Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF JAGMOHAN SINGH
ADDITIONAL SESSIONS JUDGE – 03, NORTH DISTRICT
ROHINI COURTS, DELHI
CNR No. DLNT01-01252-2024
Crl. Appeal No. 158/2024
FIR No. 923/2017
PS Mukherjee Nagar
Shyam Sunder
S/o Mukteshwar Jha
R/o H.No. 183, DDA Flats
SFS Mukherjee Nagar
Delhi – 110009 ......Appellant/Convict
Vs.
State (NCT of Delhi)
Through SHO
PS Mukherjee Nagar, Delhi …….Respondent
Date of institution : 28.08.2024
Arguments concluded on : 14.02.2025
Date of Order : 14.02.2025
ORDER
1. Vide this order, this Court shall decide the instant
appeal filed by the appellant/convict Shyam Sunder against
the judgment dated 15.03.2024 passed by the Court of Ld.
ACMM, North Distt., Rohini Courts, Delhi, and order on
sentence dated 27.07.2024 passed by the Court of Ld. ACJM,
North Distt, Rohini Courts, Delhi, in case titled as “State vs.
Shyam Sunder” bearing Cr. Case No. 2998/2018, whereby the
appellant has been convicted of the offence punishable u/s
506/509 IPC and sentenced to undergo simple imprisonment
till the rising of the Court and fine of Rs. 1000/- each for both
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the said offences.
Brief Facts
2. The FIR in the present case was registered upon the
statement/complaint Ex. PW1/A made by complainant
Jaskinder Kaur W/o Harjas Singh to the effect that accused
Shyam Sunder was her neighbour; wife of the accused i.e.
Vibha was in the habit of feeding street dogs; on 30.11.2017
also, she was doing so and dog shit was lying in front of house
of the complainant; the complainant asked Vibha to remove
the same, upon which, an altercation took place between
them; Vibha called her husband i.e. accused/appellant; the
accused aggressively came down the stairs and tried to pounce
upon the complainant, but Vibha forcibly stopped him from
doing so. As per further allegations, the accused kept trying to
attack the complainant but his wife Vibha tried to counsel him;
and despite the same, the accused pointed his third finger
towards the complainant which was a bad gesture and which
hurts the modesty of a woman and also threatened her.
Grounds of Appeal/Arguments
3. Sh. Girish Bhardwaj, Ld. Counsel for the
appellant has assailed the impugned judgment and order on
sentence on the following grounds :
(i) The impugned Judgment and order on sentence are erroneous
and seemed to be passed without appreciating the evidence
properly;
(ii) There are apparent contradictions between the testimonies of
PW1/complainant and alleged eye witness Suman Bala;
(iii) Ld. Trial Court has failed to appreciate that there was previous
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enmity between the complainant and the accused;
(iv) Ld. Trial Court has further failed to appreciate that the
statement of the complainant recorded u/s 164 Cr.PC did not
mention any incident where the accused made any gesture or
passed any lewd comments or pointed his finger towards the
complainant;
(v) Ld. Trial Court has further failed to consider that there was
delay of eight days in making the complaint by the
complainant which led to registration of the present FIR. The
said delay has nowhere been explained by the complainant;
(vi) Ld. Trial Court has further failed to consider that the IO did
not try to obtain any CCTV footage of the place of incident;
(vii) Ld. Trial Court has further failed to consider that many
neighbours were present at the spot, however, only
PW4/Suman Bala has been made as a witness to the incident;
Counter arguments
4. Per contra, it is argued by Sh. P.K. Samadhiya, Ld.
Addl. PP for the State/Respondent No. 1 that the impugned
judgment and order on sentence do not suffer from any
infirmity or illegality and has prayed that the present appeal
may be dismissed.
Appreciation of arguments
5. I have heard Ld. Counsel for the appellant, Ld.
Addl. PP for the State/respondent and have also perused the
record carefully.
6. PW1 is the complainant herself and PW4 is public
witness namely Suman Bala. The impugned judgment is
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primarily based on the testimonies of these two witnesses.
