Delhi District Court
Roshan Lal vs State (Nct Of Delhi) on 15 May, 2019
In the court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District.
Saket Court, New Delhi
Criminal Appeal No. 8198/2016
In the matter of
1. Roshan Lal
S/o Radhey Shyam
R/o H. No. 219, Nai Basti,
Maidan Garhi, New Delhi.
2. Chandrumal
S/o Radhey Shyam
R/o H. No. 219, Nai Basti,
Maidan Garhi, New Delhi.
3. Asha Ram @ Asha Lal
S/o Dalle Ram
R/o H. No. 224, Nai Basti,
Maidan Garhi, New Delhi. .... Appellants/Accused persons
Versus
State (NCT of Delhi) .... Respondent
FIR No. 444/2007
PS Mehrauli
U/s 323/354/34 IPC
JUDGMENT
1. By way of present appeal, appellants have challenged the impugned judgment dated 29.03.2016 and order on sentence dated CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 1 of 12 25.04.2016 whereby the Ld. MM convicted the appellants for commission of offence u/s 323/354/34 IPC and sentenced the appellant/accused Asha Ram to pay fine of Rs.5,000/ in the court u/s 357 CrPC and to pay compensation of Rs.15,000/ to the complainant for the offence u/s 323 IPC in default to undergo SI for three months. Appellants/accused persons, namely, Roshan Lal and Chandrumal are sentenced to pay fine of Rs.5,000/ each in each offence in the court u/s 357 CrPC and to pay compensation of Rs.30,000/ each to the complainant for the offence u/s 323/354/34 IPC and in default to undergo simple imprisonment for a period of three months.
2. Prosecution story as per chargesheet in brief is that on receiving DD No. 11 dated 13.06.2007 regarding quarrel, HC Phool Chand alongwith Ct. Om Prakash reached the spot i.e. House No. 791, Nai Basti Gaon, Maidangarhi, Delhi where he found the injured Sunita Dahiya, thereafter her medical examination was conducted at AIIMS, then her statement was recorded in which she alleged that in front of their house, one government tube well is installed having less pressure, and due to this they had a quarrel with Roshan, Asha Ram, Chandrumal and Baba Deep Chand who alleged that they do not operate the tube well for sufficient time, therefore, these persons could not get the water, and in this regard, they have already made complaint against them in the police station. She further alleged that on 13.06.2007 in day time, she alongwith her husband were going to the bank, however, at around 1.00 p.m, JE, AE and one worker alongwith son of Balram MLA came at the tube well in front of their house, then turned towards other tube wells at some distance. Therefore, she alongwith her husband followed them and thereafter, CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 2 of 12 her husband told her to get back to the house as their daughter was alone, then she returned to her house and while she was standing on the gate, Asha Ram came and started abusing her, then she told him that she is also calling her brothers, thereafter Asha Ram pulled her with hairs out of the house, in the meanwhile, Roshan, Chandrumal and Baba Deep Chand came. Thereafter, Asha Ram tried to hit him with some sharp edged weapon on her hand, however, she had taken the said blow on her head, thereby suffered injuries. In the meanwhile, Roshan Lal torn her kurta and Chandrumal put her hand on salwar. Twothree ladies, namely, Savitri, Kamla and wife of Manohar Lal Sharma came from the neighbourhood and saved her, then all fled away from the spot. Thereafter, her tenant Shweta called at 100 number and police got conducted her medical examination. Pursuant to the statement, the FIR was registered.
3. During investigation, accused persons were arrested. Statement of witnesses were recorded. MLC was collected and on completion of investigation, chargesheet was filed.
4. Vide order dated 14.03.2013, charges u/s 354/324/34 IPC were framed against accused Roshan Lal and Chandrumal. Accused Deep Dass and Asha Ram were charged for offence u/s 324/34 IPC.
5. During proceedings, accused Deep Dass @ Baba Deep Chand died and proceedings against him stand abated vide order dated 05.08.2015. Prosecution to substantiate its case examined seven witnesses. The summary detail of the prosecution witnesses is reproduced as under.
