Delhi District Court
State vs . Harender Sharma & Ors. on 13 April, 2015
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH WEST)-01, MAHILA COURT, DWARKA, NEW DELHI
STATE VS. Harender Sharma & Ors.
FIR NO: 200/11
P. S. Chhawla
Case ID No. 02405R0019902013
Date of institution of case : 29.01.2013
Date on which case reserved for judgment : 31.03.2015
Date of judgment : 13.04.2015
Advocates appearing in the case :-
Ms. Vandna Chauhan, Ld. APP for State
Sh. K.C. Tyagi, Ld. counsel for accused persons.
JUDGEMENT U/S 355 Cr.P.C.:
a) Date of offence : 16.09.2011
b) Offence complained of : U/s 451/354/509/34 IPC
c) Name of complainant : Smt. Bimla Devi
d) Name of accused, his parentage, : 1. Harender Sharma
local & permanent residence s/o Kishan Dutt Sharam
2. Kishan Dutt Sharma
s/o Late Sh. Madan Lal
both r/o VPO Pandwala Kalan,
New Delhi.
e) Plea of accused : Accused are falsely implicated.
f) Final order : Accused are acquitted.
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, accused Harender Sharma and Kishan Dutt Sharma have been charged for offences u/s 451/354/509/34 IPC on the ground that on 16.09.2011 at about 9.15 p.m, in front of house of complainant within jurisdiction of PS Chhawla, they abused complainant FIR no. 200/11 ; PS: Chhawla Page no. 1/21 St vs. Harender Sharma & ors.
and on 17.09.2011 at about 5.15 p.m both of them committed house trespass in the house of complainant and abused and assaulted/used criminal force against complainant Smt. Bimla Devi with intention to outrage and insult her modesty.
2. The prosecution has examined four witnesses on its behalf to prove the case against accused persons.
3. PW1 is complainant Smt. Bimla Devi who stated in her examination-
in-chief dated 24.05.2013 that around one and half years back, Kishan Dutt came outside his house in the evening and started abusing her and when she objected, he assaulted her and pushed her and she called at 100 number but Kishan Dutt ran from the place before arrival of the police. She stated that police officials came and she narrated the incident to them and told them that Kishan Dutt was drunk and he abused and assaulted her and police officials went to the house of Kishan Dutt but did not take any action and told her that they will take action next morning.
4. PW1 further stated that in the next morning, accused Harender who was in drunken condition, came near her when she was returning from her plot and he misbehaved with her verbally. She stated that she entered her house but accused Harender kept on abusing her in filthy language and when she was standing at the gate of the house, Harender pulled her hand and she fell on the ground and sustained injuries and her garments were also torn in this process and in the meantime, Kishan Dutt also came there and Harender threatened to kill both her sons. She stated that she called police at 100 number and police officials came and she narrated the incident to them. She exhibited her complaint given before police as Ex.
FIR no. 200/11 ; PS: Chhawla Page no. 2/21 St vs. Harender Sharma & ors.
PW1/A and identified her thumb impression on the complaint. In her further examination-in-chief dated 24.08.2013, MHC(M) produced one sealed pulanda with seal of HS which was broken in court and one torn blouse was taken out from the pulanda and it was correctly identified by PW1 as belonging to her and was exhibited as Ex. P1. She correctly identified the accused persons in court.
5. In her cross-examination by Ld. Defence counsel, PW1 admitted that they had previous enmity with accused persons and there is a previous dispute regarding one passage between her family and family of the accused. She also admitted that she has deposed as witness in FIR no. 116/07, P.S. J.P. Kalan in court of Sh. Sushant Changotra, Ld. MM, Dwarka against family members of the accused. She stated that she does not remember how many civil litigations are pending between them and how many civil litigations have been decided.
