Delhi District Court
The State vs 1. Birmati W/O Kanwar Singh on 3 December, 2014
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 76/14
UID NO . : 02404R0222372011
FIR No : 465/08
P. S : S.P Badli
u/s 436/448/506//34 IPC.
The State versus 1. Birmati W/O Kanwar Singh
2. Karamvir S/O Kanwar Singh
3. Dharamvir S/O Kanwar Singh
All resident of village Khera Kalan,
Delhi.
Date of committal to session court : 26.08.2013
Date of argument : 03.12.2014
Date of order : 03.12.2014
JUDGMENT
1 The factual matrix , unfolded during the course of trial, which needs a necessary mention for the purpose of deciding the case and emanating from the record, as claimed by the prosecution is that Jai Bhagwan is the owner of a Plot situated at Khera Kalan and he is using the said plot as godown since SC No.76/14 State vs Birmati etc., (Page 1 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC the year 2006. On 20.4.2008, in the morning, all the accused persons alleged to have visited the said plot and tried to break the lock of said plot to which Jai Bhagwan objected . It is further alleged that on 17.5.2008, all the accused persons again visited the said plot and threatened Ashish , Chaukidar available at the plot, on the point of pistol . It is also alleged that accused Birmati, Karamvir and Dharamvir sprinkled kerosene oil, brought by them in a bottle, over plastic scrap lying in the open area and put fire to it due to which Jai Bhagwan has suffered a loss of Rs 40-45 thousand. On the basis of aforesaid allegations, FIR was registered and matter was investigated. After the completion of investigation, accused persons chargesheeted for offences u/s 436/448/506/34 IPC.
2 Vide order dated 16.8.2011, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 436 IPC was exclusively triable by the court of sessions, therefore, case was committed to the court of sessions.
SC No.76/14 State vs Birmati etc., (Page 2 of 21 )
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
3 Vide order dated 31.10.2013, ld
predecessor of this court decided the charges and accordingly, charges for the offences u/s 448/506/436/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried.
4 In order to prove its case, prosecution has examined as many as five witnesses.
5 PW1 Jai Bhagwan is the complainant. He deposed that he is the owner of the factory plot situated at Khera kalan on which he has made a boundary and have also constructed two rooms in the same. He is using the said plot as godown since the year 2006. On 12.04.08, in the morning when he went to his plot, he saw that accused Beermati along with her two sons namely Karamvir and Dharamvir were trying to break the lock of his plot and when he objected, they went away after threatening. He had given a written complaint against them to PS S P SC No.76/14 State vs Birmati etc., (Page 3 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC Badli.
6 PW1 further deposed that on 17.05.08, he received a telephone call from his labour and when he reached there, he came to know that accused persons have entered his plot and that they had threatened the labour on the point of a pistol and also give beatings to them. When he reached at the plot, he saw that his plot had been burnt along with plastic scrap articles and on seeing him all the three accused persons ran away. He immediately called the police and fire brigade. He suffered a loss of about 40/45,000/- (Rs. Forty/Forty Five Thousand). PW1 further deposed that on 23.05.08, at about 11AM, accused persons again came to his plot and threatened his laborers and they broke opened the lock of his room after threatening him and his laborers and accused Birmati even took away the lock of main gate of the plot. PW1 was cross examined by Ld defence counsel.
7 PW2 Ashish Kumar is shown to have
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D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
posted as " chowkidar" at said plot. He deposed that on 17.5.2008, he was working as Chaukidar at the plot of one Jai Bhagwan in village Khera Kalan. On that day, all the three accused persons had come to the said plot at about 11/11:30 am and all of them slapped him . Some plastic scrap was lying in the said plot and all the accused persons sprinkled kerosene oil which they had brought in a bottle with them, over the plastic scrap and put fire to it. Accused Dharamvir took out a pistol and put it on his chest. After some time, all the three accused persons fled away from there and after their departure, he telephonically informed his owner Jai Bhagwan about the incident. Jai Bhagwan reached at the plot and made call to fire brigade and police. PW2 was also cross examined by accused persons.