6. PW1 Sunita Dahiya stated that because of the tube well, the accused used to quarrel with her, and on 13.06.2007 between 12.00 to CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 3 of 12 1.00 p.m, when she was standing near the gate, the officials of Delhi Jal Board came for checking the tube well. Then her husband accompanied them and she also accompanied her husband, however came back as her child was to return from school and when she was standing near the gate, Asha Ram reached and started abusing her. Then she told them that she should call her brother or husband. Asha Ram pulled her outside the house with her hairs. In the meanwhile, Deep Chand, Roshan Lal and Chandrumal also came there and Asha Ram hit her with sharp weapon. Then she raised her hand to save her head thereby suffered injuries. Roshan Lal torn her shirt from the back and accused Chandrumal and Roshan Lal, put their hand under her salwar and on hearing alarm, 23 neighbours came. Her tenant Shweta called at 100 number. Police reached at the spot and got admitted her in AIIMS Hospital. In crossexamination stated that prior to the incident she also filed complaint against the accused persons for quarrel and denied suggestion that because of rivalry, she filed this complaint. She further stated 1012 public persons came after hearing her voice including Kamla, Shweta and wife of M. L. Sharma. Accused beaten her between the house and the gate, however Deep Das was present he did not beat her. She stated that she did not hand over her torn clothes to the police and police recorded her statement twice. PW2 Savitri stated that she do not know anything about this case, however, Sunita Dahiya is her neighbour. Roshan Lal and other accused are also her neighbours and she did not know anything about quarrel between Sunita Dahiya and Roshan Lal. On being declared hostile, in crossexamination by Ld. Addl. PP, she denied suggestion that accused Roshan, Chandru, Asha Ram and Deep Dass were hitting CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 4 of 12 complainant Sunita Dahiya and she saved her. PW4 Smt. Mahesh Kanta stated that complainant is her neighbour and she saw all the four accused quarreling with the complainant and she was crying bachao bachao. Then she saw bleeding from her hand. Other public persons were also present including Kamla who intervened for the rescue of the complainant and thereafter all the accused fled away from the spot. In crossexamination stated that incident happened in front of the house of complainant Sunita near the tube well and there is no permanent government care taker posted for the operation of the said tube well. PW5 Kamla stated that during the day time, she heard commotion near the house of complainant and she came outside, however the matter was already sorted out and she saw Sunita suffered injuries and bleeding from her hand but she had not seen any accused persons on the spot. On being declared hostile, in crossexamination by Ld. Addl. PP she denied suggestion that she had seen all the accused persons beating Sunita at the spot and she had told the same to the police.
7. PW6 Rajbir Singh, Medical Record Technician exhibited the MLC of injured. PW7 HC Phool Singh IO who recorded the statement of complainant and thereafter arrested the accused persons and filed the chargesheet. In crossexamination stated that he had not received any torn clothes of the complainant neither seized any weapon of offence. PW3 Om Prakash accompanied the IO to the spot. In crossexamination stated that he had brought the injured from hospital to the chowki and not to the spot, and statement of injured was also recorded at chowki.
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8. Accused in their statement u/s 313 CrPC denied the incriminating circumstances put to them and raised the plea that the complainant and her husband stopped the supply of water to their houses intentionally because of the caste discrimination as they belong to SC category and the complainant and her husband belong to Jaat community. The complainant and her husband also did not allow the official of DJB to provide water supply line and false story was concocted against them due to personal grudge and caste difference.
9. In defence, accused persons examined DW1 Gyan Chand, DW2 Shiv Dayal and DW3 Bir Singh. DW1 Gyan Chand stated that on the day of incident, the MLA visited their area and instructed complainant to release the unauthorized possession of tube well and at that time, none of the accused persons were present at the spot and there was no alleged incident of beating given to the complainant or any misbehaviour or harassment had taken place with her. In cross examination stated that he cannot tell if the accused persons had gone to the house of Sunita in mid day, misbehaved with her or gave her beatings. DW2 Shiv Dayal stated that on the said day, the JE and son of MLA assured to provide separate water line, thereafter, complainant and her husband started abusing accused. In the meanwhile, JE and MLA left the spot and he returned back to home and later came to know that complainant falsely implicated the accused persons in the present case. In crossexamination stated that police visited him and on enquiry, they told that accused persons have been falsely implicated. DW3 Bir Singh stated that on their complaint MLA directed Sunita to provide water from tube well of Delhi Jal Board, however she became aggressive and told that if anyone stands CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 6 of 12 against her, she would falsely implicate them and at that time, accused persons were not present at the spot. He however in crossexamination stated that he cannot say whether the accused went to the house of complainant Sunita at around 12.00 p.m mid day and misbehaved with her.