6. PW1 further stated in her cross-examination that she does not know whose house was there at the spot where accused Harender abused her. She further stated that she does not remember the khasra number of her plot. She stated that only her husband can tell why they want to install gate on khasra no. 105/56. She stated that there are two shops in her house having their gate on the main road and one shop is vacant and in the other shop, they are doing business of grocery. She admitted that at the time of incident, one shop was given on rent to one Halwai. She denied the suggestion that on 16.09.2011, halwai had opened his shop till 11 p.m at night. She denied the suggestion that plot of accused and his family members is adjacent to her plot and voluntarily stated that walking FIR no. 200/11 ; PS: Chhawla Page no. 3/21 St vs. Harender Sharma & ors.
distance between her plot and plot of accused is of 5-7 minutes.
7. PW1 further stated in her cross-examination that she does not know whether any civil suit for permanent and mandatory injunction was filed by her against the accused persons and whether any suit was pending between the parties in SDM court. She stated that she does not know whether any civil suit has been decreed against her husband and family members. She admitted that kalandra u/s 107/150 Cr.P.C was prepared by the police against both the parties and both the parties were bound for keeping peace and good behaviour by the ACP.
8. PW1 stated that case property Ex. P1 was handed over by her to the IO on the same date. She denied the suggestion that she had handed over the case property to IO on 23.10.2011 after more than one month. She stated that accused persons abused her in such a filthy language that she cannot explain in court.
9. In her further cross-examination dated 29.11.2013, PW1 stated that she does not remember the mobile number from which she had made call to the police at 100 number. She denied the suggestion that any verbal complaint was made by accused Kishan Dutt to her husband on the evening of 16.09.2011 regarding the theft of bricks from stack of Kishan Dutt by her mother-in-law. She denied the suggestion that she, her son and her husband gave beatings to Kishan Dutt on 16.09.2011. She admitted that in year 2011, Kishan Dutt was on central government job but denied the suggestion that Kishan Dutt used to come late from his duty i.e. at about 10 p.m at night. She denied the suggestion that accused Kishan Dutt was not present at the spot on 17.09.2011. She further denied the FIR no. 200/11 ; PS: Chhawla Page no. 4/21 St vs. Harender Sharma & ors.
suggestion that she had lodged false complaint against the accused persons just to build up pressure upon them and her blouse was torn by herself. She denied the suggestion that she was deposing falsely.
10. Pw2 is Smt. Kamlesh who stated in her examination-in-chief dated 13.02.2014 that around two and half years back, during summer season at around 5-5.30 p.m, accused Harender abused Bimla Devi and she heard commotion and went outside her house and saw that accused Harender was pulling Bimla out of her house from the doorstep of house of Bimla. She stated that she intervened and asked him to leave Bimla and at that time, accused Kishan Dutt who is father of accused Harender, was also standing there outside house of Bimla Devi and was abusing Bimla Devi in filthy language. She alleged that about 20-25 persons had gathered at the spot and after her intervention, Bimla went inside her house and she went back to her house. She stated that accused Harender and his father also went away and thereafter, Bimla might have called police at 100 number but she does not know exactly. She further stated that after half an hour, police came and inquired from her and recorded her statement.
11. In her cross-examination by Ld. Defence counsel, PW2 stated that Bimla is her real sister and her husband Brahm Prakash is her Jija as well as Devar. She stated that she does not know whether Brahm Prakash and his brothers including her husband had lost the civil battle in civil cases regarding installation of the gate at private land of the accused persons. She admitted that accused persons had erected a wall on the land which was main core of the dispute between parties. She stated that walking distance between her house and Bimla's house is of five minutes. She FIR no. 200/11 ; PS: Chhawla Page no. 5/21 St vs. Harender Sharma & ors.
further stated that she can tell name of some of the persons who gathered at the spot and she told the names as Ram Kumar, Braham, Om and Savitri etc. She replied that she does not know whether Kishan Dutt had made complaint to Brahm Prakash regarding theft of bricks from his stakes.
