Delhi District Court
Dinesh Kumar vs The State (Govt. Of Nct Of Delhi) on 15 December, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 313 of 2019
CNR NO. DLSE01-003862-2019
IN THE MATTER OF:
Dinesh Kumar,
S/o Sh. Brij Bhan,
R/o 813/7, Govindpuri,
New Delhi.
.......Appellant
Versus
The State (Govt. of NCT of Delhi)
......Respondent
Instituted on : 29.05.2019
Reserved on : 29.11.2022
Pronounced on : 15.12.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 30.04.2019 and order on sentence dated 02.05.2019, passed by the learned Metropolitan Magistrate, South East District, Saket Courts, New Delhi in First Information Report (FIR) No.1045/2015, Police Station Govindpuri, under Section 354D/509 IPC, CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 1 of 14 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:34:06 +0530 titled as 'State vs. Dinesh Kumar', whereby appellant was convicted for offences under section 354D/509 IPC. Further, vide order on sentence dated 02.05.2019, the appellant was sentenced to undergo simple imprisonment for one year each and pay fine of Rs.5,000/- each for the offences under section 354D & 509 IPC. Both the sentences were ordered to be run concurrently.
2. Succinctly stated, instant FIR was registered on the complaint of complainant alleging that the appellant has been following her since last 10-15 days on her way to office. As per complainant, when she objected by asking "aap mera peecha kyun karte ho", the appellant replied "main tumhara peecha zindagi bhar nahi chhodunga" and fled away thereafter. She further alleged that on 08.08.2015 at around 8.15 pm, when she was returning to her home from office and reached near panwari shop, Gali No.8, the appellant was standing there and made a gesture saying "yaar ab to meri motorcycle par baith ja" and started following her. As per complainant, she got frightened and called his brother Puneet. Thereafter his brother Puneet alongwith his friend Gaurav came there and apprehended the appellant at Gali No.8. On these allegations, FIR was registered, the appellant was arrested 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 offence under Section 354D/509 IPC was framed against him, to which he pleaded not guilty and claimed trial.
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ANUJ Digitally signed by ANUJ
AGRAWAL
AGRAWAL Date: 2022.12.15
12:34:16 +0530
4. Prosecution to prove its case examined 07 witnesses before Ld. Trial Court. PW1/complainant is the star witness of prosecution. PW2 Puneet Bakshi is brother of complainant. PW3 Gaurav is friend of brother of complainant. PW4 Ct. Munesh is a witness to the investigation. PW5 SI Jitender Malik is second IO who prepared the challan and filed it before court. PW6 ASI Ombir is the duty officer who proved FIR Ex. PW6/B and his endorsement on rukka Ex. PW6/A. PW7 SI Mahesh Bhargav Kumar is the investigating officer and he deposed about the investigation conducted by him.
5. PW1/complainant deposed that she is doing private job in Mohan Estate, Sarita Vihar; that accused used to follow her from Govindpuri Metro Station to her house in the year 2014 and she informed about this fact to her brother Puneet Bakshi; that she objected to and asked the accused as to why he was following her but accused fled away; that in the month of August 2015 at 07.30 - 08.30 pm she again tried to stop the accused to follow her; that when she was coming from her office in an auto and her brother and his friends were also coming behind; that her brother apprehended the accused at Gali No.8; that accused called his parents and gave beatings to her brother; that she also called her parent; that accused fled away from there; that she called at 100 number and thereafter she went to police station and gave her complaint Ex.PW1/A; that her statement was also recorded by Ld. MM under section 164 CrPC. She correctly identified the accused.
5A. On being cross-examined by Ld. APP for the state with permission of the court, she admitted it to be correct that accused used CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 3 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:34:25 +0530 to follow her whenever she goes to office and comes from office; that once she asked the accused that 'aap mera picha kyu karte ho' to which he replied that 'tumhara peecha jindagi bhar nai chhodunga'; that incident happened on 08.08.2015 at about 08.15 pm; that accused was standing at Gali No.8 and when she reached near to him, he told that 'yaar ab to meri motorcycle par baith ja' and started following her; that police arrested the accused in her presence vide memo Ex.PW1/B. She was duly cross-examined by Ld. defence counsel.
6. PW2 Puneet Bakshi is the brother of complainant who deposed that his sister told him in August 2015 that appellant used to follow her and pass comments; that he alongwith his friend Gaurav apprehended the appellant while he was passing comments on his sister and on this appellant told that he was making call to his family, however he called his friends and they reached at the spot; that thereafter appellant fled away from the spot; that somebody made a call to the police at 100 number and when the PCR reached at the spot, he alongwith his sister, father, mother and Gaurav were taken to PS and his sister gave a written complaint to the police. He correctly identified the accused. The witness was duly cross-examined by Ld. defence counsel.
