Delhi District Court
Fir No. 251/2015 State vs . Dilsad; Ps H.N. Din 1 Of 25 on 30 October, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 251/2015
PS: H.N. Din
U/s : 354/354D/341/451/506/509 IPC
State v. Dilsad
JUDGMENT
Date of institution : 16.05.2017
Cr.C No. : 6401/2017
Name of the complainant : As per chargesheet.
Name & address of the accused: Dilsad
persons S/o Mohd. Hazi
R/o H.No.108, R.B. House,
Basti Nizamuddin, New Delhi.
Offence Complained of : U/s 354/354D/341/506/509/451 IPC
Offence Charged of : U/s 354/354D/341/506/509/451 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 29.10.2018
Date of announcing of order : 30.10.2018
BRIEF FACTS:
1. Brief facts of the case which are stated by the complainant in her complaint are that the complainant was residing alongwith her FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 1 of 25 family members at Basti Hazrat Nizamuddin. Accused Dilsad alongwith another person namely Irshad used to trouble the complainant and follow her by stopping her. Both the aforesaid persons used to talk indecent thing to the complainant and even threatened to kidnap the complainant and pour acid on her face. On 20.03.2015 at around 67 PM in the evening when the complainant alongwith her family members and her mother were present at home, both aforesaid persons alongwith his relatives entered in the house of complainant and accused Dilsad held the hand of the complainant and dragged her forcefully out of the house and started abusing her in filthy language and even threatened to kill her. Accused also told the complainant that he was not afraid of polcie since he had a mobile phone opposite the police booth.
2. Pursuant to this complaint dated 05.04.2015 against the accused for the incident dated 20.03.2015, FIR was registered on 05.04.2015 and the matter was investigated. Charge sheet was filed on 16.05.2017. The Court took cognizance of offence and summoned the accused. Charge was framed against accused Dilsad vide order dated 06.11.2017 for the offence punishable U/s 354/354D/341/451/506/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 2 of 25
3. In order to prove its case, prosecution has examined four (04) witnesses during trial and statement of accused u/s 294 CrPC was recorded and the copy of FIR and rukka were Ex.A and Ex.B and corresponding witnesses were dropped from the list of witnesses.
PW1 complainant (as per chargesheet) deposed that from the month of February 2015, accused Dilsad and one Irshad used to follow her and abused her on the way and they used to threaten her to throw acid on her face. She complained her mother regarding the aforesaid behaviour of accused persons. Thereafter, her mother had taken her at the place where accused person had misbehaved with her as the aforesaid manner but at that time, they did not find there. On 20.03.2015, at around 6:00 to 7:00 PM, she alongwith her mother was present in her house and was inside her room. Suddenly, accused Dilsad alongwith Irshad and his relatives forcefully entered into her house. The relatives of Irshad namely Rida, Ruby, Ruksana and Sabana started to abuse her and told the accused Dilsad and Irshad to teach a lesson as they want to grab her flat at second floor where she was residing and thereafter, Rida, Ruby, Ruksana and Sabana left the spot. Accused Dilsad caught hold her hand and started to drag her outside the house and told her that police cannot take any action against him as police official was known to him because he has a shop near police chowki. Her mother came there to rescue from accused Dilsad. One Irshad was also present there and he abused FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 3 of 25 her in filthy language. Accused Dilsad abused her by using filthy language and threatened her that he will make false complaint against her if she would make any complaint against him. Her mother told them that she would call at 100 number, thereafter, both of them ran away from there. She called at 100 number two times but call was remained dropped due to network problem. She got afraid and she alongwith her mother went to Police Station. But no police official made them who record her complaint and one police official met them and told her that all police staff had gone for arrangement in "Yamuna Bachaoo Andolan". She narrated the whole incident to that police official and he asked her to come next day. On the next day, she alongwith her mother again went to the police station. She met with one police official SI Neetu Singh and narrated whole incident to her and she recorded her complaint which was Ex.PW1/A. Thereafter, the date mentioned under the name of address of complainant as 05.04.2015 was shown to the witness and witness stated that it may be date of registration of FIR, however, she had narrated the whole incident to SI Neetu Singh on the very next date of incident. During the course of investigation, her statement under Section 164 Cr.P.C. was recorded vide Ex.PW1/B. During crossexamination PW1 deposed that she have five brothers and sisters that is three brothers and two sisters. She was not married. Complaint Ex.PW1/A was in her handwriting FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 4 of 25 and address, date and phone number of the complainant mentioned in her complaint was also in her handwriting. It was correct that before this complaint dated 05.04.2015, no