12. PW3 is Smt. Urmila who stated that around 2 ½ to 3 years back, during summer season in the evening, she heard commotion from outside, so she went outside her house and saw that her Jethani Bimla was being pulled by accused Harender from outside her house, so she alongwith Kamlesh came to rescue Bimla and asked Harender why he was pulling Bimla on which he replied that he will beat Bimla. She stated that accused Kishan Dutt, who is father of Harender, was also present outside the house of Bimla Devi and he was asking Harender to pull out Bimla Devi from her house so that they could beat her and they were scolding Bimla Devi in filthy language and calling her "sasuri bahar aa". She further deposed that she and Kamlesh intervened and saved Bimla Devi and both accused persons went away. She alleged that accused persons were drunk at that time. She stated that Bimla Devi had called the police thereafter and she was inquired by the police after the third day of incident.
13. In her cross-examination by Ld. Defence counsel, PW3 admitted that complainant Bimla Devi and public witness Kamlesh are her real sisters and she also admitted that litigation is pending between family of the accused and their family over issue of installation of gate. She stated that she does not know whether accused persons had won the civil case FIR no. 200/11 ; PS: Chhawla Page no. 6/21 St vs. Harender Sharma & ors.
pending before Civil Judge, Tis Hazari wherein husband of complainant had been restrained permanently from installing the gate on the land of the accused persons.
14. PW3 further stated in her cross-examination that she does not know whether any kalandra was prepared by police u/s 107/150 Cr.P.C in 2007 vide DD No. 17A wherein husband and son of complainant Bimla were bound alongwith Kishan Dutt and Pradeep by the SEM court, Dwarka. She stated that distance between her house and house of Kamlesh and house of Bimla is about 15-20 feet. She stated that public persons namely Ishwar, Om, Raj and so many other persons had gathered at the spot. She further stated that male members of their family were not at home as they had gone to their job. She denied the suggestion that she was not present at the spot and she has given false statement. She further denied the suggestion that accused persons had been falsely implicated in this case due to property dispute and no such incident had occurred.
15. Pw4 is IO/SI Hari Singh who stated in his examination-in-chief dated 06.06.2014 that on 17.09.2011 on receipt of DD no. 46B Ex. PW4/A regarding quarrel, he alongwith constable reached at village Pandawala Kalan near Hanuman Mandir where he met complainant Smt. Bimla Devi and recorded her complaint already Ex. PW1/A. PW3 further stated that complainant was sent to RTR hospital for medical examination and he collected her MLC and prepared rukka Ex. PW4/B and got FIR registered which is Ex. PW4/C.
16. PW4 further deposed that he prepared site plan Ex. PW4/D and took possession of blouse of complainant vide Ex. PW4/E and arrested FIR no. 200/11 ; PS: Chhawla Page no. 7/21 St vs. Harender Sharma & ors.
accused persons vide arrest memos Ex. PW4/F and Ex. PW4/G respectively and conducted personal search of accused persons vide personal search memos Ex. PW4/H and Ex. PW4/I respectively.
17. In his cross-examination by Ld. Defence counsel, PW4 admitted that blouse of complainant was seized on 23.10.2011 and rukka was prepared on 23.09.2011. PW4 also admitted that kalandra u/s 107/150 Cr.P.C vide DD No. 59B dated 22.09.2011 was prepared by him and filed in the court of SEM, Dwarka against both the parties and whatever he had stated in Kalandra is correct. He stated that before registration of FIR, inquiries were going on as there were previous litigations of both civil and criminal nature pending between both the parties.
18. After closure of Prosecution Evidence, statement of accused persons u/s 313 Cr.P.C. was recorded in which they stated that they are innocent and preferred to lead Defence Evidence.
19. DW1 is accused Kishan Dutt who stepped into witness box after filing an application u/s 315 Cr.P.C which was duly allowed. In his examination- in-chief dated 09.10.2014, DW1 Kishan Dutt stated that in the morning of 16.09.2011, mother in law of complainant was stealing his bricks from the stacks which were installed in his plot and on his inquiry, she started abusing him and threatened him, so he left the place silently keeping in view the fact that mother-in-law of complainant is very old lady and thinking that he will complain to her son Brahm Prakash in the evening.
