Delhi District Court
State vs . Lovely on 13 May, 2013
1
IN THE COURT OF MS. PRIYA MAHENDRA, METROPOLITAN MAGISTRATE
MAHILA COURT-02 (SOUTH WEST), DWARKA COURTS, NEW DELHI
FIR NO: 315/98
PS: DELHI CANTT
U/s: 506/507/509 IPC
STATE VS. LOVELY
JUDGMENT
Date of institution : 31.08.1999
Name of the complainant : Sh. Pardeep Kadiyan and Smt.
Rachna Kadiyan
Name & address of the accused : Accused Lovely S/o Sh. Karan Singh
Nehra,
R/o 1/118, Sadar Bazar, Delhi Cantt.
Offence Complaint of : U/s 506/507/509 IPC
Plea of the accused persons : Pleaded not guilty
Final Order : Acquitted
Date for arguments : 10.05.2013
Date of announcing of order : 13.05.2013
BRIEF FACTS:-
1. The accused Lovely has been brought before me to face trial under Section 509/506/507 IPC. The criminal law was set into motion on complaint made by Pradeep Kadiyan (husband of victim) that some unknown caller was calling up on the telephone no. 5694438 which was installed in his house. He hurls abuses and uses indecent language on phone. He also threatens to kidnap his son or to kill him in case the matter is reported to police. He also blackmails his wife FIR No. 315/98 State Vs. Lovely 1/9 2 Rachna Kadiyan that he has recorded her voice and shall use the said recording to tarnish her image by distributing the said tape. His wife has doubt that this all has been done by their neighbour Lovely and has sought action against the caller.
2. The said complaint culminated into registration of FIR. The charge sheet was filed. After taking cognizance, the accused was supplied with the copies of the documents U/s 207 Cr.P.C and on 07.08.2003 the accused was charged U/s 509/506/507 IPC to which he pleaded not guilty and claimed trial.
3. The prosecution examined total 6 witnesses in the present case. There are total 3 public witnesses. PW-2 is the complainant and PW-3 is his wife. PW-6 is a witness from MTNL. The other witnesses are official witnesses. The testimony of public witnesses shall be discussed later. Brief testimony of official witness.
PW-1 HC Dayashankar, is the Duty Officer, who proved the registration of FIR as Ex. PW1/A and his endorsement on rukka as Ex. PW1/B. PW-4 SI Pawan Kumar, is the IO and he stated in his evidence that on 22.07.1998, he was posted at the PS Delhi Cantt and complainant Pradeep Kadian came to the PS and gave him complaint Ex. PW2/A. The said complaint was marked to him and thereafter, on 30.07.1998 he got the telephone no. i.e. 5694438 on observation through MTNL office. He stated that on 10.08.1998 he received the report from MTNL. The complainant had also got the conversation recorded through cassettes and thereafter he prepared the rukka Ex. PW4/A and sent it to Ct. Mukesh for registration of FIR. He stated that Ct. Mukesh went to the PS and got the case registered vide Ex. PW1/A and thereafter, he seized the two FIR No. 315/98 State Vs. Lovely 2/9 3 cassettes Ex. PW4/B. He stated that he has also seized the MTNL telephone conversation record Ex. PW4/C (colly. 19 pages). The seizure memo is Ex. PW4/D. He stated that he also recorded the statement of witness. He thereafter, on 11.08.1998, arrested the accused lovely vide Ex. PW4/E and conducted his personal search vide personal search memo Ex. PW4/F and also recorded his disclosure statement Ex. PW4/G. He correctly identified the case property. In his cross-examination, he stated that he received only one complaint Ex. PW2/A made by Pardeep Kadiyan. No other complaint was received by him either from Rachna Kadiyan or Pardeep Kadiyan. He admitted that victim Rachna Kadyan had never given him any complaint and added that her husband has given the complaint. Both the parties are neighbours. He also stated that he cannot tell that whether the accused and complainant were on visiting terms prior to complaint as he has not investigated the matter in that respect. He admitted that complainant Pradeep Kadyan is a political active person. He also admitted that Vimal Choudhary who is cousin brother of accused lovely is also a active person. He does not remember whether Vimal Choudhary and Pradeep had fought an election with each other twice which Vimal Choudhary had won. He denied the suggestion that complainant has filed the false politically motivated complaint in order to defame Vimal Choudhary and his family members. He had also stated that he had not investigation the matter from the neighbours of the accused and complainant. He had not obtained the voice sample of accused and also not sent the same to FSL during investigation. He had not taken the mobile number of accused lovely during investigation. He admitted that during his tenure at Delhi Cantt. he received no other complaint against accused loverly regarding this incident. He denied that he has not investigated the matter properly and conducted the partial investigation.
FIR No. 315/98 State Vs. Lovely 3/9 4 PW-5, Ct. Mukesh is Constable who was involved during investigation with the IO. He stated that on 10.08.1998 he was posted at PS Delhi Cantt. He alongwith IO went to MTNL office on that day where the record of phone no. 5694438 was given to him consisting of 19 pages. Thereafter, he and IO reached to the house of the complainant where he gave two cassettes containing recordings. He, thereafter, got FIR registered and came back to spot. The MTNL record was seized by IO vide Ex. PW4/D and cassettes vide Ex. PW4/B, bears his signatures. Accused lovely was arrested and his personal search was conducted in his presence. He correctly identified the case property two cassettes. The defence opted not to cross examine him.