other complaint was made against him however she had made several complaints against the accused after the present complaint made. She did not give abovesaid complaint made by her after the present complaint to the IO of the present case. She made the aforesaid several complaints to the police at PS but she did not remember the exact date and month and even year of the aforesaid complaints however it was made after year of 2015. It was wrong to suggest that she had not made any complaint against accused after the present complaint. On the alleged date of incident that is on 20.03.2015 she did not make any written complaint to the police since on that day she went to the PS but no police officials including SHO concerned were found present to record her complaint and one police official told her to come on next day as it was already 08:00 PM and in night time, she was not allowed to enter into PS being a lady. She had given written complaint on 21.03.2015 to police officer namely Nitu Singh. Thereafter, the said complaint dated 21.03.2015 was not found on record. It was correct that she had not made any complaint against the police official who received her complaint on 21.03.2015 and not to place the same on record to the present file. It was wrong to suggest that she had not given any written complaint dated FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 5 of 25 21.0.3.2015 to the police against the accused as no such incident happened on the alleged date. It was wrong to suggest that accused was falsely implicated in the present case as he has made complaint against her and her family members when they threat him to implicate in false and frivolous rape case and other cases. It was wrong to suggest that this false complaint made against the accused as he has purchased a flat on second floor in her building through builders namely Fizal and Shahnawaz. It was correct that they had filed civil case for possession and permanent injunction in property No. 589, a flat on second floor against accused Dilsad which was pending before court of Ld. ADJ, Saket Courts, New Delhi. It was correct that the builder Faizal and Shahnawaz has sold out flat at second floor to the accused Dilsad without her and her mother's permission. It was correct that the flat on second floor in her property was in possession of accused Dilsad. It was correct that they had not permitted accused Dilsad to use the said flat. It was wrong to suggest that accused Dilsad never made any quarrel or misbehaving with her. It was wrong to suggest that relatives of accused had never quarreled with her as they were only going into the flat of accused on second floor. On the day of alleged incident, CCTV cameras were not installed in her building however it was installed after the present incident it may be in the month of October 2015 and accused person has forcibly taken possession of the second floor after the present incident FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 6 of 25 which was captured in the CCTV footage. Police officials did not obtain the CCTV footage for securing the incident of forcibly taking possession of the second floor by accused despite her several requests made to him and on one occasion police official had obtained the CCTV footage in a Pen Drive. It was correct that she had not given any CCTV footage to the IO of the present case till date however SHO concerned received the same from the concerned IO of the another case. It was correct that there was no other criminal complaint or case were made by her and pending against accused in court. She denied all suggestions put to her.
PW2 Naseema Khanam (mother of complainant) deposed that on 20.03.2015, she alongwith her daughter was present in her house and on that day, at around 67:00 PM, accused Dilsad along with Irshad and relatives of Irshad, namely Rida, Ruby, Ruksana and Sabana forcefully entered into her house and they demanded to give her flat situated at second floor of the building where she was residing and the said flat was under
construction at that time by the builders. Accused Dilsad pushed her and he caught hold hand of her daughter and he started to misbehave with her by touching her breast and putting his hand on her breast and he threatened them by saying that he had already committed rape to 34 persons and he has also threatened to make a false complaint against her daughter and all relatives. During the period of misbehaving with her daughter by accused FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 7 of 25 Dilsad, only Irshad was present there and all other persons who had accompanied accused Dilsad came out from the house. One builder was also present there who also left the spot with aforesaid person accompanied accused Dilsad. She alongwith her daughter went to police station but no police official met them except one police official who told them that all police official had gone for arrangement in "Yamuna Bachoo Andolan" and he suggested to come the next day. Her daughter had told her prior to this incident that one boy used to follow her prior to one and half month of incident. One or two times, she along with her daughter went to see the accused at the place where her daughter had told her but he did not find there. On the next very day, she alongwith her daughter went to PS and statement of her daughter was recorded by police official.