20. DW1 further stated that he was working as government servant in year 2011 and on 16.09.2011, when he returned from his duty at about 10 p.m, Brahm Prakash was sitting in front of his house on his halwai shop, FIR no. 200/11 ; PS: Chhawla Page no. 8/21 St vs. Harender Sharma & ors.
so he went and complained regarding theft of bricks by his mother but on listening about this fact, Brahm Prakash became furious and started shouting and pounced upon him and the complainant and her son Sandeep also started beating him. He further stated that in this scuffle, he was assaulted by the complainant and manhandled by Brahm Prakash and was beaten by fists and legs by their son Sandeep. He stated that he was rescued by the persons of the locality and he went away to his home silently. He further alleged that the incident of 17.09.2011 is completely false and complainant made false complaint against him to exert pressure upon his family so that they should allow her husband to install gate on their land. He stated that kalandra u/s 107/150 Cr.P.C was prepared by the police on her false complaint.
21. DW1 further stated that they had filed a suit in court of SDM titled as "Ravi Dutt & Anr. Vs. Ramanand & Ors." wherein SDM, Najafgarh vide order dated 08.02.2007 has granted status quo in respect of disputed land in khasra no. 105/56. He further stated that a civil suit filed by Brahm Prakash titled as "Brahm Prakash Vs. Ravi Dutt & Ors." was dismissed vide order dated 27.05.2009 and civil suit filed by DW1 titled as Kishan Lal @ Kishan Dutt Vs. Ramanand & Ors. was decreed in his favour by the Civil Judge, Tis Hazari vide order dated 16.07.2013. He exhibited the certified copies of the documents relating to DD no. 59B dated 22.09.2011, certified copy of kalandra in which complainant, her husband as well as DW-1 and his son were forwarded to SEM for facing inquiry u/s 107/150 Cr.PC. in FIR no. 200/11, certified copy of the statements of himself and his son, certified copy of DD No. 65B dated 02.05.2010, FIR no. 200/11 ; PS: Chhawla Page no. 9/21 St vs. Harender Sharma & ors.
certified copy of statement of husband of complainant and himself dated 24.11.2011, certified copy of DD No. 21A dated 17.09.2011, certified copy of statement of Harender in court of SEM dated 30.11.2014, certified copy of order and judgment dated 27.05.2009 in civil suit no. 138 of 2009, certified copy of judgment and decree dated 16.07.2013 in C.S no. 180/07 titled as Kishan Lal @ Kishan Dutt Vs. Ramanand & ors. as Ex. Dw1/1 to Ex. Dw1/11 respectively and copy of certified copy of SDM/RA dated 08.02.2007 in case no. 32/07 titled as Ravi Dutt Sharma etc. Vs. Ramanand & Ors. as mark X.
22. In his cross-examination by Ld. APP, DW1 admitted that he had not called PCR or at 100 number on 16.09.2011 when he saw mother-in-law of complainant stealing bricks from the plot. He further admitted that he did not make any complaint to the police or call at 100 number when he was given beatings by complainant, her husband and his son in the evening of 16.09.2011. He stated that he had sustained internal injuries due to the beatings but admitted that he had not visited any Doctor for his medical examination. He denied the suggestion that on 16.09.2011 at about 9.15 p.m., he alongwith his son Harender had abused the complainant in filthy language and on next day on 17.09.2011 at about 5.15 p.m, they both committed house trespass in the house of complainant and tried to outrage her modesty. He further denied the suggestion that on 17.09.2011, he had abused and assaulted the complainant under the influence of liquor.