7. PW3 Gaurav is friend of complainant's brother who deposed that the complainant called his friend and asked him to come to Govindpuri Metro Station; that complainant was going to her home in a rickshaw and they were following her on bike and whey they reached at Gali No.8, complainant stopped the rickshaw and identified the appellant; that they nabbed the accused who refused to accept his guilt, however later CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 4 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:34:34 +0530 on when public persons and parents of complainant reached, appellant confessed the guilt; that the appellant made call and after some time, 10- 15 associates of appellant reached at the spot and started quarreling with them. He correctly identified the accused. The witness was duly cross- examined by Ld. defence counsel.
8. PW4 Ct. Munesh deposed that on 08.08.2015, on receipt of DD No.102B, he alongwith IO/ SI Mahesh Bhargav went to the spot where they came to know that complainant has already gone to police station; that they returned to PS and met with complainant who gave her written complaint; that IO made endorsement on the complaint and handed over the same to Duty Officer for registration of FIR; that the complainant and her brother produced the accused in police station who was interrogated by the IO and was arrested vide memo Ex.PW1/B. He correctly identified the accused. The witness was duly cross-examined by Ld. defence counsel.
9. PW5 SI Jitender Malik deposed that further investigation was marked to him and as the investigation has already been completed by previous IO, he prepared the chargesheet and filed the same before concerned court.
10. PW6 ASI Ombir Singh deposed that while working as duty officer, he had registered FIR Ex. PW6/B and made endorsement on rukka Ex. PW6/A.
11. PW7 SI Mahesh Bhargav is the investigating officer who CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 5 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:34:44 +0530 deposed about the investigation conducted by him. He deposed that on receipt of DD No.102B, he alongwith Ct. Munesh reached at the spot where they came to know that complainant had already left for Police Station; that they returned to PS where he met with complainant alongwith Puneet and Gaurav and they handed over the custody of accused Dinesh to him; that complainant gave her written complaint, on the basis of which he prepared rukka Ex. PW7/A and handed over the same to Duty Officer for registration of FIR; that after registration of FIR, original rukka and copy of FIR was handed over to him and thereafter he interrogated the accused and arrested him; that thereafter statement of complainant was recorded under section 164 CrPC Ex.PW7/B by Ld MM; that he recorded the statement of witnesses and thereafter he was transferred and case file was handed over to MHCR. He correctly identified the accused. He was duly cross-examined by Ld. defence counsel.
12. It is relevant to mention here that during course of trial, accused admitted certain documents i.e. proceedings under section 164 CrPC Ex. AB and DD No.102B dated 08.08.2015 as Ex. AC vide his separate statement u/s 294 CrPC recorded on 14.03.2019.
13. After conclusion of prosecution evidence, statement of appellant was recorded u/s 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.
14. Ld. Trial Court vide impugned judgment convicted the CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 6 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:34:52 +0530 appellant for offence u/s 354D/506 IPC, while relying upon the testimony of PW1, having been corroborated by other prosecution witnesses.
15. The appellant is aggrieved with the impugned judgment and order on sentence emanating therefrom and has assailed the same on various grounds which can be summarized as under:-
i) That Ld Trial Court erred in passing judgment of conviction and order on sentence;
ii) That Ld Trial Court failed to appreciate the facts and circumstances of the case and passed the impugned judgment and order on sentence ignoring the material contradictions in the testimonies of prosecution witnesses;
iii) That Ld Trial Court failed to consider the material contradictions in the testimonies of complainant and other prosecution witnesses;
iv) That Ld Trial Court failed to appreciate the fact that despite availability of public persons at the spot, Investigating Agency failed to examine even a single public witness;
v) That Ld Trial Court failed to consider the fact that PW2 being brother of complainant as well as PW3 being friend of complainant's brother are interested witnesses;
vi) That Ld Trial Court failed to consider the fact that no case is made out against the appellant as the Prosecution has miserably failed to prove its case beyond reasonable doubt;
vii) That benefit of doubt always goes in favour of accused as CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 7 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:35:01 +0530 until the contrary is proved beyond any reasonable doubt.
16. Ld. Counsel for appellant has argued on the lines of grounds taken in instant appeal. It was argued that there are material contradictions in the statement of complainant and other prosecution witnesses. It was further argued that the caller who made PCR call at 100 number was neither cited nor examined as a witness. It was argued that the concerned shopkeeper (near the spot of incident) was not joined in the investigation by the police. It was further argued that as per prosecutrix, the police had come at the spot and she went to police station with them alongwith her parents, whereas as per the police version, the complainant did not meet at the spot at the time when police reached after receipt of PCR call. It was argued that there is no site plan available on record. It is argued that though the place of incident is crowded but no public person was examined as witness. It was further argued that there are material contradiction in the statement of the witnesses with regard to time of incident, presence of persons at the spot, mode of transportation to police station, delay in recording of statement of witnesses and who caught hold of accused at the spot. It was argued that prosecution has failed to prove its case beyond reasonable doubt.
