Suk Charan vs State
2014 Latest Caselaw 3382 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: 30th July, 2014

+                         CRL.A. 1438/2012

        SUK CHARAN                                   ..... Appellant
                          Through:       Mr. Padam Kant Saxena, Ms.
                                         Aeshna Dahiya & Mr. Deepak
                                         Dahiya, Advocates.
                          versus

        STATE                                        ..... Respondent
                          Through:       Ms. Ritu Gauba, APP
                                         SI Ashok Kumar, PS Dwarka
                                         South.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 9th August,

2012 and order on sentence dated 14th August, 2012 passed by the

learned Additional Sessions Judge, Dwarka Courts, New Delhi in

Sessions Case No. 162/2011 arising out of FIR No.244/2011 u/s

352/393/307 IPC registered with PS Dwarka, South whereby the

appellant was sentenced as under:-

(i) RI for a period of 4 years with fine of Rs.1,000/- for the offences punishable u/s.452 IPC. The convict shall undergo

further RI for a period of one month in case of default in payment of fine.

(ii) RI for a period of one month for the offence punishable u/s.352 IPC.

(iii) RI for a period of 4 years with fine of Rs.1,000/- for the offences punishable u/s 393 IPC. The convict shall undergo further RI for a period of one month in case of default in payment of fine.

(iv) RI for a period of 6 months for the offence punishable u/s 323 IPC.

All the sentences were to run concurrently. He was given benefit

of Section 428 Cr.P.C.

2. The gravamen of the prosecution case is that on 29 th August,

2011, on receipt of DD No.25A, SI Raj Kumar along with Constable

Jai Prakash reached Flat A-504, Plot No. 21, Dwarka Apartments,

Sector-7, Dwarka where he met the owner of the flat, namely, Tanu

Srivastava, her mother, guard and other persons. There were scratch

marks on the throat of Tanu Shrivastava. He recorded her statement

Ex.PW1/A. Rukka/Ex.PW4/A was sent to the Police Station through

Constable Jai Prakash on the basis of which FIR under Section

352/393/307 IPC was registered. Complainant was sent to the hospital

for medical examination. Site plan Ex.PW4/B was prepared. Accused

was arrested. Chappal of the accused lying at the spot was also seized

during the course of investigation. Wife of the accused Vishakha was

also arrested. After completing investigation, charge sheet was

submitted against the accused. After the case was committed to the

Court of Sessions, charge for offence under Section 452/352/393 and

307 IPC was framed against the accused to which he pleaded not

guilty and claimed trial.

3. In order to substantiate its case, prosecution examined six

witnesses. Accused denied the case of prosecution. According to

him, he had gone to the house of the complainant to demand

Rs.2000/- as advance as his wife was working as a maid in her house.

She refused to give advance saying that his wife was working in her

house for just 15 days and she also remained absent for 3-4 days. She

became angry on hearing his demand and in such a state of anger, told

him that she would give him five lacs rupees so that he can live a

lavish life. While they were talking to each other, she threatened him

to leave or she would call police. He left the house in hurry. He did

not hold or touch the body of Tanu Srivastava. Rather she pulled his

hair and declared that he was a thief. He did not prefer to lead any

evidence.

4. Vide impugned judgment, the appellant was convicted for

offence under Section 452/352/393 and 323 IPC and was sentenced as

mentioned hereinbefore.

5. Feeling aggrieved, the present appeal has been preferred by the

appellant.

6. Sh. P.K. Saxena, learned amicus curiae for the appellant

submitted that as per the version given by the complainant, she had

informed the PCR, however, the DD lodged on the information given

by the complainant with PCR has neither been placed on record nor

proved. The police machinery was set in motion on DD No. 25A.

However, the same merely states that a person had entered the house.

The lady was alone and her neck had been pressed. The details given

in this DD reflects that it was not recorded at the instance of the

complainant. It was further submitted that the entire case of

prosecution hinges on the testimony of the complainant. As such, she

being the solitary witness, her testimony is required to be scrutinized

with care and it was submitted that she has made material

improvements in her testimony, inasmuch as, in initial complaint

lodged by her with the police, she nowhere stated that her maid

Vishakha was not coming for work for the last 2-3 days or that the

accused had come to her on 27th August, 2011 informing that his wife

Vishakha was unwell and would not be coming for work for 2-3 days.

Moreover, according to her, many neighbours had collected on

hearing her cries but no neighbour was examined by the police. He

further referred to the highhandedness on the part of the police

officials for arresting wife of the appellant by submitting that

although there was no allegation against her yet she was arrested and

even charge sheet was submitted against her but she was discharged

by the Court. As such, it was submitted that prosecution has not been

able to prove its case beyond reasonable doubt and the accused is

entitled to be acquitted of the offence alleged against him.

7. Ms. Ritu Gauba, Additional Public Prosecutor for the State

submitted that it is a crime against a woman. Such like incidents of

robbery are increasing and the accused betrayed the trust reposed by

the complainant as he was none else but the husband of the maid

servant working in the house of the complainant. Yet, he not only

went to commit robbery but also pressed her neck. It was only due to

courage mustered by the complainant that she could get herself freed.

