Delhi District Court
State vs . Parveen on 4 August, 2012
IN THE COURT OF MS SHIVALI SHARMA :
METROPOLITAN MAGISTRATE/MAHILA COURT (WEST)
DELHI
FIR NO: 310/07
P. S. Rajouri Garden
U/s 354/509 IPC
ID No. 02401R1478702007
04.08.2012
STATE VS. PARVEEN
Date of institution : 03.10.2007
Date of Commission of offence : 14.04.2007
Name of the Complainant : Kusum
d/o Sh. Ram Babu
Name, parentage & address : Parveen
of the accused s/o Yad Ram
r/o H. No. 83,
Paryog Vihar,
Subhash Nagar,
New Delhi
Offence Complaint of : U/s 354 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date for reserve of order : 20.07.2012
Date of announcing of order : 04.08.2012
FIR No. 310/07 State Vs. Parveen 1 of 19
BRIEF FACTS AND PRE TRIAL PROCEDURE
1. The case of the prosecution in brief is as follows. The present FIR has been registered on the basis of the complaint dated 17.04.2007 made by the complainant Kusum which has been proved as Ex. PW3/A.
2. The allegations as contained in the original complaint are that accused Parveen used to harass the complainant since last several days. He had instigated the husband of the complainant telephonically because of which her husband had left him. He used to have a bad eye on the complainant.
3. On 14.4.07 at about 2 or 2:30 AM accused Parveen came to the roof of the complainant's house where she was sleeping with her younger brother and sister. He put his hand on her mouth. She became scared and called her mother. He had come on the roof of the complainant in the night with a bad intention. When the complainant told her mother about his conduct, he started abusing and also threatened her. He had even touched her chest with bad intention. Few days prior to the filing of the complainant there was quarrel between the family member of the complainant and accused. The accused is having an intention to outrage the modesty of the complainant. The accused is also in the habit of calling the younger sister of complainant namely Pinky with a bad FIR No. 310/07 State Vs. Parveen 2 of 19 intention by offering her 1020 rupees. He had even taken obscene photographs of the complainant while she was having bath in his mobile. Hence the complaint.
CHARGE
4. After completion of the investigation, charge sheet was filed u/s 354/509 IPC in the Court on 03.10.2007. Cognizance was taken against the accused and the accused was summoned. Notice for offence u/s 354 IPC was served upon the accused on 26.02.2008 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. Prosecution has examined seven witnesses in all to bring home the guilt against the accused. Their testimonies are touched upon in brief in order to have a better understanding of the case.
6. PW1 is a formal witness ASI Ram Awtar who was posted as Duty Officer on 17.04.2007 and has deposed about the registration of the FIR. The copy of the FIR has been proved as Ex. PW1/A and endorsement made on the rukka as Ex. PW1/B.
7. PW2 is Ct. Balwan Singh who stated that on 17.04.2007 he was given a rukka by ASI Kanhaiya Lal at PP MIG Flats for getting case registered at P.S. Rajouri Garden. He got the present FIR registered through DO. The copy of FIR and original rukka were handed over by him to ASI Kanhaiya Lal at PP MIG Flats.
FIR No. 310/07 State Vs. Parveen 3 of 19 Thereafter, he along with ASI Kanhaiya Lal went to the spot at Hari Om Vihar for search of the accused but he could not be found. On 23.04.2007, he along with I.O went to Gymwala Park behind Prayog Vihar for further investigation in the present matter. They got a secret information that accused Parveen will be coming to his house to meet his mother. The informer also pointed towards a person in blue shirt and stated that he was the accused. Accused was apprehended and arrested by the I.O and taken to PP MIG Flats. Arrest memo of the accused has been proved as Ex. PW2/A and his personal search memo is Ex. PW2/B. Mother of accused Parveen namely Bimla also produced the mobile phone of accused Parveen which was seized vide memo Ex. PW2/C and was sealed with the seal of KLM. His statement was recorded by the I.O. The mobile phone has been proved as Ex. P1.
8. PW5 is a formal witness HC Charan Singh being the MHC(M). He has proved the entry in register no.19 vide which mobile phone (Ex. P1) was deposited with Malkhana on 23.4.2007 as Ex. PW5/A.
