Delhi District Court
Cr No. 17/14. Kavita Devi Yadav vs . State & Others. on 27 March, 2014
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Criminal Revision No. 17/2014.
Kavita Devi Yadav,
W/o Sh. Hari Lal Yadav,
R/o RZB71, Matiala Extension,
Uttam Nagar, New Delhi59. ... Revisionist.
Vs.
1. State of NCT of Delhi.
2. Naresh Singh Sirohi,
S/o Sh. Suresh Singh Sirohi,
R/o C84, Lal Bagh, Loni Border,
Loni, District Ghaziabad, UP.
3. Rajender Singh,
S/o Karam Singh,
R/o JJ Colony, Sector 3,
Dwarka, New Delhi77.
4. Kamal,
R/o LExtension,
205206, Mohan Garden,
Uttam Nagar, New Delhi.
5. Ishwar,
R/o D37, Sindicate Enclave,
Page No. 1. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
Gali No. 5, Near Dabri Mor,
New Delhi. ... Respondents.
Date of Institution. : 28.2.2014. Arguments Advanced On. : 22.3.2014. Date of Order. : 27.3.2014. 27.3.2014. Present: Revisionistcomplainant in person.
Sh. Pramod Kumar, ld. Addl. PP for State respondent no. 1.
Respondents no. 2 to 5 (accused persons against whom charge for the offence u/s 354/354A r/w/s 34 IPC was framed by the ld. Trial Court vide impugned order) in person.
Alongwith the present criminal revision petition, an application u/s 5 of Limitation Act, for condonation of delay of in filing the present revision petition, was moved by the revisionist.
Considering the facts and circumstances, in view of the reasons mentioned in the application, in the interest of justice and in order to do substantive justice between the parties, the application u/s 5 of Limitation Act for condonation of delay is allowed and the delay in filing the present criminal revision petition, is condoned.
Page No. 2. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
Today, the present criminal revision petition is fixed for order for today.
Arguments on the present criminal revision petition were addressed by Sh. A.K. Johri, ld. counsel for revisionist, Sh. Aditya Kumar, substitute ld. Addl. PP for Staterespondent no. 1 and Sh. Aditya Singh, ld. counsel for respondents no. 2 to 5, on 22.3.2014.
I have perused the entire record including TCR carefully.
:: ORDER ::
1. The challenge in the present criminal revision petition u/s 397 r/w/s 399 CrPC filed by the revisionist is to the impugned order dated 8.8.2013 of Ms. Tyagita Singh, ld. MM, Dwarka Courts, Delhi, in case titled as "State Vs. Rajender Singh & Others", FIR No. 166/13, u/s 354A/34 IPC of PS Bindapur, whereby the ld. Trial Court has framed the charge for the offences u/s 354/354A r/w/s 34 IPC against all the accused persons.
2. It is pertinent to mention here that out of the aforesaid total 4 accused persons (respondents no. 2 to 5 herein), Page No. 3. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
one accused Naresh Kr. Sirohi (respondent no. 2 herein), had also preferred a revision petition against the framing of charge by the ld. Trial Court, which was allowed by this Court vide today's separate order and the said accused (respondent no. 2 herein) was discharged for the offences u/s 354/354A/34 IPC.
3. The background admitted facts revealed from the record as well as from the arguments of ld. counsels for parties are that in January 2010, the respondent no. 2 had filed an application for eviction of tenant (revisionist herein) u/s 14 (1) (e) r/w/s 25B of the Delhi Rent Control Act, 1958, before the ld. Rent Controller, which was allowed vide order dated 8.3.2010. Aggrieved from the said judgment, the revisionist filed a Civil Misc. Main bearing CM (M) No. 1567 of 2010 before the Hon'ble Delhi High Court and when on 8.12.2010, the aforesaid CM (M) came for hearing before Hon'ble Delhi High Court, the revisionist chose not to press the said petition and sought sometime for vacating the tenanted premises and therefore on the submissions made by the ld. counsel for revisionist, limited notices to that extent, were issued to opposite parties. Meanwhile, the respondent no. 2 had Page No. 4. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
already filed an execution petition before the ld. Rent Controller, but due to the limited notices issued by Hon'ble Delhi High Court vide order dated 8.12.2010, the proceedings before the ld. Execution Court came to a standstill. Thereafter, the respondent no. 2 moved an early hearing application before Hon'ble Delhi High Court, upon which Hon'ble Delhi High Court vide order dated 10.2.2011, clarified that there is no stay of the trial Court proceedings. Thereafter, on 25.3.2011, revisionist in the execution proceedings gave an undertaking that she would vacate the premises by 25.4.2011. In the meanwhile, the revisionist taking a complete somersault from her undertaking given before the ld. Execution Court, filed applications bearing CM No. 7908 of 2011 and CM No. 7909 of 2011 before the Hon'ble Delhi High Court for setting aside the order dated 8.3.2010 passed by the ld. Rent Controller in the eviction proceedings and also seeking stay of judgment dated 8.3.2010. When the said applications came up for hearing before Hon'ble Delhi High Court on 25.4.2011, the Hon'ble Court dismissed the same vide order dated 25.4.2011 with costs of Rs. 15,000/. Thereafter, the revisionist assailing the said order dated 25.4.2011 of Hon'ble Delhi High Court, filed Page No. 5. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