10. Ld counsel for the appellants/accused persons submitted that the entire case of the prosecution is dependent upon the testimony of PW1, however, the testimony of PW1 cannot be relied upon because of the previous enmity and her statement is not corroborated through the independent witnesses i.e. PW2, PW4 and PW5. Ld counsel submitted that the complainant herself admitted that she operates the tube well. Ld. Counsel submitted that the appellants are implicated because they belong to Scheduled Caste category and complainant belongs to a jaat community. Ld counsel submitted that the appellants are respected persons and even one of the appellant is government servant and cannot indulge in such activities. Ld counsel further submitted that the appellants and the complainant are neighbour and there is no occasion for the present appellants to assault and molest the complainant. Ld counsel submitted that the appellants are respectables and do not indulge in any such kind of activities having no such criminal antecedents. Ld counsel submitted that the trial court wrongly relied upon the testimony of PW1. However testimony of PW1 is not at all credible, therefore the appellants are entitled to be acquitted and impugned judgment and order on sentence are liable to be set aside.
11. Ld. Addl. PP, on the other hand, submitted that the trial court has passed detailed and reasoned judgment and there is no infirmity in the said judgment. The testimony of PW1/complainant remain CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 7 of 12 unimpeached. Her testimony is also duly corroborated with the medical evident and incident of beating is also corroborated by the other witnesses. Ld Addl. PP submitted that there is no merit in the present appeal. Hence, the present appeal is liable to be dismissed.
12. Arguments heard. Record perused.
13. The brief background facts as emerged from the testimony of the prosecution witnesses is that there was shortage of water supply in the area where the complainant and accused persons resides, and there used to be frequent quarrels between complainant and accused persons over water issue. Complainant/PW1 is found to be managing the government tube well installed in front of her house, and just sometime before the incident, the official of DJB alongwith son of MLA inspected the said place.
14. The present case relates to the incident of beating and molestation committed by the accused by tearing the kurta and putting hand in the salwar of the complainant. Prosecution to substantiate these allegations examined complainant PW1 Sunita Dahiya, the neighbours PW2 Savitri, PW4 Smt. Mahesh Kanta, wife of M. L. Sharma and PW5 Kamla. The complainant in her statement Ex. PW 1/A stated that there used to be quarrel with accused Roshan, Asha Ram, Chandrumal and Baba Deep Chand over the fact that her side operate the tube well for less time due to which they are getting less water and in this regard, they had also made a complaint against them in the police station. The complainant/PW1 in her testimony also admitted the said fact and stated that because of this there used to be quarrel. PW1 in her statement Ex. PW 1/A stated that when her husband left with the official of DJB and son of MLA, and when she CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 8 of 12 was standing at the gate, Asha Ram abused her, pulled her out from the house and in the meanwhile, Roshan, Chandrumal and Baba Deep Chand came. Asha Ram hit her with some sharp weapon. Roshan torn her kurta from the back and Chandrumal put his hand on her salwar. In the meanwhile ladies namely Savitri, Kamla and wife of Mohan Lal Sharma came and saved her. This witness in her statement before the police stated that when she was standing at the gate, she was abused by the accused and thereafter accused Asha Ram pulled her out of the house and then accused Roshan Lal torn her shirt from the back and Chandrumal also put his hand on her salwar. However, in her testimony stated that Asha Ram caught hold of her hair, and in the meanwhile Deep Chand, Chandrumal and Roshan Lal also came and accused Roshan Lal torn her shirt from the back. Chandrumal and Roshan Lal put their hand under her salwar. This witness in her testimony included the name of accused Roshan Lal over the factum of putting hand on her salwar which was not the part of her statement Ex. PW 1/A before the police. Admittedly, as per the testimony of the IO, he had not taken into possession any torn kameez or salwar. This witness named PW2 Savitri, PW4 Mahesh Kanta, wife of M. L. Sharma and PW5 Kamla as the persons who saved her from the accused persons.
