Delhi District Court
Sc No. 59338/16 Fir No. 590/16, Ps. ... vs . Suraj & Anr. Page No. 1 Of 12 on 14 March, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 59338/16
FIR No. 590/16
P.S. Shahbad Dairy
U/s. 195A/506/34 IPC
State
Versus
1.Suraj S/o. Sh. Deen Dayal R/o. E67, Jain Colony Barwala, Delhi
2. Deen Dayal S/o. Sh. Guru Charan Dayal E67, Jain Colony Barwala, Delhi Date of institution: 17.10.2016 Judgment reserved on: 07.03.2018 Judgment delivered on: 14.03.2018 ORDER/JUDGMENT: The accused persons are acquitted of the offence(s) u/S 195A/506/34 IPC.
J U D G M E N T
1. The prosecution story as set out in the chargesheet is as under:
That on receipt of DD No. 51B, dated 03.08.2016, HC Satbir Singh along with Ct. Kuldeep reached E67, Jain Colony, Barwala, where many public persons had gathered and were in rage. On SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 1 of 12 -2- inquiries, public persons told that, to the complainant Vinod Kumar, Suraj and his father were threatening for taking back his case. Consequently, the statement of Vinod Kumar was got recorded, which reads as under :
"That he was working in a factory and his neighbourer Deepak had done wrong act with his daughter, regarding which an FIR No. 582/16, u/S. 376 IPC and POCSO Act had been registered, the said Deepak was in jail. Today he had brought his daughter after discharge from the hospital at around 3:30 pm. On seeing his daughter, many public persons gathered. At that time, the mother of Deepak passed by laughing towards them. Thereafter, the brother of Deepak namely Suraj and his father Deen Dayal threatened them that they can take the expenses for the medical treatment of their daughter and should take back their case, failing which they will loose their life. On this, public persons gave beatings to them and after that took them to the hospital.
2. On the said statement, endorsement was made by HC Satbir Singh and an FIR u/S. 195A/506/34 IPC was registered at PS Shahbad Dairy and investigations were taken up by HC Satbir Singh.
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3. Thereafter, the said IO prepared the site plan at the instance of the complainant and also recorded the statements of the witnesses. During investigations, the accused persons were arrested and after completion of investigations, charge sheet was filed.
4. After committal of the case to the Court of Sessions, vide order dated 08.03.2017, a charge u/s 195A/506/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial.
5. Thereafter, prosecution has examined 8 witnesses in support of its case.
a) PW1 is HC Pradeep, Duty Officer, who has proved the computerized copy of FIR Ex. PW1/A and endorsement made by him on the rukka as Ex. PW1/B.
b) PW2 is HC Leela Dhar, Duty Officer, who had registered the FIR No. 582/16, u/S. 376 IPC & Sec. 6 POCSO Act, PS Shahbad Dairy on 01.08.2016.
c) PW3 is Smt. Mandvi Sinha, wife of the complainant.
d) PW4 is WSI Urmila Sharma, who was the IO of FIR No. 582/16, u/S. 376 IPC & Sec. 6 POCSO Act, PS Shahbad Dairy, who had filed the charge sheet in the concerned designated court of POCSO.
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e) PW5 is Ct. Kuldeep, who went to the spot along with the IO HC Satbir Singh on receipt of DD No. 51B on 03.08.2016 and who had also taken the rukka to the police station for registration of the FIR and also took part in the investigations including the arrest of the accused persons.
f) PW6 is Vinod Kumar, complainant.
g) PW7 is WConstable Manju, who was working as DD
writer at PS Shahbad Dairy, on 03.08.2016 and who had recorded the DD No. 51B on that day which is Ex. PW7/A.
h) PW8 is ASI Satbir Singh, the IO of this case, who has deposed regarding the investigations as were carried out by him during the course of the present case.
6. Statements of both the accused persons u/S 313 Cr.P.C. were recorded separately in which the entire incriminating evidence appearing against them was put to them, in which the defence of the accused persons was that they had been falsely implicated in this case. They also stated that no such incident ever took place and they had never extended any threat to anyone on 03.08.2016 or thereafter. They chose not to lead evidence in their defence.
7. I have heard Ld. Addl. PP for the State and Sh. Sushil Kumar, Ld. Counsel for both the accused persons.
8. It was contended by Ld. Defence counsel that the entire SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 4 of 12 -5- prosecution story is concocted, no incident as stated by PW3 and 6 had ever taken place. In any case, the testimonies of both the said witnesses was biased as they had grudge against the accused persons, as they had lodged an FIR No. 582/16, u/S. 376 IPC & Sec. 6 POCSO Act, PS Shahbad Dairy against the son of accused Deen Dayal. Therefore, they had deposed falsely. It is also stated that no public witness has been examined to corroborate their version, as it is written in the rukka itself that the accused persons were beaten up by the public persons in whose presence they had allegedly threatened the complainant and his wife. It is also stated that no complaint u/S. 195 CrPC had been filed on the record either before this court or before the court of Ld. ASJ1 (POCSO Court). Therefore, it is stated that the present case is liable to be dismissed on this point alone. Therefore, it is stated that both the accused persons are liable to be acquitted.