9. PW7 is the I.O of the case SI Kanhaiya Lal who stated that on 17.4.07 he was posted as ASI at PP MIG Flats. On the said date the complainant Kusum Devi along with her mother had come to the PP at about 7:00 PM and told about the incident. The statements of Kusum Devi was recorded by him which is FIR No. 310/07 State Vs. Parveen 4 of 19 exhibited as Ex. PW3/A. Rukka Ex. PW1/D was prepared by him and handed over to Ct. Balwan Singh (PW2) at about 8:00 PM for registration of the FIR at P.S. Rajouri Garden. During investigation, statement of witnesses were recorded u/s 161 Cr.P.C. On 23.4.2007, accused was arrested vide arrest memo Ex. PW2/A and personally search vide memo Ex. PW2/B. The mobile phone of the accused was seized vide memo Ex. PW2/C. On completion of the investigation charge sheet was filed by him.
10.In his cross examination, PW7 has admitted that incident was of 14.4.2007 but it was reported only on 18.04.2007. He also admitted that no site plan was prepared by him. However, he stated that the house of the accused was on the right side of the house of the complainant with a common roof. He denied that suggestion that the house of the accused was in front of the house of the complainant. He also stated that despite enquiry about the incident from the neighbours of the complainant, their statements were not recorded. He further testified that there was no DD entry or call at 100 number on 14.04.2007 regarding the incident. He further stated that the mobile phone of the accused was seized by him as it was told by the complainant that the accused had taken her photographs in the same. However, he admitted that he had neither got the said mobile sent to any CFSL Lab nor he had himself checked to find out whether photographs of the FIR No. 310/07 State Vs. Parveen 5 of 19 complainant were therein or not. He could not give any reason for not doing so or for nonpreparing of site plan.
11.He also admitted that prior to this case there was quarrel between families of the prosecutrix and the accused and he had sent a Kalandra u/s 107/150 Cr.P.C to the ACP. He also stated that he had asked the complainant as to why no call was made by 100 number on the date of the incident itself but stated that no answer was given by her. Other suggestions were denied by the I.O.
12.There are three star witnesses of the prosecution case being the complainant herself who has been examined as PW3, her mother Dhan Devi who has been examined as PW4 and her sister Pinki who has been examined as PW6.
13.PW3 Kusum is the complainant as well as victim in the present matter. In her deposition before the Court recorded on 3.3.11 she could not tell the exact date of the incident but stated that it was about 4 years prior when accused Parveen used to show currency notes to his younger sister and used to tease her in the street. He also used unparliamentary language against her. Number of times she made complaint against the accused. The accused and his family members had even quarreled with her family. A call was made at 100 number and police had taken all of them to the P.S. One night, when she was sleeping on the roof of her house the accused Parveen came to the roof and put his hand on her mouth.
FIR No. 310/07 State Vs. Parveen 6 of 19 He also tried to unwear her clothes and touched her private parts. When she raised alarm, he ran away from there. He had also taken her photographs while she was bathing. After this incident her parents had told about the same to the mother of the accused. A complaint was also filed regarding the incident in the P.S. which is Ex. PW3/A. She also stated that accused also used to call her and abuse her and also asked to come to sleep with him. He had also instigated her husband against her because of which her divorce had taken place.
14.In her cross examination, PW3 testified that the house of the accused was in front of her house. However, she stated that the roofs of their houses were connected. She also testified that on the date of the incident she was sleeping alone on the roof of her house but later on clarified that only her brother and sister were sleeping with her and as no elder person from her family was sleeping on the roof she had stated that she was sleeping alone. She admitted that earlier a case was registered and pending before ACP regarding some quarrel between her family and family of the accused.
15.She further testified that on the date of the incident police was called at 100 number and all of them were taken to the P.S. She could not tell who had called the police. She further stated that several people from the locality had collected when she had FIR No. 310/07 State Vs. Parveen 7 of 19 raised noise on the date of the incident but no one had accompanied her to the P.S.
16.She further admitted in her cross that her complaint Ex. PW3/A was not written by her in her own handwriting. She stated that she got it written through one of the neighbour whose name she did not remember. Later on, she also admitted the suggestion that the complaint was written by the police officials. She was confronted with various improvements made by her in her deposition before the Court as compared to her original complaint Ex. PW3/A. Some of these improvement are calling the police at 100 number, accused having tried to unwear her clothes, the allegations that accused used to call her and asked her to sleep with him or that he used unparliamentary language towards her.
