Delhi District Court
Vijay Kumar Aggarwal vs . Devender Saini & Ors. on 24 January, 2020
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
Vijay Kumar Aggarwal Vs. Devender Saini & Ors.
PS Keshav Puram
U/s 448/352/506 IPC
Date of Institution : 11.09.2009
Date of Judgment : 24.01.2020
JUDGMENT
(1) Serial number of the case : 10562/2016 (2) Name of the complainant : Vijay Kumar Aggarwal S/o.: Late Sh. Onkar Mal Aggarwal R/o.: 1515/108, Anaj Mandi Road, Tri Nagar, Delhi (3) Name of the accused : (1) Devender Saini S/o Late Sh. Mange Ram (2) Suresh Saini S/o Late Sh. Mange Ram Both R/o 1536/108, Anaj Mandi Road Tri Nagar, Delhi (3) Surender (PO vide order dated 19.09.2012) (4) Offence complained of : Under Section 448/352/506 IPC (5) Plea of the accused : Pleaded not guilty (6) Final Order : Acquittal BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that the accused have their house opposite the bangle shop at the ground floor of the house of the complainant and had raised illegal constructions in the narrow gali where the house/shop were situated in respect of which CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 1 of 8 complainant made a complaint to MCD on 21.07.2009 which infuriated the accused who abused the complainant / his family in respect of which a complaint was lodged with DCP on 25.07.2009 but no action was taken whereafter on 20.08.2009, the accused no. 1 and 2 along with their associates threatened the complainant/ his family member with dire consequences in respect of which a complaint was made to Police Commissioner on 03.08.2009 but again no action was taken and the accused no. 1 again threatened the complainant on 09.08.2009 in respect of which another complaint was made to SHO on 10.08.2009 and further complaints were also made on 30.08.2009 and 31.08.2009 but no action was taken.
2. On 05.09.2009, at about 9:00 pm when the complainant was sitting in his shop doing account work, the accused no. 1 and 3 entered his shop without any permission or consent of the complainant and both accused started abusing and threatened the complainant to withdraw the complaints or he and his family would be killed. In the meanwhile, accused no. 3 took out a revolver from his pant and put it on the glass counter gesturing that he would use it but he put it on the head of the complainant and threatened to kill the complainant / his son and left while abusing. A complaint dated 06.09.2009 was made to the SHO PS Keshav Puram as well as Chowky Incharge Shanti Nagar but no action was taken whereupon the present case was filed.
CIS No. 10562/2016Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 2 of 8
3. The complainant had also filed an application under Section 156 (3) Cr.P.C which was dismissed by Ld. Predecessor vide order dated 13.01.2010 whereafter the complainant examined only himself at the stage of pre-summoning and relied upon various complaints ie Ex.CW-1/A to Ex.CW-1/E after consideration of which all three accused were summoned by the Ld Predecessor for the commission of offences under Section 352/448/506-1/34 IPC vide order dated 08.07.2011 whereafter accused no. 1 and 2 entered their appearance and were admitted to bail but accused Surender did not appear and he was declared PO by the Ld. Predecessor vide order dated 19.09.2012.
4. Thereafter formal notice was served upon accused no. 1 and 2 for commission of offences under Section 352/448/506 IPC to which accused pleaded not guilty and claimed trial.
5. The complainant again examined himself at the post notice stage wherein he testified that he was residing at 1515/108 Anaj Mandi Road, Tri Nagar, Delhi with his family ie., wife, son and daughter in law where he was running a bangles store in the name and style of Amit Bhai Churi Wala and the accused were residing opposite his house and running their shop on the ground floor. He further testified that on 05.09.2009, when he was sitting in his shop at around 9:00 p.m and working on his business accounts, the accused Devender and Surender came to his shop and accused Surender (since PO) told him to withdraw the complaints filed against CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 3 of 8 Devender Saini and Suresh Saini and Surender also took out a revolver and put it on glass counter and Surender abused him and accused Devender stood there while accused Suresh stood outside. The complainant also relied on the complaint made to DCP on 25.07.2009 ie., Ex.CW-1/A, complaint to commissioner dated 03.08.2009 ie., Ex.CW-1/B, complaint to SHO dated 10.08.2009 ie., Ex.CW-1/C, complaint to SHO dated 02.09.2009 Ex.CW1/D and complaint to chowki incharge Shanti Nagar Ex.CW-1/E. He was duly cross-examined by the Ld Counsel for the accused.
