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2018 DIGILAW 2913 (PNJ)

Asha Rani v. Kapil Dev

2018-07-16

ANITA CHAUDHRY

body2018
JUDGMENT Anita Chaudhry, J. - The applicant is seeking leave to challenge the judgment dated 28.02.2014 by virtue of which the trial court has ordered acquittal in the complaint filed by her against the respondent. 2. A complaint was filed against the respondent by a Anganwari worker. The allegations levelled by the complainant are that on 09.03.2009 respondent who then was posted as Child Development and Project Officer came to the Anganbari Centre, Phirni Majra where she was posted. She was sent inside the room to check the feed. The respondent followed her and made an attempt to rape her but she managed to come out of the room. It was averred that at that time driver of respondent and a helper in the Centre and one Chaman Lal were present. The complainant narrated the incident to the wife of the respondent and then to the higher authorities, upon which she was threatened by the respondent. After his retirement on 03.06.2009 the respondent started levelling false allegations concerning her chastity. The matter was reported to the higher authorities, but no action was taken. 3. It was further averred that she made a complaint to MLA Balachaur on 26.12.2009 which was forwarded to the police and the parties were called in the office of DSP Balachaur on 08.02.2010. The Officer was not there and the complainant and her son Kulwinder Singh came out of the office and her son went to bring the scooter. The complainant was standing at the gate of Court Complex adjoining DSP office when respondent came upto her and fondled her breast and asked her to cooperate otherwise he would rape her. It was done with an intention to defame the complainant in the public. 4. The complainant alleged that though the matter was reported to the police, but no action was taken, leading to the filing of the complaint by her in the Court. 5. In her preliminary evidence, she examined herself as CW1, Chaman Lal, a witness pertaining to occurrence dated 09.03.2009 was produced as CW2, the son of the complainant was examined as CW4 and one HC Jasbir Singh stepped in the witness box as PW2. 6. After analyzing the preliminary evidence, the respondent was summoned under Sections 354 and 504 IPC and charges were framed. But after charge evidence only the complainant and her son were examined as CW.1 and CW.2. 7. 6. After analyzing the preliminary evidence, the respondent was summoned under Sections 354 and 504 IPC and charges were framed. But after charge evidence only the complainant and her son were examined as CW.1 and CW.2. 7. The respondent adjured the trial in his statement under Section 313 Cr.P.C. and produced six witnesses in defence besides tendering certain documents. 8. On conclusion of trial, the trial Court rejected the story propounded by the complainant and held it to be highly improbable. The trial Court acquitted the respondent. 9. Feeling dis-satisfied, the complainant has approached this Court and has laid challenge to the judgment of acquittal. 10. I have heard learned counsel for the parties and have gone through the records of the Court below carefully. 11. The complainant had alleged that the respondent tried to outrage her modesty on two occasions., firstly on 09.03.2009 in the Anganbari Centre and secondly on 08.02.2010 at the gate of Court Complex. As per her own case of complainant, on 09.03.2009 the driver of respondent and helper of Centre were present and one Chaman Lal son of Kapoor Chand had also witnessed the occurrence. Chaman Lal was produced by her in the preliminary evidence. Later, after the summoning of the accused Chaman Lal was not examined. According to the complainant, Chaman Lal entered the room when the accused was trying to rape her. Chaman Lal was not produced before the Court to stand the test of crossexamination. Chaman Lal was the star witness, but was withheld for the reasons best known to her. The driver and the helper were not examined by the complainant. The Programme Officer was also not examined. Therefore, we have only the solitary statement of the complainant with regard to occurrence dated 09.03.2009. The complainant did not raise any alarm when the attempt was made. She failed to inform the police nor complained to the higher authorities immediately after the occurrence. She claimed that the wife of the respondent was informed immediately after the occurrence, but the wife of respondent (DW5) denied it. The Driver DW1 Sarabjit Singh and Helper DW2 Balbir Kaur, who were stated to be present on 09.03.2009 demolished the case of the complainant and denied any occurrence. DW2 Balbir Kaur rather claimed that she was forced by the complainant to give statement against the respondent. The Driver DW1 Sarabjit Singh and Helper DW2 Balbir Kaur, who were stated to be present on 09.03.2009 demolished the case of the complainant and denied any occurrence. DW2 Balbir Kaur rather claimed that she was forced by the complainant to give statement against the respondent. The letter/ complaint was made to the MLA on 26.12.2009 after more than nine months of the occurrence much after the retirement of the respondent. The argument that the complaint was not made earlier as she feared her removal is false. The complaint was given six months after the retirement. 12. Coming to the occurrence dated 08.02.2010, it was stated to have taken place at the gate of Court Complex where the office of DSP was situated. It had taken place when the complainant had gone to meet DSP. The complainant in support thereof had produced her son. It was admitted that number of persons were present at that time and it is a matter of knowledge that during the working hours there is a huge crowd in the Court Complex. It cannot be expected that the accused would make any such attempt before large number of people. The silence on the part of complainant speaks volume about the veracity of her deposition. This time also, she made the complaint to the police on 24.02.2010. After analyzing the facts and circumstances of the case coupled with the evidence on record, the complainant was disbelieved and it was held as under:- "17. From the above discussed evidence, it appears that neither any occurrence took place on 09.03.2009 nor on 08.02.2010 as stated by the complainant. This is hard to believe that son of the complainant who alleged to witness the whole occurrence of 08.02.2010 neither tried to save her mother nor cried out for any help. Further, it is unbelievable that while standing in the court-complex again complainant kept mum and even in the presence of two persons, she did not raise alarm. None of the persons who as per his ordinary course of business was present in the court-complex at that time, neither witnessed anything nor informed the police authorities regarding the same, that too, when DSP Office was situated just at a few distance from the gate of court complex. None of the persons who as per his ordinary course of business was present in the court-complex at that time, neither witnessed anything nor informed the police authorities regarding the same, that too, when DSP Office was situated just at a few distance from the gate of court complex. Further, Ex.D9, a legal notice was served by the present complainant upon accused Kapil Devi dated 18.12.2009 for the recovery of her Dearness Allowance of Rs. 210/- i.e. About nine months after the first occurrence dated 09.03.2009 by her counsel Sh.J.K. Agnihotri, Advocate, but not even a single word was uttered in the said notice regarding the said occurrence. Further more, it is not out of place to mention here that complaint as well as testimony of both the complainant witnesses are entirely silent about any provocation given to complainant by the act and conduct of accused who tried to outrage her modesty in order to provoke her to break public peace. Hence, no offence under sections 354 and 504 of Indian Penal Code is proved and the accused are hereby acquitted of the charge framed against him under section 354 and 504 of Indian Penal Code." 13. The findings returned by the trial Court are based on correct appreciation of evidence. The High Court ought not to interfere with the order of acquittal unless the judgment of acquittal is perverse or highly unreasonable as held in Vimal Singh Vs. Khuman Singh , (1998) 4 RCR(Criminal) 423. In the instant case, the judgment of acquittal rendered by the Court below is neither perverse nor unreasonable and it cannot be said that the court based its findings on irrelevant or inadmissible evidence. In the circumstances, the application for leave to appeal is dismissed.