During crossexamination PW2 deposed that on the day of incident, when she went to PS for recording of statement of her daughter, no police official met them except one who told them that all police officials had gone for arrangement in rally which was on 20.03.2015. She did not remember the name of the police official who informed her regarding the same. She had not given any written complaint to the police on that day. Subsequently, she visited the police station for next 23 days and thereafter, her complaint was written upon her asking by one Constable Bittoo in the day time. She had accompanied her daughter for the said FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 8 of 25 complaint and the same was available on record. Thereafter, the witness is asked to show any complaint which was filed within 2 3 days after 20.03.2015 by her but the same was not found on record. It was wrong to suggest that she was deposing falsely and no such incident occurred and she never visited the police station. It was wrong to suggest that accused had purchased a house in the same building as that of hers. It was correct that she had filed a civil case against the accused for occupying his second floor. It was correct that accused has also filed a civil case against her in Saket court. She told the police official that she had visited the police station on 20.03.2015 and subsequently on 34 occasions but could not file her complaint since no police official was present due to arrangement in rally. Witness was confronted with the statement recorded u/s 161 CrPC Ex.PW2/D1 wherein the aforesaid fact was not recorded. She had three daughters and two sons. Apart from her and the complainant, there was no other family member present at home on the date of incident. Her sons were employed and went out for work at 10.00 AM and came back at 10.00 PM. At the time of incident, accused was accompanied by builders namely Shahnawaz and Faisal. Both the persons came subsequent to the accused. She did not remember if they came with the accused or subsequently. She had never visited the police station alongwith her sons in respect to the aforesaid incident. It was wrong to suggest that they are habitual FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 9 of 25 of filing cases against the accused and have falsely implicated the accused in several cases. It was wrong to suggest that the present FIR has been registered as a counterblast to the FIR registered against her sons for the offence of rape by the relative of the accused and the same was still pending. It was wrong to suggest that the present case was false and fabricated with the intention to grab the property of the accused. It was wrong to suggest that the flat of second floor was sold by the builder to the accused only after her consent. It was wrong to suggest that she had connived with builders namely Faisal and Shahnawaz and taken money for selling the flat of second floor of her property.
PW3 SI Ashok Kumar deposed that on 30.04.2015, he was posted as SI at PS H.N Din. On that day, he had received the present case file from MHC (R) at the instructions of SHO concerned as further investigation of the present case was marked to him. During the course of investigation, on 20.07.2016, he went to the residence of accused Dilsad at H.No. 108, R.B house, Basti Nizamuddin, New Delhi, where accused Dilsad met him and he gave him notice u/s 41 A CrPC which was Ex.PW3/A. After completion of investigation, he prepared the challan and filed it before the Court.
During crossexamination PW3 deposed that it was correct that no such record was available that on 20/21.03.2015, complainant came to PS. It was also correct that the accused FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 10 of 25 was permanently residing on the abovesaid address. He was posted in PS H.N Din for last 05 years. It was wrong to suggest that both the complainant and her mother are habitual to make complaints against several persons in the area. During investigation, he went to the house of complainant and inquired from the neighbours about the incident mentioned in the complaint of complainant then, the neighbours of the complainant had not supported the version of complainant and also stated that they were not aware about any such incident. It was correct that during investigation, it was revealed that there was property dispute between accused and complainant. It was wrong to suggest that the abovesaid complainant also made complaint against builder Shehnawaz and Faisal who constructed their house. It was wrong to suggest that when the construction was completed the abovesaid complainant with intention to grab the share of builder made false complaint against them also. It was correct that the abovesaid Nasim had made complaint of cheating and fraud by the builders Shehnawaz, Faisal and also complainant and her mother, who has conspired and cheated Nasim from whom Dilsad had purchased the flat in the property of complainant and her mother, which was pending under the investigation. It was correct that during construction of building of complainant which was constructed by builder Shehnawaz and Faisal, one FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 11 of 25 notice from MCD received by him for stopping the illegal and unauthorized construction in the premises of complainant. At that time, only one floor was constructed by the abovesaid builders. It was wrong to suggest that after receiving notice from MCD, he had issued notice to stop the illegal construction of premises of complainant.
PW4 SI Neetu Singh deposed that on 05.04.2015 he was posted as SI in PS H. N. Din. On that day complainant had given a written complaint Ex.PW1/A to him. He made endorsement on the same at point X and handed over the same to concerned duty officer for registration of FIR. After registration of FIR, original complaint and copy of FIR was handed over to him by concerned duty officer as further investigation of present case was marked to him. Thereafter he along with complainant went to the place of occurrence at H.No.589, ground floor, Musafir Khana near Dargah hazrat Nizamuddin and he prepared site plan at the instance of complainant which was Ex.PW4/A. He recorded supplementary statement of complainant and statement u/s 161 CrPC of complainant's mother namely Naseem Khan. On the next day statement u/s 164 CrPC of the complainant got recorded. On 13.04.2015 he was transferred from PS H N Din to west district Delhi due to which present case filed was handed over to MHCR at the instruction of SHO concerned.