23. DW2 is Sh. Lalit Kumar Vats who stated in his examination-in-chief dated 19.12.2014 that on 16.09.2011 in the morning, Kishan Dutt had told FIR no. 200/11 ; PS: Chhawla Page no. 10/21 St vs. Harender Sharma & ors.
him that mother-in-law of complainant was stealing the bricks from his stacks in his plot and when he inquired, she started abusing him in filthy language and threatened to teach him a lesson. DW2 further stated that at about 10 p.m, he was having rest after taking his meal when he heard cries of Kishan Dutt and he went outside his house and saw that Kishan Dutt was caught by Brahm Prakash i.e. husband of complainant and complainant was beating him with sandals and his son Sandeep was giving fist and kick blows to Kishan Dutt. He stated that some persons from locality also gathered there and they rescued Kishan Dutt from clutches of the complainant and her husband and son. He stated that he asked Kishan Dutt whether to call PCR but he refused and stated that he is an old person and it is beyond his reach to go to courts and he silently went to his house.
24. DW2 further stated that on 17.09.2011, no such incident as alleged by the complainant had occurred and complainant had lodged false and bogus complaint against accused because accused persons and family members of DW2 are joint owner of land in khasra no. 105/56 on which husband of complainant had tried to install gate and Kishan Dutt had filed civil suits in civil court against her husband and relatives and restraint order was passed in his favour by civil court wherein complainant's husband and brothers in law were restrained from installing any gate on the said land. He further stated that civil suit filed by Brahm Prakash against Kishan Dutt and others was dismissed and certified copies of orders have already been placed on record and due to this, to take revenge from Kishan Dutt, Brahm Prakash used his wife as complainant in FIR no. 200/11 ; PS: Chhawla Page no. 11/21 St vs. Harender Sharma & ors.
this case to file false and bogus complaints against Kishan Dutt.
25. In his cross-examination by Ld. APP, DW2 stated that he was known to Kishan Dutt since his birth and he has family relations with Kishan Dutt and he is co-owner of the joint property with accused Kishan Dutt. He admitted that he had not seen mother-in-law of the complainant stealing bricks from the plot of Kishan Dutt. He denied the suggestion that he was not present in his house on 16.09.2011 and has not seen any quarrel between complainant and accused persons. He stated that accused Kishan Dutt was not having any serious injury on his person and he refused to go to the hospital for medical examination.
26. DW2 admitted that Kishan Dutt had not made any call at 100 number on 16.09.2011 and DW2 also had not made any call at 100 number. He denied the suggestion that Kishan Dutt was not beaten up by complainant, her son and husband due to which Kishan Dutt had not made any call at 100 number and had not gone for his medical examination. He denied the suggestion that on 16.09.2011 at about 9.15 p.m, both the accused persons had abused the complainant in filthy language and thereafter on 17.09.2011 at about 5.15 p.m, both accused persons had committed house trespass in the house of the complainant and abused and assaulted her and outraged her modesty. He admitted that the judgment in civil suit at Tis Hazari court titled as Kishan Dutt Vs. Brahm Prakash was pronounced after the filing of the present case. He denied the suggestion that since the judgment was pronounced after the filing of the present case, therefore there is no reason for the complainant to take revenge from Kishan Dutt on the basis of said judgment.
FIR no. 200/11 ; PS: Chhawla Page no. 12/21 St vs. Harender Sharma & ors.
27. After closure of defence evidence, case was fixed for final arguments. Final arguments were heard on last date and case was fixed for order for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
28. During final arguments, Ld. APP argued that complainant has reiterated all the facts mentioned in her complaint, in the examination-in- chief also and has withstood the test of cross-examination and her evidence has been duly corroborated by two public witnesses PW2 Smt. Kailash and PW3 Smt. Urmila, hence she prayed that this is a fit case for conviction of the accused persons.
29. On the other hand, Ld. Defence counsel stated that accused persons have been falsely implicated in this case without any rhyme and reason just to create pressure upon them since there were previous litigation between the parties but no incident as alleged by the complainant had ever occurred.
