Evidence Act, 1872 – Section 134 – If there are doubts about the testimony, the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON‟BLE MS. JUSTICE SUNITA GUPTA
Date of Decision: 25th May, 2016
CRL.A. 254/2016 STATE (NCT OF DELHI) ….. Appellant Through: Mr. Akshai Malik, APP with Sub Inspector Manjeet, P.S. Govindpuri versus PRATAP SINGH @ KRISHNA ….. Respondent Through: Mr. S.K. Singh, Adv.
SUNITA GUPTA, J.
1. Feeling aggrieved by acquittal of the respondent by learned Metropolitan Magistrate (Mahila Court), South-East District, Saket Courts, New Delhi vide order dated 03.09.2014 in case FIR No.489/2011 under S. 354 Indian Penal Code, Police Station Govind Puri, the present appeal under
S.378(1) (B) of Code of Criminal Procedure
has been preferred by the State.
2. The facts lie in a narrow compass. The complainant „X‟ had gone to gym on 09.12.2011 at around 8.15 am where accused was an instructor. After 10.30 am, when all the girls from the gym had left, the respondent /accused came to her and wanted to give massage to her on the ground that she was having pain while doing gym. Despite her refusal, he forcibly started giving massage to the complainant and while doing so, he pressed her thighs, touched her private parts and her breast also. Police was informed. Her statement Ex.PW1/A was recorded which resulted in registration of the instant FIR. During the course of investigation, the respondent /accused was got arrested. After completion of investigation, charge-sheet was submitted against him.
3. Charge for offence under S. 354 IPC was framed against the accused to which he pleaded not guilty and claimed trial. The prosecution examined two witnesses i.e. PW1 – complainant and PW2 Sub Inspector Sahiram – Investigating Officer of the case. In his statement under S. 313Cr.PC, accused denied the case of prosecution. According to him, he was falsely implicated by the complainant. In fact, he was not employed with the gym ever. Vide the impugned judgment dated 03.09.2014, learned Metropolitan Magistrate acquitted the accused primarily on the ground that in the cross examination of the complainant it had come that there was one more lady present inside the gym and that lady was not examined by prosecution. Since that lady was an independent witness, conviction could not be based on the solitary testimony of the complainant.
4. Feeling aggrieved, the present appeal has been preferred by the State.
5. Learned Additional Public Prosecutor for the State submits that the Trial Court fell in error in acquitting the respondent solely on account of non- examination of one more lady who is alleged to be present in the gym and no reason was assigned as to why the testimony of the complainant should be disbelieved. The complainant had no axe to grind to falsely implicate the accused. Moreover, although according to the complainant accused was instructor in the gym, however, the accused has taken a false plea in his statement under S. 313 Cr.PC that he was not employed in the gym. Since the judgment passed by the learned Trial Court suffers from perversity as such it is submitted that the same be set aside and in view of the testimony of the complainant, which is cogent and consistent, the accused be convicted of the offence alleged against him.
6. Per contra, learned counsel for the respondent / accused submits that this is an appeal against acquittal and, therefore, no interference is called for. Moreover, the prosecution case is based on solitary testimony of the complainant. However, no explanation has been given from the side of the prosecution as to why one more lady who was present in the gym and was an eye witness was not examined. The failure to examine the eye witness raises adverse inference against prosecution. Furthermore, there is delay of 2 days in lodging the FIR for which no satisfactory explanation has come as such the delay in lodging the FIR is also fatal to the case of prosecution. Reliance in this regard is placed on
Thulia Kali v State of Tamil Nadu, AIR 1973 SC 501.
7. I have given my considerable thoughts to the respective submissions of learned counsel for the parties and have perused the record.
8. The law relating to an appeal against the order of acquittal was succinctly laid down by the Hon‟ble Supreme Court in
State of Goa v Sanjay Thakran and Anr, (2007) 3 SCC 755
wherein after adverting to various earlier decisions on this point, it was observed as under:
“16…..while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.”
Chandrappa and Others vs. State of Karnataka (2007) 4 SCC 415
while considering the similar issue, namely, appeal against acquittal and power of the appellate court to reappreciate, review or reconsider evidence and interfere with the order of acquittal, this Court, reiterated the principles laid down in the above decisions and further held that:-