Delhi District Court
Sandhya Singh vs The State on 21 August, 2018
IN THE COURT OF SAVITA RAO, SPL. JUDGE, (PC ACT) CBI01,
(SOUTH) SAKET COURTS : NEW DELHI
Crl. Appeal No : 152/2018
FIR No. : 719/03
P.S. : Malviya Nagar
U/s : 341/323/509/354/34 IPC
In the matter of :
Sandhya Singh
W/o Mr. Kamal Mongra
R/o House No. C85 A
Chhatarpur Enclave, Phase2
New Delhi
...... Appellant
VERSUS
1. The State
Through Additional Public Prosecutor
2. Hari Om Singh
S/o Sh. Zile Singh
R/o K316, Lado Sarai
New Delhi
3. Kailashi
W/o Sh. Azaad Singh
R/o K296, Lado Sarai,
Crl. Appeal No. : 152/2018 1/16
New Delhi
....... Respondents
Date of Filing : 17.04.2018
Date of Arguments : 09.08.2018 and 21.08.2018
Date of Order : 21.08.2018
O R D E R
1. This is an appeal filed by complainant aggrieved by the judgment of acquittal dated 13.12.2017 passed by Ld. Trial court. FIR in the instant matter had been registered u/s 341/323/509/354/34 IPC on the allegations that on 2.7.2003 at about 9.45 p.m. when complainant alongwith her husband and daughter was coming back to home, they were physically assaulted and threatened by the accused persons.
2. After filing of the charge sheet, charge u/s 323/34 IPC was framed against accused Hari Om, charge u/s 354/323/34 IPC was framed against accused Kailashi and charge u/s 354/323/509/34 IPC was framed against accused Azad Singh. All the accused persons pleaded not guilty and claimed trial. Accused Azad expired during the course of trial and case against him stood abated.
3. Prosecution in support of its case examined four witnesses, whereas, in defence, three witnesses were examined on behalf of accused persons.
4. Complainant in her examination before Ld. Trial court stated about the assault upon her while she was coming back from Chattarpur Mandir alongwith Crl. Appeal No. : 152/2018 2/16 her husband and daughter. As stated, accused Azad tried to molest her followed by accused Hari Om abusing her and assaulting her as well as beatings having been given to her husband. Complainant/PW1 also stated about accused Kailashi having torn her shirt and pushing her resulting in her head banging on the wall after which PCR call was made and police reached at the spot.
5. Husband of complainant was examined as PW2 who corroborated the statement of PW1 on material points. Ld. Trial court also noted that PW1 and PW2 have majorly deposed on the same lines in relation to incident i.e. act committed by accused persons with the complainant , however Ld. Trial court noted that PW1 has alleged the presence of four persons i.e. Azad, Hari Om sitting in front of Azad's house, accused Kailashi Devi i.e. alleged second wife of accused Azad and his son joining the said accused persons. Thus, as per her version, four persons were present when the alleged incident took place. Contrary to this, PW2 mentioned regarding presence of five accused persons which in opinion of Ld. Trial court was major contradiction.
6. It was the plea of Ld. APP that due to lapse of time, there may be minor contradictions, however, Ld. Trial court noted that presence and absence of particular person is not a minor contradiction and is a major fact and could not be ignored.
7. Perusal of statement of PW2 reveals the presence and participation of five accused persons in the alleged crime i.e. Hari Om, Azad, two boys namely Nand Kishore and Gajender Singh and one lady who was the second wife of accused Azad, whereas PW1 stated about the presence of accused Azad, Hari Crl. Appeal No. : 152/2018 3/16 Om, second wife of accused Azad namely Kailashi Devi and the sons of accused Azad and Hari Om, which makes out the number as five. Ld. Trial court seems to have calculated the number of persons present with the word used as the 'son' in singular form though the reference is to the 'sons' of accused Azad and Hari Om which works out to at least 'two' in number. Apparently on this aspect, there is no contradiction at all much less to be termed as major or minor in the testimony of both these witnesses.
8. Ld. Counsel for complainant/appellant referred to the date of incident which was 2.7.2003 and the observation of Ld. Trial court that PW1 alleged in her testimony that " she had given her statement on the same day and had signed the same but the same is not on record. On the contrary, she also alleged at one point of time in her cross examination that the statement which was given by her on the day of incident is the same complaint which is on record i.e. Ex. PW1/A. Thus, her both versions are different. She also alleged that she went to PS the following day and lodged complaint in her own handwriting which is Ex. PW1/A. This shows that she had visited the P.S. on 3.7.2003 but still the complaint is bearing the date of 2.7.2003 which strengthens the defence raised by the accused persons that no formal complaint was lodged by her on the date of incident ".