6. The statement of both accused were thereafter recorded under Section 281 read with Section 313 of Code of Criminal Procedure wherein the entire incriminating evidence was put to them and they both denied the incident dated 05.09.2009 and opted to lead defence evidence.
7. In their defence, the accused examined Sh. Amandeep Singh as DW-1 but the accused closed their defence evidence before completion of cross-examination of DW-1.
8. Final arguments were then advanced by Ld Counsel for the complainant as well as by the Ld. Counsel for the accused which have been carefully considered alongwith entire evidence on record and written arguments.
9. Being a criminal trial, it was for the complainant to prove his case CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 4 of 8 beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the complainant to ensure that his case is able to stand on its own legs. The complainant cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the version of the complainant.
10. Since, notice has been served upon the accused for the commission of offence under Section 352/448/506 IPC, it was for the complainant to prove that the accused had assaulted/used criminal force against him otherwise than on grave and sudden provocation given by the complainant after committing trespass in the shop of the complainant ie having entered the shop in possession of the complainant with intent to intimidate, insult or annoy the complainant and they had also threatened the complainant. However, the complainant has failed to lead cogent, consistent and credit-worthy evidence to prove his case.
11. For instance, while the complainant has testified that on 05.09.2009, at around 9:00 p.m when he was working on his business accounts, the accused Devender and Surender (since PO) had come to his shop and accused Surender (since PO) told him to withdraw the complaints filed against Devender Saini and Suresh Saini and Surender (since PO) also took out a revolver and put it on glass counter and it was Surender (since PO) who abused him while accused Devender stood there and accused Suresh stood outside, CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 5 of 8 the testimony is inconsistent with the initial version of the complainant as in his initial complaint under Section 200 CrPC as well as complaint Ex CW1/E, the complainant has specifically stated that the accused Devender and Surender had both come into his shop on 05.09.2009 and both of them had abused and threatened him and there is not even a whisper of allegation as to the accused Suresh being present there as well.
12. That being so, it was for the complainant to furnish some explanation as to why the role of accused Suresh was not disclosed prior to his evidence in the Court as well as to explain the reason of modification of role attributed to the accused Devender which the complainant failed to do. In the absence of any such explanation, the sole self serving testimony of the complainant is rendered uncreditworthy and the possibility of the testimony of the complainant being afterthought so as to implicate the accused cannot be excluded, the benefit of which accrues to the accused.
13. Be that as it may, the testimony of complainant even if accepted in its entirety does not even remotely imply that the accused Devender had also abused the complainant or threatened him or gestured with a revolver himself nor there is any averment in the entire evidence of the complainant as to the accused Suresh having entered the shop of the complainant at any point of time or having threatened the complainant or as to accused Suresh having assaulted or used criminal force qua the complainant on the date of the incident. That CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 6 of 8 being so, the ingredients of Section 448/352/506 IPC remain unsatisfied qua accused Suresh and ingredients of Section 352/506 IPC remain unfulfilled qua accused Devender.
14. It is also pertinent to note here that the complainant has also failed to examine any independent witness including neighbors/shop keepers to even corroborate his stand especially as to the accused Devender having criminally trespassed into his shop on the day of the incident in the absence of which the sole self serving testimony of the complainant does not inspire confidence of the Court and the benefit of the same accrues to the accused and it is held that sufficient credible testimony has not come on record to convict accused Devender for offence under Section 448 IPC as well.
Decision
15. In view of aforesaid facts and circumstances, from the evidence as led, as the complainant has failed to prove its case beyond reasonable doubt qua accused Devender and Suresh Both S/o Sh. Mange Ram are hereby acquitted for the offence under Section 448/ 352/ 506 IPC in the present case.
16. The accused are directed to furnish fresh personal bond in a sum of Rs. 20,000/- each with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon them.
CIS No. 10562/2016Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 7 of 8
17. File be consigned to the Record Room after necessary compliance to be revived as and when the accused Surender is apprehended.
Announced in the Open Court
on 24.01.2020 POOJA Digitally signed by
POOJA AGGARWAL
AGGARWAL Date: 2020.01.24
11:56:38 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 08 pages and each page bears my signature. POOJA Digitally signed by POOJA AGGARWAL AGGARWAL Date: +0530 2020.01.24 11:56:44 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi CIS No. 10562/2016 Vijay Kumar Aggarwal Vs. Devender Saini PS Keshav Puram Page 8 of 8