8. It was further submitted that minor improvements are of no

consequences which are bound to occur in the testimony of the

witnesses. In fact, the appellant has admitted the entire case of

prosecution. The impugned order does not suffer from any infirmity

which calls for interference. It was, however, submitted that the

appellant is not involved in any other case. He has a family to

support, as such, keeping in view the young age of the appellant and

the family responsibilities, the Superintendent, Jail should be directed

to depute him on learning some skilful work so that after coming out

from jail, he may be gainfully employed.

9. It is true that the star witness of the prosecution is the

complainant herself. The complainant appearing as PW-1 had

deposed that she was working in M/s. Birla Sunlife Insurance Co.

Ltd. and usually used to leave for the office at about 9.15 a.m. or 9.30

a.m. However, on 29.8.2011, she had taken half day's leave from her

office, as it was her birthday. Her maid had not been coming for work

for the last two or three days. She further deposed that as soon as she

finished her pooja at about 11 am, she opened the main gate of the flat

and went outside to throw the waste etc. in the dustbin of the flat.

When she entered again into the flat, she straight away went to wash

her hands and thought that she would bolt the gate from inside, after

washing her hands which had become dirty. When she came out of

the wash room, which is situated just adjacent to the main gate on the

right side, she saw that accused had already entered the flat. She

asked him, how he had entered the flat and he immediately gagged

her mouth by one hand and by the other hand held her throat and

attempted to throttle her. He dragged the complainant upto her bed

room, laid her on the floor and tried to press her throat with hand. She

somehow pushed his abdomen with her feet and freed herself from his

clutches and started running towards the main gate. The accused

again caught hold of her. At this juncture she asked him what he

wanted from her. He replied that he wanted Rupees two lacs. She told

him that she would give him Rs. 5 lacs if he spares her. By that time,

they had reached upto the gallery near the drawing room and were

standing near the wall of the gallery. She somehow mustered courage

and banged his head against the wall, as a result of which, the grip of

the accused around her neck loosened and she immediately opened

the latch of the main gate and ran outside the flat. She raised alarm

saying 'bachao bachao'. On hearing her cries, her mother who resides

in the flat beneath her flat, came upstairs. As soon as her mother

came, accused fled from the spot. After sometime, she gave

information to the PCR at No. 100 and PCR personnels reached the

spot within ten minutes. Thereafter the Police officials from the local

police station reached her flat. Police recorded her statement

Ex.PW1/A. In cross examination, she deposed that the accused must

have remained in her flat on 29.8.2011 for about 15 minutes and he

was not armed with any weapon. He only pressed her throat and her

mouth. She had made a call to the Police at about 11.40 a.m. She

further stated that residents of flats situated on the floors above and

beneath her flat also came to her flat upon hearing the noise. Security

guard of the flats also reached the spot after some time. She denied

the suggestions put to her by the learned counsel for the accused that

accused had come to demand some advance money or that she

misbehaved with him and asked him to leave the flat or that when

accused insisted to leave the flat only after receipt of advance money

she implicated him in this false case.

10. The mother of the complainant has been examined as PW-2.

She also identified the accused to be the husband of maid Vishakha,

who used to work in flat of her daughter Tanu Srivastava. She further

deposed that on 29.08.2011 at about 11.30 a.m., when she was present

in her flat and on hearing the cries of her daughter Tanu from outside,

she immediately ran towards her flat and found her daughter shouting

for help and at the same time, the accused was also present at the gate

of Tanu's flat and he ran away immediately. She also stated that on

27.08.2011 also, the accused had came to the aforesaid flat of Tanu

in the morning at about 6 or 6.30 am to say that his wife Vishakha

would not come for work for about 2 or 3 days. There is nothing

worth mentioning in the cross examination of this witness.

11. From the testimony of PW1 and PW2 and the answers given by

the accused in pursuance to the question put to him under Section 313

Cr.P.C., it is apparent that accused does not dispute that his wife

Vishakha was working as a maid in the house of the complainant. He

also does not dispute that few days prior to the date of incident, he

had gone to the house of the complainant for telling that his wife was

not well and she would not be coming for job for 2-3 days. Although

there is a slight dispute regarding the date of such visit of the accused

to the complainant's house, inasmuch as, the complainant has

deposed that accused came to her house on 27 th August, 2011 for

informing that his wife would not be coming for job for 2-3 days

whereas the accused in his statement under Section 313 Cr.P.C. stated

that he had gone there on 25th August, 2011. This discrepancy

however is inconsequential. It is also not disputed by the accused that

on the fateful day, he had gone to the house of the complainant and

met her. The only variation is regarding the purpose of his visit,

inasmuch as, according to the complainant after entering the flat, the

accused gagged her mouth by one hand and attempted to throttle her

and demanded a sum of Rs.2 lacs, whereas, according to the accused,

he had gone to the house of the complainant to demand a sum of

Rs.2000/-as advance on which she got annoyed and got him falsely

implicated in this case.