17.The witness denied the suggestions regarding having made the present false complaint against the accused because of the doubt that he had called her husband and instigated him. She also denied the suggestion that her husband was never instigated by the accused. Various other suggestions were also denied.
18.PW4 Dhan Devi is the mother of the complainant. She also could not tell about the date of the incident in her deposition recorded on 3.3.2011. She stated that about 4 years prior accused used to show currency notes to her younger daughter and used to tease her daughter Kusum. On the date of the incident he had FIR No. 310/07 State Vs. Parveen 8 of 19 come to the roof of her house and put his hand on the mouth of her daughter Kusum. He also tried to unwear her clothes and touched her private parts. When her daughter raised alarm he ran away from the spot. She was informed about the incident by her daughter Kusum on the same day. Thereafter a complaint was filed regarding the incident with P.S. Accused also made a telephonic call through her son in law and instigated him against her daughter Kusum because of which her divorce had taken place.
19.In her cross examination, PW4 also admitted that the house of the accused is in front of her house and there was a street in between her house and the house of the accused. However, she stated that their house was having a common wall with the house of the accused. She was also confronted with her statement u/s 161 Cr.P.C which is Ex. PW4/D1 wherein she had stated that she had come to know about the incident in the morning. She further testified that no call was made to the police in the night but stated that a lot of public had collected at the place. She further stated that after the incident they had tried to resolve the matter with the accused. However, he started beating her and her family members including the complainant. Thereafter, the matter was reported to the police. She was also confronted with her statement Ex. PW4/D1 regarding the various improvements made by her FIR No. 310/07 State Vs. Parveen 9 of 19 deposition before the Court.
20.She further testified that at the night of the incident PCR had come to the spot and people from the locality had also gathered. However, police did not record the statement of any person of the locality in her presence. She denied various other suggestions given by the Ld. Defence counsel.
21.PW6 Pinki is the sister of the complainant who stated that accused was their neighbour. She also could not depose about the date of the incident but stated on 21.12.11 that it was about 23 years back when she was studying in school. While she used to go to school accused followed her and used to tease her by giving the greed of Rs 1020. He used to ask her that she should sent her sister to him. When she along with her sister was sleeping on the roof, the accused came to the roof and started sleeping near her sister. He also made indecent remarks and gestures to her. As on the date of the incident all of them were sleeping on the roof, her parents who were already sleeping on the roof were aware of the fact that accused had come there. She had also told her mother about the incidents of teasing and following her by the accused. Her mother had complained about the conduct of the accused to his mother because of which there was a quarrel between them.
22. In her cross examination, she could not tell the date, month, day or year of the incident but stated that it was about 10:00 PM in the FIR No. 310/07 State Vs. Parveen 10 of 19 night and stated that the house of the accused was in front of their house and there was a Gali in between their house and the house of the accused. She further testified that at about 10:00 PM the accused was caught by her father and her mother had also woken up. She stated that her statement was recorded after the quarrel between their family and the family of the accused and not after the occurrence of the roof incident with her sister. She stated that no report was made after the roof incident. She also admitted that a case was going on in the Court of ACP pursuant to the quarrel which had taken place between her family and the family of the accused persons. She was also confronted with various improvement made by her in her deposition before the Court as compared to her statement u/s 161 Cr.P.C. She denied various other suggestions given by Ld. Defence Counsel.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
23.Statement of accused was recorded u/s 313 Cr.P.C wherein he denied all the allegations made against him and stated that the complainant was his neighbour. There was some quarrel between between his mother and mother of the complainant over water because of which the complainant has falsely implicated him in the present case at the behest of her mother.
24.Accused took an opportunity to bring defence evidence. However, despite opportunity no defence evidence was led and FIR No. 310/07 State Vs. Parveen 11 of 19 DE was closed by statement of accused.
25.Final arguments have heard and record have been carefully perused.