8 PW3 S.I Gaurav Kumar deposed that on 24.06.2010, investigation of the present case was entrusted to him . He had gone through the file and accused persons had to be arrested. Accused Birmati was on interim bail for 30 days. On 27.08.10, he SC No.76/14 State vs Birmati etc., (Page 5 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC along with lady Ct. Gudhal reached at village kheda kalan from where accused Birmati was arrested vide arrest memo Ex.PW3/A. Personal search of accused Birmati was conducted by lady Ct. Gudhal vide memo Ex.PW3/B. Accused Dharamvir and Karamvir were granted anticipatory bail. On 03.10.10, he reached at village Kheda Kalan. Accused Dharamvir and Karamvir were arrested vide arrest memo Ex.PW3/C & D respectively. Personal search of accused persons was taken vide memo Ex.PW3/E & F respectively .
9 PW4 Insp. Sanjeev Kumar, deposed that on 08.11.2008, he was posted at PS S P Badli as Insp. Investigation. On that day, complaint of Sh. Jai Bhagwan along with the order of DCP (Outer) for registration of the case was assigned to him . He made endorsement Ex.PW4/A and same was handed over to duty officer for registration of the case. After registration of the case, rukka and computerized copy of the FIR given to him for further investigation . He along with the complainant reached the spot and prepared the site plan Ex.PW1/F. He recorded the SC No.76/14 State vs Birmati etc., (Page 6 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC supplementary statement of complainant Jai Bhagwan and tried to search the accused but he could not be traced. On 18.12.2008, he recorded the statement of watchman namely Ashish Kumar. Thereafter, he was transferred, so he handed over the file to MHCR.
10 PW5 S.I Ashok Kumar deposed that on 06.07.09, he was posted at PS S P Badli. On that day, on the instructions of the SHO, present case file was assigned to him . He had gone through the file and accused Birmati was granted the anticipatory bail on 07.07.09. He tried to trace the accused . On 16.01.2010, he was transferred at PS Kanjhawala so, he handed over the case file to MHCR.
11 Here it is pertinent to mention that during the trial, ld counsel for the accused persons have admitted DD no.22 A dt. 17.5.2008, DD no. 47 B Dt/. 17.5.2008 , DD no. 61 B and 39 A dt 19.8.2008 and FIR. In this regard statement of the accused persons was recorded on 16.10.2014, whereby above SC No.76/14 State vs Birmati etc., (Page 7 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC mentioned documents were given exhibit marks as ExAD1 to ExADV5 respectively .
12 Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC was recorded. During the statement u/s 313 CrPC, accused persons denied all the allegations made against them. They did not opt to lead any evidence in their defence.
13 I have heard the Ld Adll PP for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
14 During statement recorded u/s 313 CrPC , accused persons took the stand that Birmati, mother of accused Karamvir and Dharamvir , is the owner of the plot having purchased the same from one Sh Vijender Kumar vide sale documents dated 2.6.2005.
Vijender had purchased the plot from Karamvir on
30.3.2005. Thereafter, on the basis of forged and
fabricated documents dated 09.8.2006 and
SC No.76/14 State vs Birmati etc., (Page 8 of 21 )
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
22.11.2006, Jaibhagwan (PW1) claimed to be owner of this plot and forcibly tried to dispossess her , therefore, she filed a civil suit against Jai Bhagwan. During pendency of the civil suit, she was dispossessed by Jai Bhagwan from that plot. Presently also, case between her and Jai Bhagwan is pending before Hon'ble High Court in respect of the said plot. She is shown to have filed several complaints against Jai Bhagwan i.e. dated 27.8.2007, 15.10.2008, 4.10.2008 and 5.6.2008 and visited PS on various dates but she was not helped by the police rather, the local police assisted the complainant and falsely implicated her in the present case.
15 During his cross examination, PW1 Jai Bhagwan admitted that there is a civil litigation pending between the parties and one civil suit has been filed by accused Birmati against him on the allegations that he took over forcible possession of the said plot. He also admitted that said civil suit is pending before Hon'ble High Court of Delhi. Meaning thereby, both the parties are litigating previously SC No.76/14 State vs Birmati etc., (Page 9 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC over the ownership of the said plot and matter is pending before Hon'ble High Court for its adjudication.
16 In the background of the aforesaid fact , now it is to be seen whether testimony of PW1 and PW2 , who are the material witnesses, can be relied upon as they are the interested witnesses.
17 In Nalla Venkaiah v State of A.P , 2002(4) RCR (Criminal ) 373 :(2002) 7 SCC 117 (in para no.13), Hon'ble Apex court held:
"... The test, in such circumstances, as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double-edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault....."