15. Now, it is pertinent to appreciate the testimony of these three independent neighbours. PW5 Smt. Kamla stated that on hearing the commotion, she reached the spot and saw Sunita suffered injuries but she did not see any of the accused at the spot. This PW only mentioned about the injuries suffered by Sunita and not stated anything about the act of molestation committed by the accused CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 9 of 12 persons. On being declared hostile, in the crossexamination also nothing is suggested to this witness that the accused persons molested the complainant Sunita. It is only suggested to this witness that the accused were beating the complainant. PW4 Mahesh Kanta only deposed that she had seen the accused quarreling with the complainant and also saw that Sunita was bleeding from her hands, and she alongwith Kamla and Savitri intervened to rescue her. This witness also not deposed anything about the act of molestation or tearing of clothes or putting the hands under the salwar of the complainant. PW2 Savitri not at all supported the prosecution case at all but in cross examination of this witness also nothing suggested that the complainant in any manner was molested when she saved her.
16. As far as the factum of beating/quarrel is concerned, the statement of PW1 Sunita is duly corroborated with the statement of PW4 and PW5. However the act of molestation i.e. tearing of kurta and putting hand on the salwar is not supported by any of the witnesses. Admittedly, there is prior enmity over water issue between the accused persons and the complainant, and complaint in this regard against PW1 is already lodged in the police station. The complainant/PW1 improved her statement over role of accused putting hand over the salwar in her testimony. The incident as per the testimony of the complainant appears to be between 1200 p.m to 1.00 p.m, the rukka was prepared at about 4.30 p.m. The IO PW7 HC Phool Singh stated that he recorded the statement of the complainant in the hospital however PW3 Ct Om Prakash stated that he alone took the injured to the hospital and from the hospital she was taken to the chowki where her statement was recorded. There is substantial delay CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 10 of 12 of around three hours in recording the statement of the complainant. There is also anomaly in the statement of witnesses over the place of recording of statement.
17. Thus, considering the factum of previous enmity between the accused side and the complainant side, and the fact that the act of molestation is also not supported from the statement of other witnesses, and the complainant is also found improved over her version over the act of molestation, her statement to the extent of molestation cannot be relied upon.
18. However her statement regarding the factum of beating is also duly corroborated with the MLC. As per the MLC Ex. PW 6/A, PW1 is found to have suffered simple injuries however there are cuttings in the MLC regarding whether the injuries were from blunt object or sharp object. Admittedly, the prosecution has not examined the concerned doctor and only exhibited the MLC through Record Clerk, therefore, in these circumstances, the injuries suffered cannot be held to be inflicted through any sharp object. The police even had not seized any sharp object. Accordingly, no offence u/s 324 IPC is made out and the trial court rightly convicted the accused persons only u/s 323/34 IPC.
19. As per the defence version, the accused tried to project that they were not present at the time of incident, however the said fact is not proved through their witnesses. On the contrary in their statements u/s 313 CrPC, the accused stated that at the time of incident, they were doing enquiries with the officials of DJB, therefore, the defence of the accused do not appear to be credible. It is a settled law that mere false defence cannot be held to be incriminating against the accused if not CA No. 8198/2016, Roshan Lal & ors v. State dated 15.05.2019 Page no. 11 of 12 found supporting the prosecution case.
20. Vide impugned judgment, the Ld. Trial Court also convicted the accused for offence u/s 354/34 IPC on the basis of the statement of the complainant. However on reappreciation of evidence, I do not find the statement of complainant, as discussed above, credible over the factum of act of molestation, hence, the prosecution not able to prove the offence against the accused u/s 354/34 IPC beyond reasonable doubt.
21. In view of the above discussions, the impugned judgment dated 29.03.2016 to the extent of convicting the appellants/accused u/s 323/34 IPC is confirmed, but the accused persons are acquitted of the offence u/s 354/34 IPC, consequently, impugned order on sentence qua offence u/s 354/34 IPC is also set aside. The impugned order of sentence u/s 323/34 IPC qua accused Roshan Lal, Chandrumal and Asha Ram @ Asha Lal is maintained. Appeal disposed of accordingly.
22. Copy of this judgment alongwith TCR be sent back to the Trial Court.
23. Copy of this judgment be given dasti to the appellants/accused persons.
24. Appeal file be consigned to record room.
Announced in the open Court (AJAY KUMAR JAIN)
On 15th May, 2019. ASJ02 (South)
Saket Courts / New Delhi
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