30. The Defence counsel argued that one kalandra u/s 107/150 Cr.P.C was prepared after the incident and both the parties were bound down for keeping peace and good behaviour by the court of SEM but thereafter police in connivance with the complainant and her husband, lodged the present FIR against the accused persons falsely just to put pressure upon the accused persons. He brought attention of the court to various documents filed by him in defence evidence as well as the certified copies of the judgments of other courts, to prove that there were previous litigations between the parties and accused Kishan Dutt had won a case and got restraint order against husband of the complainant, due to which FIR no. 200/11 ; PS: Chhawla Page no. 13/21 St vs. Harender Sharma & ors.
he had a grudge against Kishan Dutt and used his wife to lodge this false case against Kishan Dutt and his son. The counsel prayed that case is false and frivolous and a motivated case and accused persons are liable to be acquitted from this case.
31. Final arguments were heard at length and entire case file was carefully perused. Perusal of the original complaint of complainant Ex. PW1/A reveals that complainant has nowhere stated in her complaint dated 17.09.2011 that her sister Kamlesh and Urmila were also present at the spot and they had rescued her from accused persons. However, subsequently, both her sisters gave evidence on her behalf as PW2 and PW3. It is pertinent to mention here that police recorded statement of PW Kamlesh u/s 161 Cr.P.C on 05.10.2011 and statement of Urmila Devi u/s 161 Cr.P.C on 17.10.2011 i.e. much after the date of incident and date of lodging of FIR and the IO has not explained any reason why the statements of public witnesses were recorded after such a long time and why their names were not mentioned in the complaint of complainant dated 17.09.2011. Therefore, it seems that introduction of public witnesses is an after-thought on the part of the police and complainant and the witnesses were not present at the spot at the time of incident.
32. Moreover, comparison of examination-in-chief of PW1 Bimla Devi with examination-in-chief of PW2 Kamlesh and PW3 Urmila reveals that there are various discrepancies in evidence of all the three witnesses. While the complainant/PW1 Bimla Devi has stated in her examination-in- chief that while she was standing on the gate of the house, accused Harender pulled her by catching her hand due to which she fell on the FIR no. 200/11 ; PS: Chhawla Page no. 14/21 St vs. Harender Sharma & ors.
ground and sustained injuries and her garments were also torn and accused Kishan Dutt also came there but she has not imputed any specific role upon accused Kishan Dutt. However, in examination-in-chief of PW2 Kamlesh, she has stated that as soon as she came out of her house, she saw accused Harender pulling Bimla Devi outside from doorstep and she intervened and asked him to leave Bimla and at that time Kishan Dutt was also standing outside the house of Bimla and was abusing Bimla in filthy language. She stated that after her intervention, Bimla Devi went inside her house and accused persons also went away. However, she has nowhere stated that Bimla Devi fell down and sustained injuries. She also did not state in her examination-in-chief and her other sister Urmila was also present at that time.
33. Perusal of examination-in-chief of PW3 Urmila reveals that she has stated that when she went to house of Bimla Devi with her sister Kamlesh, she saw accused Harender catching hold of arm of Bimla Devi and pulling her outside the gate and Kamlesh tried to rescue Bimla. She stated that accused Kishan Dutt was also present outside the house of Bimla Devi and was asking Harender to pull Bimla from her house and both the accused were scolding Bimla Devi calling her "susri bahar aa". She has also not stated in her examination-in-chief that Bimla had fallen down and suffered any injuries in this scuffle. She also did not state that the clothes of Bimla Devi were torn in this process. PW1 and PW2 have not mentioned any words which accused persons might have used in abuse but only PW3 has mentioned the words and this seems to be exaggeration.
FIR no. 200/11 ; PS: Chhawla Page no. 15/21 St vs. Harender Sharma & ors.
34. Though the witnesses have stated that accused persons were drunk at the time of incident, however, there is no documentary evidence of this fact, since accused persons were arrested much after the lodging of FIR i.e. on 20.08.2012 and there is no proof that they were drunk at the time of scuffle.
35. It is also pertinent to mention here that perusal of MLC of PW1 Bimla Devi which has been admitted u/s 294 Cr.P.C by both the accused persons, also reveals that there is no opinion of the Doctor regarding any injury suffered by Bimla Devi in the incident. The MLC was recorded on 17.09.2011 at about 9.42 p.m in RTRM hospital, Jafarpur Kalan and perusal of MLC reveals that there was no injury at all on the person of complainant in the alleged assault. Therefore the allegations of complainant that she suffered injuries by falling down seem to be false and frivolous.
