Delhi District Court
Criminal Case/37/2011 on 21 December, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Prince and another
FIR No. 37/2011
Police Station : Baba Haridass Nagar
Under Section : 342/323/452/34 Indian Penal Code
Unique Case ID Number: 02405R0135392012
Date of institution : 20.12.2011
Date of reserving : 21.12.2013
Date of pronouncement: 21.12.2013
JUDGMENT
a) Serial number of the case : 65/03/12
b) Date of commission of of- : 16.02.2011 fence
c) Name of the complainant : Smt. Lata Gupta
d) Name, parentage and : 1) Prince, S/o Late Sh. Dharam address of the accused Singh, R/o RZ-8 A, Nanda Enclave, persons Nanak Pura, Najafgarh, New Delhi.
2) Sarvin, S/o Sh. Sunil Kumar, R/o RZ-258 B, Block Nanda Enclave, Najafgarh, New Delhi.
e) Offence complained of : Offences punishable under Section 323 read with Section 34, Section 342 read with Section 34 and Sec-
tion 452 read with Section 34 Indian State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 1 of 16 Penal Code
f) Plea of the accused : Both accused persons pleaded not guilty
g) Final order : Both accused persons acquitted
h) Date of final order : 21.12.2013 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment the accused persons namely Prince and Sarvin are being acquitted of the offences punishable under Section 452 read with Section 34, Section 323 read with Section 34 and Sec- tion 342 read with Section 34 of the Indian Penal Code (hereinafter re- ferred to as 'I.P.C.') in this case FIR No. 37/2011 police station Baba Haridass Nagar by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 16.02.2011 at about 08.00 p.m. at the shop owned by the complainant, the accused persons along with one juvenile and other persons, who have not been arrested, in furtherance of their common intention, wrongfully confined the complainant Smt. Lata Gupta and gave beatings to her with the help of iron rod, danda, kicks and fist blows. It is further alleged that later on, on the aforesaid day itself, in furtherance of their common intention, the accused persons committed house trespass at State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 2 of 16 the house of the complainant i.e. RZ-2, Laxmi Park, Gopal Nagar, Najafgarh, New Delhi, after having made preparation for causing hurt to her and with the intention to assault her, carrying a rod, surgical blade, knife and sword and caused simple injuries to complainant Smt. Lata Gupta.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Cr.P.C. was filed. The copies of the police report and annexed documents were supplied to the accused persons in due compliance of Section 207 Cr.P.C.
4. The case was received by way of transfer by this Court on 23.04.2012.
CHARGE
5. Vide order dated 11.09.2012, charge for the offences punishable under Section 452 read with Section 323 read with Section 342 read with Section 34 I.P.C. was framed against the accused persons to which they pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 25.07.2013, in compliance with the provisions of Section 294 of the Cr.P.C., the accused persons were called upon to admit or deny the genuineness of DD No. 51B dated 16.02.2011 which was admitted by the accused persons and was accordingly exhibited as Ex.P/A/1. In view of the admissions made, the evidence State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 3 of 16 of the duty officer Constable Ajay was dispensed with.
EVIDENCE OF THE PROSECUTION
7. To prove its case, the prosecution in all examined nine witnesses.
8. PW-1 Smt. Lata Gupta is the complainant/injured in the present case. PW-2 Sh. Shubham is the son of the complainant and also an injured in the present case. PW-3 Head Constable Vishram is the police official who had joined the investigation with the investigating officer at the time of arrest of accused Prince. PW-4 Head Constable Virender had also joined the investigation with the investigating officer. PW-5 Dr. R. Shankar Narayanan is the doctor who had medically examined the injured Smt. Lata Gupta vide MLC Ex. PW5/A and had opined the nature of injuries as 'simple'. PW-6 Sh. Arun Yadav is the Ahlmad, Juvenile Justice Board, Delhi Gate who had brought the original file of case FIR No. 37/11, police station Baba Haridass Nagar (with regard to accused Krishan) containing the original seizure memo of iron rod and danda Ex. PW6/A. PW-7 Woman Head Constable Harvinder is the duty officer who had recorded the FIR No. 37/11 Ex. PW7/A in the present case and made her endorsement Ex. PW7/B on the rukka. PW-8 Head Constable Kishan Lal is the present moharrir malkhana who identified the signatures of the then moharrir malkhana Head Constable Sanjeet against entry at serial No.572 in register No. 19 Ex. PW8/A vide which the case property was deposited in the malkhana in the present case. PW-9 Sub Inspector A.A. Khan is the investigating officer in the present case.