an SLP (C) No. 18738 of 2011 before Hon'ble Supreme Court, which was dismissed vide order dated 14.7.2011. Thereafter, on 29.7.2011, the ld. Execution Court issued warrants of possession in favour of the respondent no. 2 alongwith police protection, which were executed and possession of the property in question was handed over to the respondent no. 2 on 3.8.2011. Thus with police aid, respondent no. 2 came in legal and physical possession of the property in question. When on 22.8.2011 at about 4.45 pm, the respondent no. 2 visited the property in question, he found that the lock on the main door of the property was broken and when he went inside the property, he found that the revisionist with her family had illegally entered into the property. Thereafter, the respondent no. 2 called the PCR by making a call at phone no. 100 and a case FIR No. 218/11, u/s 380/448/452/34 IPC of PS Bindapur was registered against the revisionist. Thereafter, the revisionist filed an anticipatory bail application before the ld. Sessions Court, Dwarka Courts, Delhi, which was rejected and after that, she filed an anticipatory bail application before Hon'ble Delhi High Court, which was also rejected vide detailed order dated 1.3.2012 and thereafter, the revisionist was Page No. 6. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
taken into custody by the local police, but was released on bail. Meanwhile, even after execution of eviction orders against the revisionist, the revisionist was maintaining the possession of the property in question. Therefore, the respondent no. 2 filed a suit for possession against the revisionist, which was decreed in favour of the respondent no. 2, vide order dated 14.2.2013 passed by Sh. Navin Arora, ld. SCJ/RC, Dwarka Courts, Delhi, and possession after execution of the decree of possession, was handed over to the respondent no. 2 on 30.3.2013. Thereafter, on the complaint of revisionist to SHO concerned, the present case FIR No. 166/13, u/s 354/354A/34 IPC of PS Bindapur was registered against all the accused persons (respondent no.2 to 5 herein).
4. The brief facts of the case of the prosecution are that the revisionist gave a handwritten complaint to the SHO of PS Bindapur on 13.4.2013, wherein it was mentioned by the revisionist Kavita Devi Yadav W/o Hari Lal Yadav R/o RZB90, Matiala Extension, Uttam Nagar, New Delhi, that on 12.4.2013 at about 6.30 pm, she was bringing milk from Mother Dairy and was on the way to her home. When she reached in front of office of Rajender, Rajender, Page No. 7. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
Kamal, Ishwar and Naresh were sitting in the office of Rajender and drinking tea. Rajender saw and called her inside the office. Rajender, Kamal and Ishware told her that Naresh (respondent no. 2 herein) is also sitting there and that since her dispute of house is continuing, they would get the same settled, but put a condition that the revisionist would have to do sex with all of them. They further told the revisionist that the papers of the disputed property would also be executed in her (revisionist) name. On hearing this, the revisionist stated that her case with regard to the house is going on in Hon'ble Delhi High Court. Saying this, she tried to leave. However, Naresh, Rajender, Kamal and Ishwar put their hands on the breast of revisionist and attempted to rape her, but the revisionist ran away.
5. On the basis of the said complaint a case u/s 354A/34 IPC was registered and after completion of investigation, charge sheet u/s 354A/34 IPC was filed and, accordingly, ld. Trial Court framed the charge u/s 354/354A r/w/s 34 IPC against all the accused persons vide impugned order.
6. The relevant portion of impugned order of the ld. Trial Page No. 8. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
Court is reproduced below: "... ... ... Perusal of the original complaint of complainant as well as allegations mentioned in the application u/s 156 (3) CrPC, clearly revealed that offence u/s 354 and 354A IPC is made out against accused persons but no offence attempt to rape u/s 376/511 IPC is made out. Since the charge sheet has already been filed in FIR No. 166/13 and it is pending trial, there is no need to continue the present complaint/application u/s 156 (3) CrPC. The application stands disposed off and the file be annexed at the backside of the file of FIR No. 166/13 PS Bindapur for further proceedings/trial in the FIR. ... ... ..."
7. Ld. counsel for revisionist has prayed that in view of the above, additional charge for the offences u/s 376 (D) r/w/s 511 IPC be framed against all the accused persons (respondent no. 2 to 5 herein).
8. Per contra, ld. counsel for respondents no. 2 to 5 has submitted that in view of the background of civil litigation between the revisionist and the respondent no. 2 relating to tenancy, which lost by the revisionist upto Hon'ble Supreme Court and in view of the categorical statements u/s 161 CrPC of six other proposed independent Page No. 9. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
prosecution witnesses, annexed with the charge sheet, it is clear that no such incident as alleged by the revisionist had taken place and that the revisionist had leveled false allegations against the respondents no. 2 to 5 to settle the score with the respondent no. 2 for getting the tenanted premised evicted. He has further submitted that from the material on record, no charge for the offence u/s. 376D/511 IPC can be framed against the respondents no. 2 to 5. He has lastly prayed that accordingly, the present revision petition be dismissed.