9. On the other hand, Ld. Addl. PP for the State strongly controverted the above contentions. It is argued that the testimonies of PW3 and PW6 are totally trustworthy and are cogent and from their testimonies, it is clear that the accused persons had threatened them of dire consequences, in case they did not take back their case of POCSO and u/S. 376 IPC lodged against the son of the accused Deen Dayal. It is also stated that there was no need for the corroboration of public witnesses in this case. It is also stated that no complaint u/S. 195 CrPC was necessary in view SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 5 of 12 -6- of the settled law. Therefore, it is stated that prosecution has been able to prove this case against both the accused persons beyond all shadows of reasonable doubt and both the accused persons are liable to be convicted.
10. PW6 in his testimonial deposition before the court has deposed as under :
"I am residing at my above said address alongwith my family and I am working in a factory at Barwala. My daughter aged about 6 years were sexually assaulted by one Deepak, our neighbour. In this regard a case FIR No. 582/16, u/s 376 IPC and 6 Posco Act was registered at PS S.B. Dairy. Accused Deepak was arrested in that case.
On 03.08.2016 after the discharged of my daughter from hospital I alongwith my wife came to our house with our daughter and we reached our house at about 3.30 pm. Many public persons gathered at the spot to console my daughter. At about 3.45 pm accused Deen Dayal, Suraj who are present in the court today, correctly identified by the witness alongwith Smt. Mala Devi wife of accused Deen Dayal came there. All the three persons told me that "jo bhi tumara kharcha hua hai wo le lo or case uthwalo nahi to tum apne jaan kho do degai" on hearing the above words by the public persons accused Deen Dayal, Suraj and Mala Devi were beaten up by the public. My wife made a call at 100 no. After sometime, police SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 6 of 12 -7- came there. Accused persons extended threats upon us in order to withdrew the case Fir NO. 582/16 of PS S.B. Dairy. Police made enquiry from me and recorded my statement Ex. PW6/A and same was read over and explained to me after finding the same to be correct I signed at point A. On the bases of my statement case was registered at my instance. Police inspected the spot and prepared the site plan already Ex. PW5/A which bears my signature at point B. Both the accused namely Suraj and Deen Dayal were arrested vide memos already Ex. PW5/B and PW5/C both bearing my signatures at point B and thereafter my statement was recorded by the IO."
11. The said witness was thoroughly crossexamined by Ld. Defence Counsel. In his crossexamination, he has stated that his daughter was discharged at 2:00 pm and they left the hospital and reached at about 3:30 pm, but he did not receive the discharge summary from the hospital. He also stated that his house comes before the house of accused persons. He also stated that he remained in the house for one minute and thereafter came out, as many public persons had gathered outside the house which were around 100 and public persons were giving beatings to Mala Devi, in between his house and the house of the accused persons. He further stated that he does not remember the mobile phone by which, his wife made a call at 100 number. Thereafter, he stated that mobile no. 9971284865 belongs to him, as his family is having SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 7 of 12 -8- 23 mobile numbers. The police reached at the spot within 5 minutes of making the call, but he does not know, whether Mala Devi was taken to the hospital by the PCR or not.
12. PW3 Mandvi Devi has more or less deposed on the same lines as has been deposed by the complainant PW6 in his examination in chief and has corroborated his testimony in material particulars. She has also stated that the public persons gave beatings to the accused persons and after they threatened them to withdraw the case of sexual assault registered against Deepak and they had also stated that "apne pati se bhi haat dho baithungi". She also stated that she made a call at 100 number. She was also crossexamined. She stated that they were coming from Ambedkar Hospital, but they do not have any prescription slip and it might have been in the knowledge of her husband, whether the same was handed over to the IO or not. She also stated that public persons of the locality came to their house after they came back from the hospital to see the condition of her daughter. She also stated that Mala Devi is the wife of accused Deen Dayal, but she cannot tell, whether she was beaten up by the public persons or not. The police reached at the spot within 10 minutes of the call. She also stated in her cross examination that she does not remember whether any statement of public persons was recorded by the police in her presence. She knew the name of the public persons present at the spot, but she SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 8 of 12 -9- will not tell the name of any person, as they were her neighbourers. She also stated that she had not filed any complaint in the court, where the case of Deepak was pending.