36. Moreover, though the complainant PW1 Bimla has stated in her examination-in-chief that her garments were torn in the process and she also exhibited her torn blouse as Ex. P1 which was brought by MHC(M), however, seizure memo of blouse which is Ex. PW4/E reveals that the blouse was seized by the IO on 23.10.2011 i.e. more than one month after the date of incident and IO has not mentioned any reason why delay was caused in seizure of the blouse. Perusal of seizure memo further reveals that the IO has stated in the memo that complainant told him that when accused Harender had pulled her hand due to which her hand got injured and started bleeding and she removed her blouse and wrapped it around her hand, due to which blouse got stained with blood. This version of the FIR no. 200/11 ; PS: Chhawla Page no. 16/21 St vs. Harender Sharma & ors.
IO is highly unbelievable that how complainant could have removed her blouse and wrapped on her hand. Moreover, there is no medical record of any such injury on the MLC of the complainant which was recorded soon after the alleged incident.
37. Perusal of entire examination-in-chief of complainant reveals that complainant has not leveled any substantial allegations against accused Kishan Dutt and she just stated that when accused Harender was pulling her hand, Kishan Dutt also came there. This does not amount to any offence on the part of the accused Kishan Dutt.
38. As far as the first incident of previous evening is concerned, complainant has stated in her examination-in-chief that accused Kishan Dutt had abused her and pushed her and when she made call at 100 number, Kishan Dutt ran away from the spot. However, there is no DD entry exhibited on record in respect of incident dated 16.09.2011.
39. As far as incident dated 17.09.2011 is concerned, DD no. 46B dated 17.09.2011, P.S. Chhawla has been exhibited by IO as Ex. PW4/A which reflects that call regarding incident was received at about 5.18 p.m regarding quarrel and IO/SI Hari Singh was sent to attend the call.
40. In this regard, certain documentary evidence has been placed on record by DW1 Kishan Dutt. He has exhibited the certified copies of Kalandra u/s 107/150 Cr.P.C DD no. 59B dated 22.09.2011 as Ex. DW1/2 and the report of IO in this regard as Ex. DW1/1. Perusal of kalandra reveals that IO had made Kishan Dutt and Harender as party no.1 and Brahm Prakash and Bimla as party no.2 in the said kalandra dated 22.09.2011 and mentioned that he had gone to the spot on receipt of DD FIR no. 200/11 ; PS: Chhawla Page no. 17/21 St vs. Harender Sharma & ors.
No. 46B dated 17.09.2011 and inquired and came to know that both the parties had lodged various criminal and civil cases against each other and were repeatedly lodging complaints to the police against each other just to put pressure upon each other and they may be asked to sign bond not to disturb peace.
41. DW1 has also exhibited certified copies of statements given by him and Brahm Prakash in SEM court during inquiry upon said kalandra as Ex. DW1/3, Ex. DW1/4 and Ex. DW1/6. Perusal of said statements also reflects that there were quarrels between both the parties. In the said statement DW1/3 also, Kishan Dutt has stated that complainant, her husband and son had assaulted him and beaten him badly. Perusal of statement of Brahm Prakash i.e. husband of complainant which is Ex. DW1/6 reflects that he has also alleged that accused Kishan Dutt used to quarrel with them and abuse them.
42. DW1 has also exhibited one copy of DD entry no. 21A dated 17.09.2011, P.S. Chhawla as Ex. DW1/7 in which it is stated that he had lodged complaint to the police that regarding incident of 16.09.2011, IO/SI Naresh Kumar was not taking action and was demanding money from him for taking action.