State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 4 of 16 STATEMENT / DEFENCE OF THE ACCUSED PERSONS
9. In their examination under Section 313 Cr.P.C., the accused persons denied the entire evidence put to them. They specifically stated that they are innocent and have been falsely implicated in the present case. Accused Prince stated that he did not even know the complainant. Accused Sarvin stated that the mother of co-accused Kishan @ Dhillu (juvenile) had borrowed some money from the complainant Smt. Lata Gupta regarding which there was a dispute between them. He further stated that there was a quarrel between the mother of Dhillu and the complainant at the house of Dhillu and he he may have been falsely implicated in the present case as his family had intervened in the said quarrel in order to pacify the aforesaid persons. The accused persons preferred not to lead any evidence in their defence.
ANALYSIS AND FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Ashok Tanwar, Advocate, learned counsel for the accused persons have been considered.
11. The case of the prosecution is that on the fateful day, in the shop owned by the complainant, in furtherance of their common intention, the accused persons wrongfully confined the complainant Smt. Lata Gupta and gave beatings to her with the help of iron rod, danda, kicks and fist blows and later on they committed trespass in State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 5 of 16 the house of complainant after having made preparation for causing hurt to her and with the intention to assault her, carrying a rod, surgical blade, knife and sword and caused simple injuries to the complainant Smt. Lata Gupta.
Re: Delay in lodging complaint
12. As per the complaint Ex.PW1/A the incident pertained to 16.02.2011, however, the said complaint was made on 25.02.2011 i.e after a delay of about nine days. The said delay in lodging of the complaint has, however, not been satisfactorily explained by the complainant/PW-1. It is stated by the complainant in the complaint Ex. PW1/A that she became unconscious in the hospital and she could not give her statement due to poor health. However, as per the MLC Ex.PW5/A of the complainant Smt. Lata Gupta, she was conscious and oriented at the time of admission in the hospital. There is nothing in the MLC or otherwise on record to suggest that the complainant was unfit for statement. Rather, the investigating officer PW-9 Sub Inspector A.A. Khan stated in his cross-examination that he had not submitted any application to the concerned medical officer to ascertain whether the injured was fit for statement or not and volunteered that, in his opinion, she was fit for making statement. As per the MLC Ex. PW5/A, the injuries sustained by the complainant have been opined to be 'simple' and as per the statement of the complainant herself, she was discharged from the hospital on the very next day of the incident. Even as per PW-5 Dr. R. Shankar Narayanan, at the time of preparation of MLC, the patient, i.e. complainant herein, was fit for State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 6 of 16 giving her statement. In such circumstances, it is not understood as to why the injured Smt. Lata Gupta waited for a period of nine days before making a complaint to the police. The same casts doubt on the truth of the prosecution story.
13. Reliance is placed on the decision in Bhajan Singh v. State of Haryana, 2011 (4) JCC 2401 (SC) cited on behalf of the accused persons. In paragraph 9 of the aforesaid decision, the Hon'ble Apex Court observed as under:
"Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. In such case of delay, it also cannot be presumed that the allegations were an after thought or had given a coloured version of events. The court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law. (Vide :
Sahib Singh v. State of Haryana, AIR 1997 SC 3247; G. Sagar Suri and Anr. v. State of U.P and Ors., 2000 (1) JCC (SC) 158 : AIR 2000 SC 754; Gorige Pentaiah v. State of A.P. and Ors., 2008 (4) JCC 2277; (2008) 12 SCC 531; and Kishan Singh State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 7 of 16 (dead) thr. Lrs. v. Gurpal Singh and Ors., 2010(4) JCC 2447: AIR 2010 SC 3624)."