13. Regarding the first contention of the Ld. Counsel for the accused persons that no complaint u/S. 195 CrPC was filed before the Court, which is necessary to take cognizance with regard to the offence u/S. 195A IPC. Therefore, the very cognizance taken by this court is bad in law and the accused persons are liable to be acquitted on this ground alone. The said contention is without any substance, as it has been held in judgment Maneesh Goomer Vs. State, Crl. M. C. No. 4208/2011 & Crl. M. A. 19453/2011 (stay) as under :
"As regards the next contention of the Petitioner that for a prosecution under Section 174A IPC no cognizance can be taken on a chargesheet but on a complaint under Section 195 Cr.P.C., it may be noted that Section 174A IPC was introduced in the Code with effect from 23 rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23 rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are noncognizable, offence punishable under Section 174A IPC is cognizable. Thus the Police officer on a complaint under Section 174A IPC is competent to register FIR and after investigation thereon SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 9 of 12
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file a chargesheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel to the Petitioner."
14. The same principle would apply to Section 195A IPC, as it appears that the Legislature was conscious of this fact as all offence(s) under Chapter 10 of the Cr.P.C. are non cognizable, whereas offence(s) u/S. 174A and 195A IPC are cognizable in nature. Further, no corresponding amendment has been made in Section 195 CrPC to make the cognizance of the offence(s) u/S. 195A CrPC bad in law without complaint u/S. 195 CrPC. Therefore, no complaint u/S. 195 CrPC was required to be filed by the prosecution before taking cognizance, as offence u/S. 195A CrPC is itself cognizable in nature.
15. Now coming to the merits of the case, PW3 Mandvi Sinha, the wife of the complainant has admitted that she knew the name of the public persons, present at the spot, but she will not tell the name of any person, as they were neighbourers. Both PW3 and PW6 have stated that the public persons gave beatings to the accused persons, however, admittedly no MLC of any of the accused had been prepared after the said alleged beatings given to them by the public persons. Further, none of the public witnesses or the neighbourers were examined, who were present at the spot, which could have lent assurance to the testimonies of the above witnesses in the shape of independent corroboration.
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16. The testimony of any witness has to be tested on the anvil of objectivity, observational sensitivity and veracity. In the present case, in the absence of any independent corroboration to the testimonies of PW3 and PW6, the testimonial bias in the testimony of PW3 and PW6 cannot be ruled out. As the complainant had already lodged an FIR against the son of the accused Deen Dayal, namely Deepak, bearing FIR No. 582/16, u/S. 376 IPC & Sec. 6 POCSO Act, PS Shahbad Dairy, therefore, there was some ill will for sure, between the parties prior to the present incident.
17. Both PW3 and PW6 have stated that on that day, they were returning from Ambedkar Hospital after discharge of their daughter, however, no such discharge slip had been obtained by them nor produced in the court to lend corroboration to their testimonies.
18. On the probative scales, where the happening of any event is measured or assessed the probative force of the prosecution evidence as a whole is of such a nature, which can be said 5050 i.e. there are probabilities of the incident being true as per testimonies of PW3 and PW6 and at the same time, there is equal probability that the incident may not be correct and there may be false implication of the accused persons in this case due to ill will between he parties. Something more was required in the present case that more weightage of evidence was to be supplied by the independent corroboration in the shape of testimonies of public SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 11 of 12
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witnesses, which could have tilted the scales in favour of the prosecution, that being no so. Therefore, there is 50% probability both ways i.e. towards the guilt of the accused as well as their innocence. Consequently, on such kind of evidence the accused persons cannot be convicted as the yardstick in criminal trial is probabilities / evidence beyond reasonable doubt, which should be touching the point of almost certainty, if not certainty i.e. to say it must be around 80% or .8 on the scale of 0 to 1.
19. In these circumstances, both the accused persons stands acquitted of the charge(s) under Section(s) 195A/506/34 IPC by giving them benefit of doubt. Their previous bail bonds stand cancelled. Previous sureties stand discharged. Documents, if any be returned after cancelling the endorsement, if any, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
20. The Accused persons have already furnished their fresh bail bonds for the sum of Rs.15,000/ each with one surety of like amount each in compliance of Section 437A Cr.P.C, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File on completion be consigned to record room. Announced in the open Court (Sanjeev Aggarwal) th on 14 day of March 2018. Addl. Sessions Judge02,North Rohini Courts, Delhi/14.03.2018 SC No. 59338/16 FIR No. 590/16, PS. Shahbad Dairy State Vs. Suraj & Anr. Page No. 12 of 12