43. Perusal of document Ex. DW1/9 reflects that Sh. Brahm Prakash i.e. husband of complainant had filed civil suit no. 138/09 in court of Civil Judge, Dwarka against Kishan Dutt @ Kishan Lal and other persons for mandatory and permanent injunction and his application under Order 39 Rule 1 &2 CPC was dismissed on 27.05.2009. DW1 has also filed on record, judgment dated 16.07.2013 in suit for permanent injunction titled FIR no. 200/11 ; PS: Chhawla Page no. 18/21 St vs. Harender Sharma & ors.
as "Kishan Lal @ Kishan Dutt Vs. Sh. Ramanand & Ors." vide which the suit for permanent injunction filed by Kishan Dutt was decreed by the court of Sh. Chander Bose, Ld. Civil Judge, Senior Division, Tis Hazari Court and the defendants i.e. husband of complainant and other persons were permanently restrained from instaling any gate opening towards khasra no. 105/56 which was held to exclusively belong to the plaintiff i.e. Kishan Dutt and his brothers.
44. Perusal of the entire defence evidence brought on record reflects that there were various litigations pending between the parties prior to the lodging of FIR. Moreover, the IO during investigation had himself concluded that due to previous civil and criminal litigations between the parties they were putting pressure upon each other, due to which he made kalandra dated 22.09.2011 Ex. DW1/2 and asked both the parties to appear before court of SEM for inquiry on the said kalandra. However, IO has not explained what transpired thereafter which compelled him to lodge FIR on the complaint of the complainant just next day (i.e. on 23.09.2011) after the preparation of the kalandra.
45. In this case, accused Kishan Dutt and Harender were charged for the offences u/s 451/354/509/34 IPC vide order dated 26.03.2013. However, perusal of evidence of complainant reveals that complainant has stated that she was standing at her gate when accused Harender tried to pull her out. But she has nowhere stated that accused Harender or accused Kishan Dutt had forcibly entered her house with intention to commit any offence. Hence, no offence u/s 451 IPC is made out against any of the accused persons. Therefore, both the accused persons are acquitted from FIR no. 200/11 ; PS: Chhawla Page no. 19/21 St vs. Harender Sharma & ors.
the offence u/s 451 IPC.
46. As far as offence u/s 354 & 509 IPC is concerned, complainant has not stated in her examination-in-chief any word of abuse used by the accused persons in the quarrel. Hence, no offence u/s 509 IPC is made out against accused persons. Complainant/PW1 Bimla Devi has just stated that accused Harender pulled her out of gate by catching her hand but she did not explain anything further and just the statement that accused Harender had tried to pull her by catching her hand cannot be termed as outraging the modesty of the complainant. Moreover, the act of pulling her hand in absence of any further act or conduct on the part of accused cannot be covered under definition of outraging of modesty of a woman. The other witnesses PW2 and PW3 have also not explained anything except pulling of hand of Bimla by accused Harender. Moreover, presence of PW2 and PW3 on the spot of the incident is highly unbelievable since it has been already explained that their statements u/s 161 Cr.P.C were recorded by the police after long time of lodging of FIR and complainant has not mentioned in her complaint that they were present at the spot and they had rescued her from the hands of the accused persons.
47. Hence, it seems that the simple case of quarrel between the parties has been given colour of outraging of modesty of the complainant by accused persons without any rhyme or reason. The IO had already prepared kalandra and bound down both the parties to appear before court of SEM vide kalandra dated 22.09.2011 Ex. DW1/2 and the present FIR against the accused persons is just an afterthought. Therefore, no FIR no. 200/11 ; PS: Chhawla Page no. 20/21 St vs. Harender Sharma & ors.
offence u/s 354 or 509 IPC is made out against the accused persons. Hence, both the accused Harender Sharma and Kishan Dutt Sharma are acquitted from the offences u/s 354 & 509 IPC also. Personal bond and surety bond of accused persons stand discharged. Original documents, if any, be released to the authorised persons on proper receipt and endorsement, if any, be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 13th April 2015. MM-01(SW), Mahila Court
Dwarka: New Delhi
FIR no. 200/11 ; PS: Chhawla Page no. 21/21
St vs. Harender Sharma & ors.