9. PW1 had been specific in her deposition before the court regarding having given her first complaint to the police on the date of incident at her home in night. She denied that she refused to give complaint to the police or did not make any complaint to the police at the spot or at her house. She clarified Crl. Appeal No. : 152/2018 4/16 that on the next day, she met the Chowki Incharge at police chowki and on refusal to lodge the complaint, she tried to contact SHO and it was only after her complaint to higher ups that the inquiry was conducted and the FIR was registered on 30.9.2003. Complainant/PW1 had been categorical in her deposition during cross examination that local police came at the spot and they recorded her statement. As deposed, at the time when she gave her statement, there were two police officials. One was recording her statement and the other had gone to the house of accused persons, however, she did not remember the name of police official who had recorded her statement. As stated, her statement for the second time was recorded in first week of October after registration of FIR.
10. PW3 stated about refusal of complainant to give the statement on the date of incident, whereas PW4 stated about the receipt of handwritten complaint from complainant on the date of incident. PW4 was posted as Incharge Police Post on 2.7.2003 who stated about receipt of the PCR call which was marked to ASI Tej Ram i.e. PW3 for inquiry. ASI Tej Ram reported to him telephonically that allegations were serious and he was making inquiry. After return to police post, ASI Tej Ram stated the same thing. On the said date, FIR was not registered. On the date of incident, PW4 met the complainant and complainant handed over handwritten complaint on the date of incident. According to him, complainant had made complaint on 2.7.2003 at 10.30 p.m. though the FIR was registered on 30.09.2003.
11. Much of the credence was sought by counsel for respondent/accused to Crl. Appeal No. : 152/2018 5/16 the statement of PW3 as well as Ld. Trial court also noted that testimony of PW3 had gone unchallenged and unrebutted as the said witness was not cross examined by Ld. APP while putting forward the grievance of the complainant and the averment of PW3 that no case was made out on the basis of the statements of the members of locality mark 'A to G', whereas the FIR was not registered by PW4 as well, on the same date. The version of prosecution witnesses therefore was held to be contrary to each other and major factor to be taken into consideration in the wake of report filed by PW3 and the defence taken by the accused persons.
12. Though it is correct that PW3 has stated about the refusal of complainant to give the statement, whereas PW4 has stated about the complaint having been given by complainant on the very same date of incident. PW1 i.e. complainant herself has stated about giving of her statement/recording of her statement on the date of incident. Only one statement /complaint was available on the record which is of 2.7.2003, besides the statement after registration of FIR. Therefore due to inconsistency in the statement of PW3 and PW 4 who are the police officials and also for their non action since PW4 himself has stated regarding the allegations being serious as reported to him by PW3 , the credence of testimony of PW1 cannot be put on stake.
13. Ld. Counsel for respondents/accused stated about the area being thickly populated and that on the basis of the statements of witnesses recorded which were mark A to G, no case was made out against any of the accused persons.
14. PW1 and PW2 have denied about presence of the public or other Crl. Appeal No. : 152/2018 6/16 residents of locality except for the accused persons and their family members. The presumption drawn regarding the place of incident being thickly populated area and the date of incident being 2nd July when the people would be sitting outside their houses in summer season, was sufficiently explained by PW1 herself who during her extensive cross examination denied that the alleged spot of incident was thickly populated at that time. According to her, there were few houses because basically said area was a commercial area with many shops located nearby which were closed due to night hours . She stated that the said shops might have been constructed in residential houses but declined suggestion that at the place, there was frequent movement of the people residing nearby even at night hours due to summer season.
15. As far as the statements of the people from locality are concerned which were allegedly recorded by PW3 and were marked 'A to G', credence was sought by Ld. Counsel for accused persons from those statements to make out the point that no such incident as alleged had happened.
16. Witnesses themselves have not been examined in the matter. However, even if their statements are considered on record, their statements to the extent of presence of accused Kailashi corroborates the case of prosecution only, while the other contents of their statements point out their being interested witnesses who alleged regarding the threats to them also by complainant. This fact itself raises question mark upon their statements given to police that the complainant alone was able to threaten so many people present there.