18 Now, adverting to the present case, if testimony of PW1 and PW2 is put to close scrutiny SC No.76/14 State vs Birmati etc., (Page 10 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC then it becomes crystal clear that it would not be safe to place reliance on their testimonies for the following reasons :
a) PW1 Jai Bhagwan is claiming to be the owner of said plot. According to the accused persons, complainant has taken the forcible possession. The ownership is not a fact in issue before this court therefore, it would not be appropriate to give opinion as to who is the owner but title documents of the plot in question have not been proved as per law to form at least a prima facie opinion, which could have helped the court to arrive at just decision.
b) PW1 Jai Bhagwan is referring two
incidents i.e incident dated 17.5.2008 and
23.5.2008. He deposed that on 17.5.2008, he received a call from his labour and when he reached there he informed that accused persons have entered in his plot and threatened them on the point of pistol. He further deposed that he reached at the plot . He found that plot has been SC No.76/14 State vs Birmati etc., (Page 11 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC burnt along with plastic scrap and on seeing him , all the three accused persons ran away.
But PW2 Ashish Kumar , who is stated to be the" chowkidar" on the said plot deposed that all the three accused persons on 17.5.2008 , after putting plastic scrap to fire and threatening him on the point of pistol, fled away from there and after their departure, he allegedly informed Jai Bhagwan about the incident. Jai Bhagwan reached at the plot and made a call to fire brigade and to the police.
PW1 Jai Bhagwan is claiming that when he reached at the spot , accused persons ran away on seeing him whereas PW2 Ashish stated that after departure of the accused persons, he informed Jai Bhagwan about the incident and thereafter, Jai Bhagwan came at the spot. This is a material contradiction. PW1 Jai Bhagwan is claiming of having seen the accused persons at the time of the incident which has been denied by PW2.
c) PW2 Ashish deposed that all the three
accused persons sprinkled kerosene oil , which
SC No.76/14 State vs Birmati etc., (Page 12 of 21 )
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
they brought in bottle . He is attributing the
aforesaid act to all the three accused persons but in his statement recorded u/s 161 CrPC , this act was attributed only to the accused Birmati.
d) PW2 Ashish Kumar during his cross examination admitted that he was not aware about the names of the accused persons prior to 17.5.2008. He further replied that he had informed to the owner that 2-3 persons who had come at the plot and extended threats 2-3 days prior to the present incident , had come again and set fire, then owner told him their names and then he has stated same to the police. He further admitted that all the three accused persons never came to the plot in the presence of owner Jai Bhagwan (PW1) and in his presence after incident. PW2 Ashish during his cross examination further replied that his owner told him about the names of the accused persons and then he stated the same to the police. During his cross examination by the ld counsel for the accused Karamvir , PW2 admitted that Jai Bhagwan accompanied him when his statement was recorded by the police and Jai Bhagwan has told him the SC No.76/14 State vs Birmati etc., (Page 13 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC name of the accused persons. He further admitted that accused Jai Bhagwan had come to the court on the day when he made statement before this court and he had made him to understand outside the court about the case. This has further created doubt on the testimony of PW2 and sufficient to reject his testimony.
e) PW2 Ashish is referring that he was threatened by accused persons on the point of pistol. During his cross examination, he stated that he had told the aforesaid fact to the police that accused Dharamvir had threatened him on the date of incident by pointing pistol. He was confronted with the statement ExPW2/X wherein it was not found recorded. Meaning thereby, there is a material improvement in the testimony of PW2 regarding alleged use of weapon. Allegation in this regard appears to be general in nature, which could not be substantiated.
f) Further, in the present case, surprisingly, the original complaint allegedly made by PW1 Jai Bhagwan to the police, could not be brought on SC No.76/14 State vs Birmati etc., (Page 14 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC record. PW1 was given more than sufficient opportunities and he sought time to produce original complaint but till date original complaint has not been filed on record. During the testimony of PW4 Insp. Sanjeev Kumar it has come on the record that investigation was carried only on the basis of photo copy of the alleged complaint. Even if original document/complaint was not available for what so ever reason ,the same could have been proved by adducing secondary evidence. But nothing was done in this regard.