12. As regards the submission that there is the solitary testimony of

the complainant, it is settled law that a conviction can be based on the

solitary testimony of a witness.

13. In Sunil Kumar v. State of Govt. of NCT of Delhi, (2003) 11

SCC 367, Hon'ble Supreme Court repelled a similar submission

observing that as a general rule, the Court can and may act on the

testimony of a single 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, 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.

14. In Namdeo v. State of Maharashtra, (2007) 14 SCC 150,

Hon'ble Apex Court re-iterated the view observing that it is the

quality and not the quantity of evidence which is necessary for

proving or disproving a fact. The legal system has laid emphasis on

value, weight and quality of evidence rather than on quantity,

multiplicity or plurality of witnesses. It is, therefore, open to a

competent court to fully and completely rely on a solitary witness and

record conviction. Conversely, it may acquit the accused in spite of

testimony of several witnesses if it is not satisfied about the quality of

evidence.

15. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008

SC 1381, a similar view has been taken placing reliance on various

earlier judgments including Jagdish Prasad vs. State of M.P., AIR

1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957

SC 614.

16. As such, there is no bar in basing conviction of accused on the

solitary testimony of complainant.

17. As regards the submission that there are certain improvements

in the testimony of the complainant, here again it may be stated that

minor discrepancies regarding minute details of the incident including

the overt acts are possible even in the version of truthful witnesses. In

fact such discrepancies are inevitable. Such minor discrepancies only

add to the truthfulness of their version.

18. Hon'ble Supreme Court in Sohrab v. State of Madhya

Pradesh, AIR 1972 SC 2020 observed:

"Hon'ble Supreme Court has held that "falsus in uno falsus in omnibus" is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not

necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."

19. Substantially similar view was taken by Hon'ble Apex Court in

Krishna Mochi & Ors. vs. State of Bihar, (2002) 6 SCC 81 wherein

it was observed as under:

"If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."

20. Hon'ble Supreme Court in Gangabhavani v Rayapati Venkat

Reddy and Ors 2013(11) SCALE 132 held :-

"9. In State of U.P. v. Naresh (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However,

minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.

A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) (2013) 4 SCC 557).

10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."

21. In Sidhan v. State of Kerala, 1988 Cr.L.J. 470, it was held:

"Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the version 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 much 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."

22. The principle that can be culled out from the aforesaid

decisions are that minor discrepancies and inconsistencies cannot be

given undue importance. The Court has to see whether

inconsistencies go to the root of the matter and affect the truthfulness

of the witness.

23. The variance/improvements pointed out by the learned counsel

for the appellant are trivial in nature and does not go to the basic

substratum of the case. In fact, same are only

explanatory/introductory in nature to explain that accused was not

unknown to the complainant as he was husband of Vishakha who was

working as a maid servant in the house of complainant. On earlier

occasion also, he had come to her house to inform that his wife would

not come for work for 2-3 days being unwell. The mere fact that as

per his version, he had gone to demand some advance from the

complainant as his wife was working as a maid servant in her house,

cannot furnish the ground to falsely implicate the accused in this case.

At the most, if any advance has been demanded by the accused, the

complainant would have refused to give the same but for that reason

she would not call the police and implicate him in this false case.

Moreover, the accused is not alleging any animosity against the

complainant for which reason she would falsely implicate him in this

case.

24. Moreover, her ocular testimony finds corroboration from the

medical evidence, inasmuch as, complainant was taken to DDU

Hospital where she was examined by Dr. Manjeet Singh who

prepared her MLC/Ex.PW6/A. As per the MLC, there were multiple

bruise over neck with abrasion over left side of neck, cheek. Under

the circumstances, there is no reason to disbelieve the testimony of

the complainant as she has no axe to grind to falsely implicate the

accused in this case. That being so, the prosecution had succeeded in

establishing its case under Section 452/352/393 and 323 IPC beyond

reasonable doubt and the findings of the learned Trial Court cannot be

said to suffer from any infirmity which calls for interference.

25. Coming to the quantum of sentence, it is not in dispute that the

appellant is not involved in any other criminal case. He has the

responsibility to maintain his wife as well as the minor children. As

per the nominal roll, he has remained in custody for a period of 2

years and 16 days. Besides that, he has earned remission for a period

of 7 months and 10 days. His overall conduct has been reported to be

satisfactory.

26. Keeping in view the totality of the facts and circumstances,

ends of justice will be met if the appellant is released on the period

already undergone. Accordingly, while maintaining the conviction of

the appellant, his sentence is modified to the period during which he

remained as under trial in this case. He be set at liberty, if not wanted

in any other case. Intimation be sent to the appellant through

Superintendent, Jail.

The appeal stands disposed of. Copy of the judgment along

with Trial Court record be sent back.

(SUNITA GUPTA) JUDGE JULY 30, 2014 rs