17. The defence taken by accused persons facing trial i.e. Hari Om and Crl. Appeal No. : 152/2018 7/16 Kailashi was that the complainant had borrowed Rs. 30,000/ from Hari Om and on the date of incident, Hari Om had asked the complainant to return his money upon which she started abusing him. It was submitted by Ld. Counsel for appellant that nowhere in the entire defence evidence , could accused produce a single document or a witness in this regard and also failed to mention when, where and why he gave the alleged loan to the complainant when the complainant was not even aware of his name till the time accused outraged her modesty on 24.3.2003, based upon which previous FIR was registered in which appellate court convicted him. As submitted, accused never filed any single recovery suit against the complainant nor did he ever send any legal notice for recovery of the same. As further submitted, rather accused Hari Om himself in his statement recorded u/s 313 Cr.P.C. contradicted his previous version by stating that when he demanded alleged loan amount complainant shouted upon him. He went away from there. Therefore recording of alleged statement marked 'A to G' has no relevance in favour of accused persons when no one was present on the spot according to accused Hariom Singh himself.
18. In terms of statement of accused Hari Om, he was alone there and no one else was present and he also left the said place when complainant started misbehaving , whereas the other accused Kailashi, as stated, was not present at the spot, though in terms of mark 'A to G' , there was verbal quarrel between the complainant and accused Kailashi and reference was also to the presence of accused Hari Om, contrary to the defence taken by both of them. Ld. Trial court also noted that though the presence of accused persons is not denied by accused Crl. Appeal No. : 152/2018 8/16 persons themselves and the defence raised by them with regard to the amount of loan, abusing them by complainant and verbal quarrel having taken place between them is weak defence and are contrary but further noted that the case of prosecution has to stand on its own legs.
19. It is correct that duty is upon the prosecution to prove its own case, however where the prosecution is able to discharge the onus placed upon it, the defence raised by the accused persons attains significance at least to the extent where the defence itself lends corroboration to the case of prosecution.
20. Complainant in the instant matter was not medically examined and her clothes were also not seized. Ld. Counsel for accused persons argued that despite insistence of PW3 to accompany him for medical examination, complainant and her husband refused to go for medical examination and further the FIR was only of scuffle without naming anyone, whereas in the statement before the court for the first time complainant introduced a new case regarding having been beaten by bricks and bats etc. which must have caused serious injury as the head of complainant was also banged on the wall by accused Kailashi, yet the complainant and her husband did not deem it appropriate to get themselves medically examined despite the insistence of PW3 which points out towards the falsity of case of prosecution.
21. Per contra, it was submitted by Ld. Counsel for appellant that time of incident was the late hours in the night. Complainant was not aware regarding the mandatory legal examination and that the reluctance on the part of complainant was also because her daughter had fainted after seeing the incident, Crl. Appeal No. : 152/2018 9/16 therefore their first priority was to take care of their daughter and even otherwise the injuries were not grievous and the accused persons had also been charge sheeted only u/s 323 IPC besides the allegations of section 354/509 IPC against accused Kailashi.
22. Complainant who was present in the court submitted that the ground realities are different. She was the one who had been assaulted and wanted to be behind closed doors in her inability to cope up with the humiliation that she was subjected to. Every person reacts differently and this was the way she had reacted. Counsel for appellant placed reliance upon Criminal Appeal No. 1432/2010 Suraj Kumar Thakur Vs. State dated 16.5.2013 wherein while referring to Rana Pratap and Ors. Vs. State of Haryana 1983 (3) SCC 327, it was observed that " every person who witnesses a particular incident reacts in his own way. Some are stunned, some become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness/complainant on the ground that he/she did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
23. Reliance was further placed upon Abu Thakur & Ors. Vs. State of Tamil Nadu (2010) 2 SCC (Cri) 1258, it was observed that behavourial pattern of individual differs and response of each individual may not be similar ".
24. It was further the submission of Ld. Counsel for appellant that the Crl. Appeal No. : 152/2018 10/16 complainant should not bear the brunt of insensitive and apathetic attitude of the prosecuting agency. Reliance is placed upon Paras Yadav & Ors. Vs. State of Bihar wherein it was observed that " in such cases the story of prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agencies but also in the administration of justice ".