However, closer examination of the same reveals that they are
filled with inconsistencies. Moreover, there is a delay of eight
days in lodging of the FIR as admittedly, the alleged incident
took place in the night of 30.11.2017, however, the complaint
was made on 08.12.2017, which led registration of the present
case FIR. The above said delay in making the complaint. is no
where explained by the complainant during her testimony.
7. In her examination in chief, PW1 i.e. complainant
also stated that on 01.12.2017 itself, she went to PS
Mukherjee Nagar and made a written complaint, however, no
action was taken by the police on the said complaint. PW1
further deposed that on the asking of the police officials, she
again made a complaint on 08.12.2017 which led to
registration of the present case FIR. Interestingly, the earlier
complaint dated 01.12.2017 was never brought on record by
the prosecution which bellies the testimony of the complainant
on the above point.
8. The veracity of version of the complainant put forth
by PW4 Suman Bala is also doubtful as during her cross
examination, PW4 stated that the police officials had come to
her house for recording of her statement two days after the
incident. The said statement made by PW4 is doubtful as the
complaint leading to registration of the present case FIR itself
bears the date of 08.12.2017 and the earlier complaint dated
01.12.2017 was never brought on record. So it can safely be
presumed that no such complaint dated 01.12.2017 was in
existence. In the above circumstances, it is doubtful that how
the police officials went to the house of PW4 Suman Bala and
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recorded her statement two days after the incident when even
the complaint, which led to registration of the present case
FIR, was made by the complainant admittedly on 08.12.2017.
9. Other than the above, there are also material
contradictions in the testimony of PW1/complainant herself as
she deposed in her examination in chief that the accused had
pointed his third finger towards her in vulgar manner and also
passed lewd comments and also called her with bad names
using her mother and sister and he kept standing outside the
house of the complainant. Notably, the fact of pointing out
third finger by the accused towards the complainant was no
where mentioned by the complainant in her statement Ex.
PW1/A referred to above. The said fact came up for the first
time in her statement u/s 164 Cr.PC (Ex. PW3/B). Further,
there is no mention either in the complaint Ex. PW1/A or in
the statement u/s 164 Cr.PC Ex. PW3/B of the complainant
that, at that time, the accused was standing outside her house.
The above said improvements also make the version of the
complainant highly doubtful.
10. Notably, in the testimony of PW4 also, there is no
mention of the accused showing any third finger to the
complainant and she only stated that the accused was abusing
the complainant very badly and raised hands towards the
complainant. In the above circumstances and in the
considered opinion of this Court, reasonable doubts arise in
the mind of this Court about culpability of the accused in the
alleged offence, the benefit of doubt which must go to him.
11. There is another circumstance which merits
consideration as regards the testimony of PW4 Suman Bala. It
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is the defence of the accused that his friend namely Rahul
Ram had got lodged an FIR against the son of PW4, which
suggestion was also given to PW4 during her cross
examination, though PW4 denied the same. In these
circumstances, PW4 cannot be treated as an independent
public witness as there was previous enmity between Rahul
Ram i.e. friend of the accused and the son of PW4.
12. It is also worthy to note that during her cross
examination, PW1 admitted that she had made complaint
against another person i.e. close friend of the accused. As per
cross examination of PW1, other neighbours were also present
there at the time of incident, however, other than PW4, no
other public witness has been cited by the prosecution, which
also weakens the case of the prosecution.
Decision
13. In view of the above reasoning and discussion, the
impugned judgment dated 15.03.2024 and order on sentence
dated 27.07.2024 cannot be sustained and are hereby set
aside. Consequently, the present appeal is allowed and
accused Shyam Sunder is acquitted for the offences
punishable u/s 506/509 IPC.
14. TCR be sent back along with copy of this order.
Appeal file be consigned to the Record Room, after
completing necessary formalities.
Announced in the open court
on 14.02.2025 (Jagmohan Singh)
Addl. Sessions Judge-03, (North)
Rohini Courts, Delhi
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