14. In the instant case, there had been a delay of about nine days in lodging of the complaint. Neither the prosecution nor the complainant have explained as to why the complainant did not lodge a complaint with the police promptly after the alleged incident. The delay in lodging of the complaint appears deliberate. Accordingly, there are chances that the allegations are result of an after-thought or give a coloured version of events.
Re: Absence of Test Identification Parade
15. It is stated by PW-1 Smt. Lata Gupta as well as PW-2 Sh. Shubham in their statements in the court that they did not know the accused persons prior to the occurrence. PW-1 stated that after the alleged incident, for the first time, she saw the accused Prince in the police station and accused Sarvin in the court during court proceedings. PW-2 stated that after the incident he saw the accused persons for the first time in the court. Since the accused persons were not earlier known to the complainant/injured or her son (eye-witness), their test identification parade ought to have been conducted in order to connect the accused persons to the alleged offence. However, no such effort has been made on the part of the investigating officer in the present case. The same is a serious lapse in the investigation which adversely affects the prosecution case.
Re: Absence of independent public witness
16. The only eye-witnesses cited or examined by the prosecution State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 8 of 16 are the complainant/injured PW-1 Smt. Lata Gupta and her son/PW-2 Shubham. They are both interested witnesses. Besides the said witnesses, there is no independent public witness cited or examined by the prosecution in the present case. As per the complainant herself, the first part of the alleged incident took place at the shop constructed in her house, whereafter the accused persons had left the spot, and after 10 minutes the accused persons trespassed into her house and assaulted her. The complainant resides in a residential colony and public persons, including neighbours, customers at the shop and passersby, must have been present there and witnessed the incident or some part of it. In fact, it is admitted by the complainant in her cross-examination that many public persons had gathered at the spot. However, no such independent person has been cited or examined by the prosecution. Same casts doubt on the prosecution version.
Re: Lapses in the testimony of eye-witnesses
17. The prosecution has examined only two eye-witnesses, i.e. the complainant/PW-1 Smt. Lata Gupta and her son PW-2 Sh. Shubham. There are several lapses in the testimony of the said witnesses of the prosecution.
18. While in her complaint Ex.PW1/A the complainant had alleged that the accused Sarvin pushed her, she did not support her aforesaid version in her testimony in court while being examined as PW-1 where she stated that the accused Prince had pushed her. Further, while in her complaint Ex.PW1/A, the complainant had stated that the accused State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 9 of 16 Sarvin had caught hold of her, in her testimony in court, PW-1 stated that while accused Prince had pushed her, the other accused persons had caught hold of her. In her complaint Ex. PW1/A, the complainant stated that the accused Sarvin was carrying a sword in his hand when the accused persons along with others had trespassed into her house, however, in her testimony in court the complainant/PW-1 stated that it was the accused Prince who was holding a sword. While in her testimony in court, PW-1 stated that accused Dhillu took the iron rod (baishakhi) used by accused Prince and gave beatings to her, in her complaint Ex.PW1/A, which formed the basis of the first information report in the present case, there is no mention of any such baishakhi. Further, in the complaint Ex.PW1/A, the complainant had stated that she could not make her statement to the police on 16.02.2011, i.e. the date of the alleged incident, as she had become unconscious in the hospital and her health was poor, however, in her cross-examination in court the complainant/PW-1 deposed that her statement was recorded by the investigating officer at her house on 16.02.2011 itself. Moreover, while as per the prosecution the accused Prince had been arrested at the instance of the complainant on 13.03.2011, the complainant/PW-1 stated that after the time of the alleged incident she had seen the accused Prince at the police station on the next day i.e. 17.02.2011 however she was not aware as to from where and when the accused Prince was arrested by the police. Thus, the complainant/PW-1 did not support the version of the prosecution on the aforesaid aspects. Thus, PW-1 did not support the prosecution version on the aforesaid aspects among others.