25. Ld. Trial court though has discarded the submission of Ld. Counsel for appellant that the conducting of medical examination of complainant and not seizing her clothes were mere formalities which were to be completed by investigating agency and for the lapses on the part of investigating agency, complainant should not be made to suffer. Ld. Trial court considered that testimony of PW1 and PW2 should be of sterling quality and only in that eventuality the dent created by investigating agency could be ignored, however this court while discussing the deposition of prosecution witnesses did not find any major contradictions in the deposition of material witnesses particularly of PW1 and PW2 and finds substance in the said arguments raised by counsel for appellant considering the inconsistencies in the statements of police witnesses only, who seem to have not only lacked in performance of their duties but also did not complete the procedural formalities and because of their irresponsible conduct, testimony of PW1 and PW2 cannot be disbelieved.
26. Reliance is placed upon Ram Bali Vs. State of Uttar pradesh (2004) Crl. Appeal No. : 152/2018 11/16 10 SCC 598, wherein while referring to the judgment of Karnel Singh Vs. State of M.P. (1995 ) 5 SCC 518, it was observed that " in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective".
27. It is also borne out of record that the vigilance inquiry was also conducted by the police vigilance cell wherein it was noted that ASI Tej Ram and police post failed Saket failed to take appropriate action on the date of incident and even later on.
28. Ld. Counsel for appellant also submitted that in FIR though word "
assault" has been mentioned but FIR is not an encyclopedia to record each and every minute details. In court, complainant explained everything. Reliance was placed by counsel for complainant upon (2008) 5 SCC 368 Animireddy Venkata Ramana & Ors. Vs. PP H.C. of Andhra Pradesh wherein it was observed that " A first information report is not meant to be encyclopedia. Each and every detail of the incident was not necessary to be stated. While considering the effect of some omissions in the First Information Report on the part of the informant, a cout cannot fail to take into consideration the probable physical and mental condition of the first informant".
29. With regard to contention regarding non mention of the name in the FIR, it was clarified by PW1 that she had not mentioned the name, address and other details of accused Kailashi Devi to whom she had identified by stating in Crl. Appeal No. : 152/2018 12/16 her complaint as second wife of accused Azad. She also stated that her complaint was the crux of the incident and was not detailed version of the same.
30. Reliance is placed upon Sidhan Vs. State of Kerala 1986, Cr.L.J. 470 wherein it was observed that " Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact, such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If , on the other hand, these witnesses have given evidence with mechanical accuracy that must have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the courts if the evidence of the witnesses is found acceptable on broad probabilities. The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time".
31. In 2010, III AD (Delhi) 34 Gore Lal Vs. State it was observed that " Variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in essential parts cannot militate against the veracity of the core of their testimony, provided there is the impress of truth and conformity to probability in the substantial fabric of the testimony delivered. While relying upon Crl. A. No. 327/2007 Akbar & Anr. Vs. State and Crl. Appeal No. : 152/2018 13/16 decisions of Hon'ble Supreme Court reported as Tahsildar Singh Vs. State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753 & Leela Ram (Dead) through Dulicahand Vs. State of Haryana AIR 1999 SC 3717, it was further observed that " while appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
32. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ Crl. Appeal No. : 152/2018 14/16 from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to be confused, or mixed up when interrogated later on. A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him.
As further observed, a former statement though seemingly inconsistent with the evidence, need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness ".
33. Having discussed as above, the court finds the deposition of PW1 and PW2 credit worthy and having considered all the material aspects and Crl. Appeal No. : 152/2018 15/16 arguments holds that the prosecution succeeds in proving the guilt of accused persons u/s 323/34 IPC.
34. With regard to the allegations regarding causing assault upon complainant intending to outrage the modesty of complainant or intending it to be likely that thereby the modesty of complainant would be outraged i.e. u/s 354 IPC, the allegations have been levelled only against accused Kailashi Devi. From the sequence of events, the tearing of shirt of complainant does not seem to be the result of intention of accused Kailashi to insult or outrage the modesty of complainant but turns out to be an action during the beatings having been given to the complainant and at least on this count i.e. for section 354 IPC, accused Kailashi deserves to be granted benefit of doubt. Both accused Hari Om and Kailashi , therefore, stand convicted for the offence u/s 323/34 IPC.
Announced in the Open Court (Savita Rao)
Today on 21.08.2018 Spl. Judge (PC Act), CBI01(South)
Saket Courts : New Delhi
Crl. Appeal No. : 152/2018 16/16