9. No doubt the revisionist has made allegations for the offences u/s 354/354A/34 IPC against all the accused persons. There is also no doubt to the proposition that at the stage of charge, the meticulous examination of the material produced by the prosecution is not permitted and no roving inquiry can be conducted. The original case is a State case and not a complaint case and the offences were allegedly committed against the State although complainant is the alleged victim. It is interesting to note that the State has not challenged the impugned order in any separate revision petition for addition of the charge for the offence u/s 376 (2) (g) r/w/s Page No. 10. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
511 IPC against all the accused persons, but the complainant has done so.
10. Out of six proposed prosecution public witnesses, Sh.
Balram Singh S/o Radha Kishan R/o RZ73A, Shri Chand Park, Matiala, is an independent and neighbouring natural witness and has stated in his statement u/s 161 CrPC that on 12.4.2013 from 5.00 pm to 8.00 pm, Kavita Devi (respondent no. 2) remained sitting in the gali outside the House No. RZC736, near the house of Rajender (one of accused) and kept on abusing the plumber and during this time, Naresh Kumar (revisionist) was present in his house. The second proposed prosecution witness Arboon Khatoon W/o M.D. Alam R/o G66, JJ Colony, Sector 3, Dwarka, New Delhi, has stated in her statement u/s 161 CrPC that on 12.4.2013 from 3.00 pm till night, she was sitting in the gali and that neither any lady had come nor any quarrel took place in the office of Rajender. The next proposed prosecution witness Shiv Kumar Solanki S/o Uma Shankar Solanki R/o E51, PhaseII, Papankalan, Dwarka, in his statement u/s 161 CrPC has stated that from 12.4.2013, he worked as plumber from 9.00 am to 8.00 pm, in the house of Page No. 11. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
Naresh Kumar (revisionist) and on that day, a lady named Kavita (respondent no. 2) quarreled with him and kept sitting in the gali and Naresh Kumar remained in his house. The other proposed prosecution witness Dhir Singh S/o Ganga Singh R/o Village Hakpur, Post Bejui, Thana Beturk, District Muradabad, UP, in his statement u/s 161 CrPC has stated that on 12.4.2013, he was working as painter from 8.00 am to 8.00 pm, in the house of Naresh Kumar (revisionist) and during this time, Naresh Kumar remained in his house. The next proposed prosecution witness B. Kanjana W/o B. Bhumiyai R/o G46, Papankalan, Behind NSIT, Sector 3, Dwarka, New Delhi, in her statement u/s 161 CrPC has stated that she is running an NGO in the office of Rajender and she remained in the said office on 12.4.2013 from 9.00 am to 8.00 pm and no incident of eve teasing with any lady took place at about 6.00 pm. The next proposed prosecution witness Barua Ram S/o Atula Ram R/o F40, PhaseII, Sector 3, JJ Colony, Dwarka, New Delhi, in his statement u/s 161 CrPC has stated that on 12.4.2013 from 3.00 pm to 8.00 pm, he kept sitting in the office of Rajender and no lady came to the office of Rajender and neither any teasing of any lady or quarrel with her, took place. Page No. 12. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
11. It is no rule of law that allegation of a complainant have to be taken on face value even if it is not supported by any other material and even if totally contradicted by statements of large number of remaining independent and natural proposed prosecution witnesses present near the spot.
12. For framing of charge strong suspicion or prima facie case must exist against an accused. Further, if two views are possible at the stage of charge, one favouring the accused has to be taken. (Reliance is placed on the case of Neeraj Gupta & Others vs C.B.I., 2007 (3) RCR Criminal 872).
13. Considering the totality of the facts and circumstances, specially in view of the background of bitter tenancy related litigation between the revisionist and the respondent no. 2 and also in view of the fact that the six independent proposed prosecution witnesses have contradicted the version of the revisionist and also in view of the fact that detailed allegations as to which of the respondents no. 2 to 5 did what in alleged attempt to gang rape her, being not mentioned in the statement of Page No. 13. Contd... ... ...
CR No. 17/14. Kavita Devi Yadav Vs. State & Others.
revisionist given to police regarding the alleged incident, I am of the considered opinion that no strong suspicion or prima facie came u/s 376D r/w/s 511 IPC is made out against the respondents no. 2 to 5. Consequentially, the revision petition is dismissed.
14. A copy of this order alongwith TCR be sent to the ld. Trial Court, for information and further proceedings as per law for 9.4.2013 for 2.00 pm.
15. Parties are directed to appear before the ld. Trial Court on the given date and time.
16. Revision petition file be consigned to record room. Announced in the open Court on 27.3.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 14. Contd... ... ...