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 12 of 25 During crossexamination PW4 deposed that on 05.04.2015, he visited at the spot i.e. residence of complainant, which was consisting of three storey building and complainant was found residing at ground floor. He did not make enquiry as to who was residing at remaining floors of the building. He did not make enquiry from the neighbors of the complainant about the incident occurred on 20.03.2015 as no neighbors met him when he visited at the spot on 05.04.2015. He did not collect the mobile details showing time and location of complainant as well as accused at the spot on the alleged date of incident. During the period of incident, no CCTV camera was installed at the police booth Basti Nizamuddin. He did not know whether the mobiles of accused Dilsad was situated opposite to the police booth, basti Nizamuddin. There was no CCTV camera found installed between spot to police booth H.N. Din. He did not verify from the mobile phone of the complainant as to whether she made a call at 100 number immediately after incident as complainant had not disclosed this fact to him during the course of incident. He did not remember whether the complainant met him on the very next day of the incident and narrated the whole incident to him. He did not remember whether on 20.03.2015, all police officials of P S H.N. Din were engaged in arrangement for Yamuna Bachao Andolan. As per his knowledge, no constable in the name of Ct. Bittoo was FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 13 of 25 posted at PS in the month of March 2015. Upon enquiry from the complainant it was revealed that she was pursuing study in the month of April 2015. He prepared site plan around 1.00 PM on 05.04.2015. He asked from the complainant the delay in lodging complaint and she explained that she got afraid as accused had threatened to kill her. Complainant did not disclose the name of any person in whose presence accused threatened her and obstructed her in her way to her house. During the course of investigation, he found that complainant was residing at the spot for last several years. He did do not have personal knowledge regarding complaint made by brother of accused namely Naushad and her mother dated 23.03.2015 to PS Nizamuddin. The complainant did not disclose any civil suit pending between complainant and accused. He did not verify regarding the antecedent of accused as to whether any other criminal cases are pending against him or not.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused examined one (01) witnesses in his defence.
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 14 of 25 DW1 Dilsad (accused u/s 315 CrPC) deposed that he had purchased a flat in Nizamuddin having house No.589, Nizam Nagar, Basti Hazrat Nizamuddin, Second Floor, New Delhi in the year 2014, however, the same was documented by way of Power of Attorney, Agreement to Sale, Possession letter and affidavit in January, 2015. He had purchased the aforesaid property from one builder namely Sh. Shahnawaz. The aforesaid property was an under construction building and therefore, his younger brother used to sometimes visits to see the progress of construction. At that time, one lady namely Naseema Khanam and her daughter who were residing on the ground floor, third and fourth floor of the said building used to often quarrel with his brother saying that the builder has sold off the second floor illegally to them. Thereafter, he also told the complainant that he had a copy of collaboration agreement which he had entered into with a builder. Thereafter, due to the aforesaid quarrels he was suggested by the builder that he should not visit the aforesaid property for sometime and he shall sort out the quarrel with the complainant. Thereafter, he told the builder to return his money since he found the quarrelsome behaviour of the complainant. However, builder refused to return his money. On 19.03.2015, being a Monday there was a Monday market in the area of Nizamuddin Basti. At that time, complainant visited the said market and misbehaved with his mother. At that time, complainant's mother Naseema FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 15 of 25 Khanam and the complainant even went to the shop of his younger brother situated in the same area and misbehaved with him. Thereafter, his mother and younger brother filed a complaint against the complainant and her mother at the concerned police station and they handed over the documents to the police. The photocopy of the collaboration agreement running into six pages was mark DX1 and the photocopy of the GPA of the aforesaid property was mark DX2 and the copy of the Agreement to Sale was mark DX3 and copy of the complaint to the SHO concerned dated 23.03.2015 was mark DX4. Thereafter, complainant and her mother to harass him filed false complaints against him in the police station with the intention to usurp his property. Thereafter, he was falsely implicated by the complainant. He filed a case u/s 420/34 IPC against the builder and complainant and her mother vide FIR No.448/2016, PS H.N. Din which was still pending before the court and the copy of the bail order in the aforesaid FIR dated 07.02.2017 was mark DX5 and the copy of FIR No.448/2016 was mark DX6. He had also filed a civil suit against the complainant which was still pending in the court and the copy of the order dated 20.11.2015 was mark DX7. The copy of Agreement to Sale dated 12.01.2015 running into four pages was mark DX8. He was falsely implicated in the present matter by the complainant and he did not commit any offence on the alleged date of incident.