State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 10 of 16
19. In his statement under Section 161 Cr.P.C., PW-2 Sh. Shubham had stated that the alleged quarrel had taken place as he wanted to get a shave at priority and the accused persons did not wish to allow him to do so, however, in his testimony in court PW-2 did not support the said version and instead stated that the accused persons had threatened him as they wanted him to leave the barber shop. While it does not so appear in the complaint Ex.PW1/A or his statement under Section 161 Cr.P.C., PW-2 Sh. Shubham, son of the complainant, deposed in court that at the time of the alleged incident, the accused persons were under the influence of liquor. Further, while neither his statement under Section 161 Cr.P.C. nor the complaint Ex.PW1/A mention about the use of the baisakhi of the accused Prince as a weapon in the alleged scuffle, in his testimony in court, PW-2 stated that the accused Dhillu had given beatings to his mother using the baisakhi. Thus, while on the one hand, PW-2 did not support the prosecution version on certain aspects, on the other, he was over- enthusiastic and made improvements in his deposition regarding certain aspects of the prosecution story.
20. The testimony of PW-1 and PW-2 testimony is accordingly not found to be worthy of reliance for convicting the accused persons.
Re: Weapon(s) of offence
21. It is alleged in the complaint Ex.PW1/A that the accused persons had assaulted the complainant with iron rod and dandas. It is further stated in the complaint that when the accused persons had trespassed into the house of the complainant, accused Dhillu was State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 11 of 16 armed with a knife like object, accused Sarvin was armed with a sword and others were armed with surgical blade and rod. However, admittedly no weapon of offence was recovered at the instance of the accused persons, namely, Prince and Sarvin. As per the prosecution, two dandas and an iron rod were recovered from co-accused Krishan @ Dhillu (juvenile). However, in her examination dated 30.04.2013, PW-1/complainant Smt. Lata Gupta only identified one danda and stated that the other danda and the iron rod are not the same with which she was assaulted by the accused persons. Surprisingly, on the very next day i.e. 01.05.20131, when she was cross-examined by the learned Assistant Public Prosecutor for the State, she identified both the dandas and the iron rod as the same with which she was assaulted by the accused persons. In view of the unexplained change in the stand of PW-1, identification of the second danda and iron rod by her cannot be relied upon. Further, PW-1 volunteered that at that time the accused persons were having some sharp objects i.e. sword and surgical blade. Admittedly, no such weapon of offence has been recovered in the present case.
22. Even otherwise, the case property, i.e weapon of offence proved in the present case were not seized from the accused persons, namely, Prince and Sarvin. No weapon of offence was recovered from the accused persons.
Re: Other lapses in the prosecution case
23. Besides the aforesaid, there are other lapses in the prosecution case which cast doubt on the truth of the prosecution version.
State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 12 of 16
24. As per the prosecution, the complaint Ex.PW1/A dated 25.02.2011 is the first complaint/statement made by the complainant to the police. However, in her cross-examination in court the complainant/PW-1 deposed that her statement was recorded by the investigating officer at her house on 16.02.2011 itself. No such statement of the complainant has, however, been filed on record by the prosecution. Therefore, it appears that either the complainant has made a false statement or the investigating officer has carried out some manipulation.
25. While in the complaint Ex.PW1/A the complainant has specifically stated the names of the accused persons, in her cross- examination, the complainant/PW-1 stated that she did not know the accused persons prior to the alleged quarrel and had seen them for the first time at the time of the alleged quarrel. The prosecution has, however, failed to explain as to how the complainant had named the accused persons and their associates in the complaint Ex.PW1/A when she did not know the alleged offenders prior to the alleged incident.