APPRECIATION OF EVIDENCE AND LAW
26.It is argued by Ld. APP for State that the prosecution witnesses have duly proved the case of the prosecution beyond reasonable doubt. The complainant has categorically stated in her deposition that the accused had touched her with an intention to outrage her modesty while she was sleeping on the roof of her house on 14.04.2007. Her deposition to this effect has been duly corroborated by the other members of her family who have been examined as PW4 and PW6. Although neither PW4 nor PW6 are the eyewitnesses to the incident but they are relevant witnesses as they had seen the accused running from the spot immediately after the incident. It is further submitted that minor contradiction which have come in the cross examination of these prosecution witnesses are not sufficient to create a doubt on the testimony of the prosecution witnesses.
27. Relying upon the decision of the Apex Court in the case titled as Jai Shree Yadav Vs. State of UP cited at 2004 (3) JCC 1226, it is argued by Ld. APP for State that there is always a possibility of the witnesses committing mistakes which can be termed as FIR No. 310/07 State Vs. Parveen 12 of 19 omissions, improvements and contradictions when they are subjected to lengthy cross examination over a period of time. However, all such omissions/improvements cannot be said to be fatal to the prosecution case. Such infirmities have to be appreciated in the background of ground realities which makes the witnesses confused because of such tactics of the cross examining counsel.
28.Accordingly, it is submitted that the minor contradictions in the deposition of the witnesses are not sufficient to give the benefit of doubt to the accused in the present matter. These contradictions, being minor in nature, have to be ignored by the Court.
29. It is further submitted that the delay in the registration of the FIR has also been duly explained by prosecution witnesses as it has been stated that initially an effort was made for getting the matter compromised by informing about the incident to the mother of the accused. However, when no settlement could be arrived at, the matter was reported to the police. This is a reasonable and plausible explanation given by the prosecution witnesses and since the delay has been properly explained, it is not fatal to the case of the prosecution. Thus, it is submitted that considering the evidence which has come on record the offence as charged against the accused has been proved beyond reasonable doubt.
30.Per contra, it is submitted by Ld. Defence Counsel that the FIR No. 310/07 State Vs. Parveen 13 of 19 contradictions which have come in the deposition of the witnesses are not minor in nature. They are major contradictions and improvements going to the very root of the case and thus same cannot be ignored. It is further submitted that from a bare perusal of the original complaint Ex. PW3/A the motive of false implication of the accused becomes clear. The complainant had started her complaint on the note that she is residing separately from her husband as the accused used to instigate her husband against her. She has again reiterated this fact in her deposition before the Court. Even her mother (PW4) had deposed on the same lines. Accordingly, it is submitted that from the deposition of the complainant and her mother itself it has amply come on record that the complainant had a grudge against the accused as she believed that the accused had instigated her husband against her because of which her husband had left her. This was a sufficient motive for the complainant for falsely implicating the accused in the present matter.
31.Another motive for false implication of the complainant which has come on record from prosecution evidence itself is that there was some quarrel between the family of the accused and that of the complainant prior to the present incident. This factum has also duly come on record in the deposition of the complainant (PW3), her mother (PW4), her sister (PW6) as well as the I.O (PW7).
FIR No. 310/07 State Vs. Parveen 14 of 19 All of them have admitted in their cross examination that a case regarding a quarrel between the families of the parties was pending before the ACP prior to the incident in question. Accordingly, it is submitted that the complainant had sufficient motive for falsely implicating the accused in the present case.
32.It is further submitted that there is a delay of about 3 days in registration of the present FIR. This delay coupled with the motive available with the complainant for falsely implicating the accused is sufficient to create a doubt upon the prosecution story. The benefit of this doubt has to be given to the accused.
33.In addition to this there is no site plan prepared in the present matter. The I.O is not aware about the location of the house of the accused and the complainant as his testimony to this effect is totally contradictory to the testimony of other prosecution witnesses. While all the public witnesses (PW3, PW4 and PW7) have categorically stated that the house of the accused was in front of the house of the complainant with Gali in between, the I.O has made out a case that the house of the accused was on the right side of the house of the complainant with adjoining wall. In the absence of site plan it is difficult to believe that the house of the accused and the complainant were so located that the accused was in a position to come to the roof of the house of the complainant from the roof of his own house. This also create a doubt on the FIR No. 310/07 State Vs. Parveen 15 of 19 case of the prosecution.