g) During his cross examination, PW1 replied that he had stored plastic scrap in the said plot but he has not having any license for the same. He has not filed any document to show that he had stored plastic scrap in the said plot. PW1 admitted that he was having stock register to show quantity of said scrap but said register was destroyed in the said fire. He further replied that he has not stated the aforesaid fact to the police that register was destroyed in the said fire. He admitted that there was no fire inside the room and he had not maintained the record of the goods which were not SC No.76/14 State vs Birmati etc., (Page 15 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC got burnt in the said fire. It is a fact of common knowledge that book of accounts or stock register etc. are kept in safe place /room and not in open area. Plastic scrap was lying in the open area in the plot. It has come on record that there was no fire in the room. That being so, how the stock register could be burnt in the fire.
h) PW1 Jai Bhagwan during his cross
examination replied that he had made a call to
police about the incident on 17.5.2008 and he had given the complaint in writing on 20.5.2008 and another on 23.5.2008. He was asked to verify from the record, such complaint but he could not found any such complaint except photocopy of the complaint dated 23.5.2008. He further replied that during the period from 17.5.2008 to 20.5.2008, police has recorded his statement but no such statement is on the record. Even PW1 himself could not trace any such statement. This also goes against the prosecution.
i) PW2 Ashish, during his cross examination replied that police had recorded his statement twice SC No.76/14 State vs Birmati etc., (Page 16 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC . First statement was recorded on the day of incident i.e 17.5.2008 and second statement was recorded after 5-6 months of the incident but there is no such statement dated 17.5.2008 on record. He further replied that his second statement was recorded by S.I Gaurav. Said S.I Gaurav has appeared in witness box as PW3. During his cross examination he replied that he did not record any statement of any person in the present case.
j) S.I Gaurav Kumar, PW3, who has been one of the IO of the present case , during his cross examination admitted that he did not recover any incriminating material i.e container, match box etc in the present case and he did not find any proof as to what had got burnt in the present case. Although, it is the case of the prosecution that fire brigade came at the spot but no such report was collected or filed on record. Insp. Sanjeev Kumar(PW4) admitted that he had not collected any report from the office of fire brigade to know the reason of fire. This all has created a serious doubt in the story of the prosecution.
SC No.76/14 State vs Birmati etc., (Page 17 of 21 )
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
19 In Vadivelu Thevar v. The State of Madras
AIR 1957 SC 614 classified witnesses into three
categories, namely, (i) those that are wholly reliable,
(ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In the case of the first category the Courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.
20 The contradictions, improvements and inconsistencies in the testimonies of prosecution witnesses as indicated, forced me to reject the case of prosecution and to bring the present case in SC No.76/14 State vs Birmati etc., (Page 18 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC second category of above mentioned law. In the present case, it would not be safe to place reliance upon such quality of evidence in a criminal trial where prosecution was under obligation to prove the case beyond reasonable doubt.
21 Moreover, in the present case alleged incident is dated 17.5.2008, whereas the present FIR has been registered on 08.11.2008 i.e after about six months from the incident. Prosecution has failed to explain the aforesaid six month delay in registration of FIR. It has not been explained as to how such a long time was taken by the investigating agencies to register an FIR which is fatal to the present case .
22 In this context, I may refer with profit to the authority in State of H.P.v.Gian Chand,(2001) 6 SCC 71 wherein a three-Judge Bench of Hon,ble Supreme Court has opined that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the SC No.76/14 State vs Birmati etc., (Page 19 of 21 ) D.O.D 3.12..2014 FIR no. 465/08 P.S S.P Badli u/s 436/448/506/34 IPC same solely on the ground of delay. If the explanation offered is satisfactory and there is no possibility of embellishment, the delay should not be treated as fatal to the case of the prosecution.
23 Scrutinized on the anvil of the aforesaid enunciation of law, I am disposed to think that the case at hand does reveal, as discussed herein above that the absence of spontaneity in the lodgement of the FIR has created a color version.
24 In the background of the fact, the prosecution having failed to establish and prove the allegations against the accused persons and having failed to bring on record sufficient evidence against them to connect them conclusively to the commission of the offence, benefit of doubt is being given to the accused persons Birmati, Dharamvir and Karamvir , who are hereby acquitted of the charges under Section 448/506/436 /34 IPC . Their sureties stands discharged.
SC No.76/14 State vs Birmati etc., (Page 20 of 21 )
D.O.D 3.12..2014 FIR no. 465/08
P.S S.P Badli
u/s 436/448/506/34 IPC
25 In terms of section 437(A) CrPC, accused
persons are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
26 File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 03.12.2014 ASJ-5, North/ Rohini Court SC No.76/14 State vs Birmati etc., (Page 21 of 21 )