17. Per contra, Learned Addl. Public Prosecutor for State/respondent has 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.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.12.15
12:35:09 +0530
18. I have heard rival contentions and perused the record.
19. 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 appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
20. In the instant case, PW1/complainant is the star witness of the prosecution and whole case depends upon her testimony. Perusal of her testimony reveals that she has gone whole hog with the prosecution version regarding the allegations of stalking. In her testimony, she has categorically deposed about appellant following her and also narrated the specific instance of stalking in August 2015 at about 7.30 PM to 8.30 PM in front of shop of panwari, Gali No.8, Govindpuri. As per the witness, accused followed her daily for 3-4 days. She had correctly identified the appellant in the witness box. Therefore, in my view, the testimony of PW1 qua the allegation of stalking is intact.
21. PW1 faced grueling cross-examination but defence could not elucidate anything to discredit her qua allegations of stalking. Her testimony is absolutely trustworthy, unblemished and of sterling quality. She has withstood rigors of cross-examination without being shaken and therefore her testimony was rightly relied upon by Ld. Trial Court. In the facts and circumstances of the present case, the presence of PW1 at the spot cannot be doubted. Further, no motive whatsoever has been imputed CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 9 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:35:19 +0530 upon the witness to implicate the appellant. Therefore, the 'false implication' of accused by the victim is ruled out in the present case for want of any motive.
22. Ld. Counsel for appellant has failed to point out any material contradiction in the testimony of PW1 so as to render the same unreliable.
23. Mere non-citing of independent witness is not fatal in the instant case as 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)."
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 for offence u/s 354D IPC and therefore there is no infirmity in the CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 10 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:35:29 +0530 impugned judgment to that extent.
25. During course of arguments, Ld. Counsel for appellant took me to the testimony of PW1 and other prosecution witness and cited certain contradictions. Though there is a contradiction in the testimony of witnesses as to who called the PCR as PW1 in her examination deposed that she made a call to the police, whereas PW2 i.e. brother of PW1, someone from the public made a call to 100 number, however, in my view, the said contradiction is too minor in nature and does not in any manner affect the prosecution case. The other argument of Ld. Counsel for appellant that there is a defect in investigation as neither site plan was prepared nor the nearby shopkeeper was examined are noted only to be rejected as it is a settled law that benefit of defect in investigation, if any, cannot accrue in favour of an accused. Reliance is place upon judgment of Hon'ble Apex Court in Zindar Ali SK vs. State of West Bengal & Anr 2009 III AD (S.C) 7 wherein it was held that :-
"It is trite law that the defence cannot take advantage of such bad investigation where there is clinching evidence available to the prosecution as in this case."
26. In my view, none of the said contradictions are of such nature so as to go into the root of the matter and the testimony of complainant de hors of said contradiction has a ring of truth and therefore can be safely relied upon.
27. Although, I conclude that no material contradiction has emerged in the testimony of any prosecution witness but at this stage I can discuss the well settled proposition of law in this regard. Only material CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 11 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:35:38 +0530 contradiction affect the case of the prosecution and not the normal discrepancies. In State of Rajasthan Vs. Kalki (1981) 2 SCC 752 the Hon'ble Supreme Court was pleased to held that "normal discrepancies in evidence are those which 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 those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancies may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so". It is clear from the record that no material discrepancy has come on the record which can affect the case of the prosecution. I accordingly reject the aforesaid contention of Ld. Counsel for appellant.
28. Therefore, in view of aforesaid discussion, it is held that prosecution has been able to prove its case against the appellant beyond all reasonable doubts for offence u/s 354D IPC. However, as far as allegations of section 509 IPC are concerned, it is evident that witness did not depose anything regarding said allegations at the first instance and it was only when leading questions were asked by Ld. Addl. PP (by way of cross examination), she deposed that appellant/accused had asked her to sit on her motorcycle on one occasion and told her that " main aapka peecha zindagi bhar nahi chhodunga". Therefore, in my view, the allegations for offence u/s 509 IPC are not proved against the appellant beyond all reasonable doubts.
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Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.12.15
12:35:49 +0530
29. During course of arguments, Ld. Counsel for appellant 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 sentence that Ld. Trial Court has already taken a lenient view by awarding the sentence of one year with fine of Rs. 5,000/- 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
30. To summarize, there is no infirmity in the impugned judgment so far as appellant was convicted for offence u/s 354D IPC. However, the case of prosecution has not got proved beyond all reasonable doubts for offence u/s 509 IPC and therefore appellant stands acquitted for offence u/s 509 IPC. Resultantly, the instant appeal stands partly allowed. Appellant be taken into custody and be sent to jail under appropriate warrant for serving his sentence for offence u/s 354D IPC. 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.
31. TCR be sent back to Ld. Trial Court alongwith copy of this CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 13 of 14 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:35:59 +0530 judgment. Copy of the judgment be also sent to concerned Jail Superintendent for compliance.
32. Appeal file be consigned to record room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.15 12:36:06 +0530 Announced in the open (ANUJ AGRAWAL) court on 15th December, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 313/2019 Dinesh Kumar vs. State (Govt. of NCT of Delhi) Page No. 14 of 14