34. Besides this, the mobile phone of the accused which was seized by the I.O, had never been sent for CFSL examination nor the I.O had himself checked the phone for the availability of the photographs of the complainant as alleged by her. It is also pointed out by Ld. Defence Counsel that the said mobile was duly examined by Ld. APP for State in the presence of Ld. Defence Counsel on 24.03.12 and no such photographs as alleged by the complainant were found in the said mobile. The prosecution has itself proved that the mobile phone had not been tampered with from the date of its seizure. Accordingly, it has also been established on record that there was no such photographs of the complainant taken by the accused as alleged by her. It is argued by Ld. Defence Counsel that from the motives available with the complainant for falsely implicating the accused, the delay in filing of the present FIR as well as the false allegations made by the complainant against the accused regarding her photographs taken by him clearly doubt is created on the case of the prosecution. The benefit of this doubt has to be given to the accused. Accordingly, it is submitted that the accused is entitled to acquittal.
35.Ld. Defence Counsel has relied upon judgment in the case titled as Harchand Singh Vs. State of Haryana AIR 1974 Supreme Court 344 to stress upon the point that there two sets of evidence FIR No. 310/07 State Vs. Parveen 16 of 19 have been led by the prosecution pointing towards contradictory case, the benefit of doubt has to be given to the accused.
36.Submissions heard. Record perused.
37.From the evidence which has come on record it has been amply proved on record from the deposition of the prosecution witnesses themselves that the complainant as well as her family members doubted that the separation between the complainant and her husband had taken place due to the instigation by the accused. It has also been established on record that a case for quarrel was pending between the family members of the complainant and the accused before the Court of ACP. These motives, in my opinion, were sufficient for false implication of the accused by the complainant. Moreover, there is a delay about 4 days in lodging of the FIR. The explanation given by the prosecution regarding delay in lodging of the FIR that the efforts were being made for compromising the matter by informing the mother of the accused is not acceptable especially when considered in the background of the fact that there were already pending disputes between the parties.
38. Moreover, the prosecution witnesses have put forth the case that immediately on the night of the incident the police was informed at 100 number and various public persons had also gathered. This case put forward by PW3 and PW4 has been devastated by other FIR No. 310/07 State Vs. Parveen 17 of 19 prosecution witnesses that are PW6 and PW7. PW6 had categorically stated that no report was made immediately after the roof incident. PW7 I.O had categorically stated that he had even asked the complainant as to why police was not informed at 100 number on which no answer was given by the complainant. Also there is no evidence on record to show that any complaint was made to police at 100 number. I.O has also denied the existence of any such DD entry in his cross examination. Thus, it is clear that various prosecution witnesses are deposing differently regarding the same incident.
39.In the present case, the nonavailability of site plan on record is also fatal to the case of the prosecution especially considering the contradictory testimonies of the prosecution witnesses regarding the location of the house of the accused and that of the complainant. While all the public witnesses (Pws3, 4 and 6) have deposed that the house of the accused was in front of the house of the complainant with a street in between, the case of the I.O is altogether different. I.O has stated that the house of the accused was on the right side of the house of the complainant. It is also the case of the complainant and other public witnesses that the roof of the house of the accused and complainant was joint and they also had a common wall which is difficult to believe considering their own submissions that the house of the accused was in front of FIR No. 310/07 State Vs. Parveen 18 of 19 their house with a street in between. In view of the contradictory submissions of the prosecution witnesses to this effect and non preparation of the site plan a doubt is created as regards the accessibility of the roof of the complainant's house from the house of the accused.
40.Arguments of Ld. Defence Counsel regarding nonfinding of any photographs pertaining to the complainant from the mobile phone of the accused also inspires the confidence of the Court and creates a doubt on the deposition of the prosecution witnesses.
41.In view of the reasons given above and considering the over all evidence on record, I am of the opinion, that the offence as charged against accused has not been proved beyond reasonable doubt. The benefit of doubts which have been created from the deposition of the prosecution witnesses has to be given to the accused. Hence, accused is acquitted for the offences charged against him. However, his surety bonds shall remain extended till six months from today u/s 437A Cr.P.C. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (SHIVALI SHARMA )
TODAY ON 04.08.2012 Metropolitan Magistrate,
Mahila Court/West/Delhi
FIR No. 310/07 State Vs. Parveen 19 of 19