some of the circumstance might indicate a strong suspicion qua the accused, such suspicion by itself will not constitute proof. There is a distance to be travelled between "must be" and "should be". The following observations of the Supreme Court in Tanviben Pankaj Kumar Divetia v. State of Gujarat, (1997) 7SCC 156 are relevant in this context:
"The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between normal certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and must be true" and the same divides conjectures from sure conclusions."
22. Keeping in view the settled law and the material available on record, this court is of the considered view that the prosecution failed to establish the case against the convict/appellant beyond Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.14/16 reasonable doubt. The testimony of DWs have no relevance as it is the primary duty of the prosecution to prove the case against the appellant beyond reasonable doubt and the prosecution can not take the benefit for any lapse or weakness in defence. In view of the doubtful features and infirmities in the evidence, it is not safe to rely upon the testimony of witnesses whose evidence needs to be scrutinized with great care and caution. There are fatal infirmities in the entire prosecution case. The entire genesis and the manner of the incident is doubtful and the entire story deserves to be rejected. It would not be safe to convict the appellant and in these circumstances the appellant would be entitled to benefit of doubt and acquittal from the charge framed against him. In view of the aforesaid discussions and the materials available on record, I am of the considered view that the prosecution has failed to establish the circumstances in which the appellant alleged to have committed the offence. The testimony of the witnesses examined by the prosecution is insufficient to prove the involvement of the accused in the incident. As the prosecution has failed to bring home the guilt of the appellant/convict, the appeal is accordingly allowed and the impugned judgment and order on sentence are set aside. Appellant/convict is hereby acquitted.
23. Previous personal bond and surety bond of the Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.15/16 appellant/convict stand discharged. Documents, if any, of the surety be released to them against acknowledgement.
24. Trial Court Record be sent back alongwith the copy of the judgment.
25. Appeal file be consigned to the Record Room.
Digitally signed by Gorakh Nath Gorakh Nath Pandey
Pandey Date: 2019.10.14
17:12:31 +0530
Announced in the open court (Gorakh Nath Pandey)
on 09.10.2019 Addl. Sessions Judge 09 (West)
Tis Hazari Courts, Delhi.
Crl. Appeal No.329/2017 Sh. Rajender Singh Vs. State Page No.16/16