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 16 of 25 During crossexamination DW1 deposed that it was correct that prior to collaboration agreement mark DX1, owner of the entire property bearing No.589 was Naseema Khanam. He did not have the original collaboration agreement and the same was in possession of builder. It was wrong to suggest that the said collaboration agreement was forged and fabricated. At the time of execution of aforesaid flat between him and builder Shahnawaz vide agreement to sale mark DX3 and DX8, no objection certificate of original owner of the plot in which the aforesaid second floor was situated, was taken. At present, he did not have any receipt for amount of consideration paid to Shahnawaz by him as per agreement to sale as the receipts were filed in the civil suit. He made payment through cheque. It was wrong to suggest that he had not paid any consideration amount for the aforesaid flat to anyone and General Power of Attorney mark DX2, Agreement to sale mark DX3 and mark DX8 were false and fabricated. It was wrong to suggest that he had made false complaint against complainant and her mother Naseema Khanam dated 23.03.2015 mark DX4 as a counterblast of the complaint made by complainant and her mother against him regarding the incident occurred on 20.03.2015. It was wrong to suggest that on 20.03.2015, he forcibly entered into the house of complainant and misbehaved with her and uttered abusive language towards her and extended threats and wrongfully restrained her. It was wrong FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 17 of 25 to suggest that he wanted to grab the aforesaid property in question from complainant without her consent by preparing false and fabricated documents.
6. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses and therefore accused is liable to be convicted for the offences charged. He has also argued that the complainant being young girl of tender age and since she was threatened by the accused could not file her complaint on the date of incident i.e. 20.03.2015 and the same was filed on 05.04.2015 and the same shows the reason for delay. He has also argued that there is complete corroboration in the testimony of PW1 and PW2. He has also argued that the accused on several previous occasions had stalked the complainant and therefore, accused is liable to be convicted for the offences.
7. However, on the other hand, Ld. Counsel for accused has argued that the accused have been falsely implicated by the complainant and it is an admitted fact that the complainant and the accused are residing in a same locality for several years and it is also admitted that complainant and the accused are neighbours. Further, the present complaint was filed by the complainant after having spoken to her family members and FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 18 of 25 was not made on the same day as no such incident occurred. It is also argued that the complainant has filed the present false case against the accused only with the intention to pressurize him as there are several civil matters regarding the property pending between them. Therefore, the same is false as the allegations are an after thought. It is further argued that there is no corroboration in the testimony of the witnesses and the statement of the complainant. It is also argued that the complaint is vague and the allegations are fanciful and do not inspire confidence and therefore, accused is liable to be acquitted. Further despite the fact that the alleged place on incident was a thickly populated residential area, none of the public persons were examined the prosecution. It is also argued that admittedly on the alleged date of incident, the other family members of the complainant was present in the house and even then none of them was examined as witnesses. Further, the complainant did not make a call at 100 number and though claimed by the complainant that she gave a written complaint to the police on 21.03.2015, the same was not available on record and therefore the allegations of complainant are not substantiated by any cogent evidence and therefore accused is liable to be acquitted. Ld. Counsel for accused has relied upon the judgment in the case of "A. Shankar Vs. State of Karnataka 2011 (6) SCC" stating that delay in lodging of FIR FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 19 of 25 is not explained is fatal to the veracity of witness. In "Krishan Singh Vs. Gurpal Singh & Ors. 2010 IV AD (Crl.) (SC) 233 "Further, prompt an early reporting of occurrence by the information with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing of the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal". He has also relied upon the judgment in the case of "Dr. Sunil Kumar Shambhu Dayal Gupta and Ors Vs. State of Maharashtra, JT 2010 (12) SC 287" that any discrepancies, omission of vital nature and magnitude so as to affect the trial are contradictions/discrepancies which lead to disbelieve the witness. He has also relied upon the judgment in the case of "State of Haryna Vs. Ram Singh 2002 (1) JCC 385" that evidence tendered by defence witnesses cannot always be termed to be a tainted one, the defence witnesses are entitled to equal treatment and equal respect as that of prosecution. The issue of credibility and trustworthiness ought to be attributed to the defence witnesses at par with the of the prosecution.