26. As per the prosecution case, accused Prince and Sarvin were arrested at the instance of the complainant vide arrest memos Ex.PW1/C and Ex.PW1/D. The said arrest memos also bear the signatures of the complainant. However, in her testimony in the court, the complainant/PW-1 has clearly denied that the accused persons were arrested at her instance. She specifically stated that after the quarrel, she did not see accused Sarvin until she saw him in the court.
State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 13 of 16 She stated that she was not aware as to from where and when the accused persons were arrested. PW-1 stated that her signatures on the arrest memos Ex.PW1/C and Ex.PW1/D were obtained in the police station. Thus, the version of the prosecution that the accused persons had been arrested at the instance of the complainant has not been established.
27. Perusal of the testimony of PW-4 Head Constable Virender, who is a witness to the pointing out memo Ex.PW4/A and the alleged recovery of the weapons of offence viz. one saria and two dandas at the instance of accused Krishan @ Dhillu, reveals that during his examination in court he had wrongly identified accused Sarvin as being accused Krishan @ Dhillu (juvenile). The same renders under a cloud of doubt the prosecution version that the pointing out memo Ex.PW4/A was prepared and the alleged weapons of offence were recovered at the instance of accused Krishan @ Dhillu (juvenile) in the presence of PW-4.
28. As per the complaint Ex.PW1/A, besides accused Dhillu (juvenile) and Sarvin, two more boys had attacked the complainant. However, police report in the present case has been filed only against two accused persons namely Sarvin and Prince and separate report has been filed against accused Krishan @ Dhillu before the Juvenile Justice Board concerned. There is no mention in the entire police report as to what effort was made by the investigating officer to trace and/or arrest the fourth assailant.
29. As per the complaint Ex.PW1/A, the accused persons had State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 14 of 16 come to the house of the complainant in a Tavera car but no such car has been seized by the investigating officer in the present case.
Re: Contradictions/improvements in testimony of prosecution witnesses
30. There are material contradictions in the testimony of the prosecution witnesses which create a reasonable doubt as to truth of the prosecution story.
31. While as per the arrest memo of accused Prince Ex.PW1/C, the accused Prince had been arrested at RZ-258, Nanda Enclave, Najafgarh, Delhi, PW-3 Head Constable Vishram, who is alleged to be a witness to the arrest of the accused Prince, deposed that the accused Prince had been arrested at a tea shop.
32. As per the complainant PW-1, the investigating officer came at her house on 16.02.2011 along with a constable and after recording her statement, they left her house. However, according to the investigating officer PW-9, he had gone to the house of the complainant on 25.02.2011 and recorded her statement. The FIR is also dated 25.02.2011. Thus, there is contradiction between the testimony of prosecution witnesses as to the date on which the statement of the complainant had been recorded by the investigating officer.
33. While as per the investigating officer PW-9, the accused persons were arrested at the instance of the complainant, the complainant/PW-1 stated that after the date of the alleged incident she State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 15 of 16 had seen the accused Sarvin for the first time in the court and that she was not aware as to from where and when the accused Prince was arrested.
34. In view of the foregoing analysis, this Court is of the considered opinion that the prosecution has failed to prove the charge against the accused persons beyond reasonable doubt. Thus, the benefit of doubt ought to be granted to the accused persons, who are entitled to be exonerated of the charges against them in the present case.
CONCLUSION
35. The accused persons namely Prince and Sarvin are hereby acquitted of the offences punishable under Section 323 read with Section 34 I.P.C., Section 452 read with Section 34 I.P.C. and Section 342 read with Section 34 I.P.C.
36. File be consigned to record room.
Announced in open Court on 21.12.2013.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 21.12.2013 State v. Prince and another FIR No. 37/2011 P.S.: Baba Haridas Nagar Page 16 of 16