Court Observation:
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 20 of 25
8. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the following conclusion:
In the present matter, prosecution examined as many as four witnesses among which PW1 was the complainant and PW2 was the mother of the complainant. Both PW1 and PW2 are also the star witnesses of prosecution being the victims themselves and all remaining witnesses examined by the prosecution were formal in nature. However, if we carefully peruse the complaint Ex.PW 1/A, statement of PW1 recorded u/s 164 Cr.PC and her testimony before the court, there are glaring contradictions and no corroboration. Further, there is vast improvement in the testimony of the complainant and the complainant has failed to even narrate the manner in which the incident occurred and has not even stated if on the alleged date of incident, she made a call at 100 number. PW1/complainant has admitted during her examination on behalf of accused that the place of incident was a crowded place however, when the accused misbehaved with her, she did not raise alarm. She admitted that there were many public persons when the incident occurred. She further stated that the accused had misbehaved with her on previous occasions, however, none of previous occasions or such incident were mentioned or explained by the complainant. She did not remember the dates of any of incidents upon which accused had misbehaved with her on FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 21 of 25 earlier occasion. During crossexamination, PW1 has admitted that prior to 05.04.2015 she had not made any complaint in writing to the police, however, subsequently, she had stated that she made a complaint in writing to the police on 21.03.2015 but the said complaint was not found on record and therefore, the aforesaid averments are false and do not find credibility. Further, the complainant herself had admitted there were several civil cases pending between the complainant and the accused persons regarding the property and also admitted that she did not allow the accused to enter the said property/flat. She also admitted that she had not mentioned the date of incident in her statement recorded u/s. 164 Cr.PC.
9. Further, PW2 being the mother of complainant has stated in her examination in chief that accused alongwith other relatives namely Riba, Ruby, Rukhsana, Sabana had forcefully entered into her house and demanded to hand over the flat of the second floor to them and thereafter accused pushed her and caught hold off hand of her daughter and started misbehaving with her daughter by touching her breast and put his hands on her breast and threatened to commit rape. However, the aforesaid fact does not find mention in her statement recorded u/s. 161 Cr.PC neither in the testimony of PW1 nor in the complaint Ex.PW1/A. Further, though the complainant being PW1 and PW2 have stated the names of several other persons who allegedly accompanied the FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 22 of 25 accused to the house of complainant, the same does not find mention in Ex.PW1/A or Ex.PW1/B. Further, none of the other family members of the complainant who were present at the time of incident were examined by the prosecution. The complainant did not mention regarding the dates on which accused Dilsad alongwith another person namely Irsahd had followed the complainant or threatened to throw acid on her face and therefore, the same are bald allegations and without any cogent evidence. During investigation IO had already admitted that despite efforts no person with the name of Irsahd was found traceable or known to the accused. It is further admitted by PW1 and PW2 that they had property disputes with accused and therefore, false implication cannot be ruled out.
10. In the present matter, accused has been charged for the offence u/s 351/354D/351/354/506/509 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
11. In the present fact and circumstances, accused cannot be held liable for causing the offence of outraging the modesty of the complainant or of abusing the complainant and threatening her by trespassing into the house of the complainant or of stalking the complainant.
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 23 of 25
12. The improvement in the version of PW1 and PW2 are crucial as Ex. PW1/A is a hand written complaint admittedly prepared by her after sixteen days of incident and there is no justification or plausible ground as to why the complainant was unable to narrate the incident explicitly or elaborate upon the details particularly when the same has been written when the complainant was not under immediate shock. The very fact that the complainant did not mention about the aforesaid fact and was never taken for medical examination from the place of incident itself shows that the complainant had not suffered any injury on the alleged assault upon her by the accused. Further, the allegations of touching the complainant with the intention to outrage her modesty are also not sustainable as the same are completely vague and do not inspire confidence. The complainant has leveled general allegations against the accused and the same are devoid of merit as the complainant has not explained the same even during her statement recorded u/s 164 CrPC. Further, the story of the complainant cannot be believed as she herself has admitted during her crossexamination that at the place of incident, there were several public persons but none was examined by prosecution. Therefore, there was nothing to lend support to the testimony of PW1 apart from bald averments made in the complaint and her testimony before the court. Therefore, it can be safely concluded FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 24 of 25 that the guilt of the accused has not been proved beyond reasonable doubt.
13. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, accused Dilsad is acquitted for the offences U/s 354/354D/451/341/506/509 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 30.10.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.10.31
12:02:49 +0530
FIR No. 251/2015 State Vs. Dilsad; PS H.N. Din 25 of 25