PW-6 Sh. A.D. Kurrara, was Division Engineer, Phones (Out Door) in MTNL, Delhi Cantt, exchange, he stated in his evidence that he was posted in MTNL as Division Engineer from 1997-2003 and retired in 2004. No police officer met him in the year 1998 and made any request to him for putting the number 5694438 on surveillance. He had not given any document to police. He was declared hostile by the Ld. APP. He stated in his cross-examination, that he does not remember that in the year 1998 the police came to him and requested him to put the said telephone number under surveillance. He added that there is no provision of keeping any number on surveillance in Delhi Cantt. MTNL Office. The said facility was available in Janakpuri Main Exchange. He denied the suggestion that he handed over 19 pages of MTNL call record pertaining to the said number to the police. His attention was drawn to the statement Ex. PW6/PX1 which he completely denied. He denied the suggestion that he is under threat or under any coercion or won over by the accused in order to depose in his favour. In his cross-examination by counsel for accused, he stated that no person namely FIR No. 315/98 State Vs. Lovely 4/9 5 Pradeep Kadiyan and Rachna Kadiyan from Delhi Cantt. ever visited in his office with police.
4. The accused examined 1 witness in his defence.
DW-1, Vimal Choudhary deposed that Mr. Pradeep Kadiyan, Husband of the complainant, Ms. Rachna Kadiyan, had contested elections against him twice for the post of Member Cantonment Board, Delhi Cantt and husband of the complainant lost elections both time. He stated that accused Lovely was his supporter during elections. He also deposed that complainant falsely implicated the accused in the present case due to political enmity since he supported him. He deposed that accused Lovely, he and complainant are the resident of same locality in the radius of 200 mtrs. He deposed that as per his knowledge accused was never involved in any other criminal case. In his cross examination, he admitted that there are cordial relations between him and accused. He stated that Pradeep Kadiyan faced defeat in elections in the year of 1986 and 1992. He denied the suggestion that complainant has not falsely implicated accused lovely because of the political enmity. He denied the suggestion that Pradeep Kadiyan had not faced defeat in elections against him or that he contested the elections against him ever.
5. It is stated by Ld. APP that there is sufficient material on record to hold the accused guilty. On the other hand Ld. Counsel for the accused has stated that the complainant (PW-2) and his wife Rachna (PW-3) have made material improvements in their testimony. There are significant inconsistencies in the evidence of public witness and the official witness. The entire case of the prosecution falls to ground as PW-6 who is independent witness has not supported the case of the prosecution.
FIR No. 315/98 State Vs. Lovely 5/9 6
6. I have carefully considered the arguments advanced and perused the record carefully.
BRIEF REASONS FOR DECISION:
7. The complaint Ex. PW2/A reflects that the complainant and victim were not sure of the identity of the accused at the time of filing of the complaint. The IO in his evidence has claimed that he put the telephone number of the complainant and victim i.e. 5694438 on surveillance, and the complainant also got the conversation made on her phone by her tormentor recorded on cassette. On the basis of the said material, the prosecution has connected the accused Lovely with the offence. However, the PW-2 admitted in his cross-examination that police did not take any voice sample of accused, his wife, or his voice in his presence during investigation. He does not know whether police had taken any such sample. The IO has also stated in his cross-examination that he had not obtained the voice sample of the accused and not sent the same to FSL Rohini during investigation. PW-2 and PW-3 also stated that they cannot tell as to the number from which accused used to call. PW-2 also stated that IO did not tell him about the numbers from which the calls were being made to his wife. On the top of it, the person (PW-6) who purportedly handed over the MTNL record of the said number to the IO completely denied during his evidence that any request was made to him to keep any such telephone number under surveillance and has also denied giving any record to any police official in respect of the telephone number in question. Thus, it remains unexplained that on what basis the investigating officers reached the conclusion that it was the accused who was making the obscene and FIR No. 315/98 State Vs. Lovely 6/9 7 threatening calls on the phone of the complainant. Thus, there is no concrete and cogent evidence on record to connect the accused with the offence.
8. The complainant PW1 and his wife PW-3 made significant improvements in their evidence. Both of them stated in their evidence that the accused used to stop victim Rachna on her way and use unparliamentary language with her before the matter was reported to the police. It is also deposed by them that accused used to drive his car in rash and dangerous manner whenever victim Rachna Kadiyan was going to the market in order to threaten her that he will mow her down. However, no such accusation was made by the complainant in complaint Ex. PW2/A or by PW3 in her statement U/s 161 Cr.P.C Ex. PW3/DX1. They were duly confronted with the said omissions in complaint Ex. PW2/A and Ex. PW3/DX1 but failed to give any satisfactory reply for the omissions and simply stated that they have stated the fact to the police. Both PW2 and 3 also stated that even today, the accused drives his car dangerously whenever his wife goes to market in order to scare her. But, PW-2 could not even state in his cross-examination which car the accused possesses and has not filed any other complaint against the accused before or after the present complaint Ex. PW 2/A with respect to the said incidents as per their evidence. It is totally unbelievable that the complainant and his wife would omit such vital facts in complaint Ex. PW2/A and Ex. PW3/DX1, and complainant shall take no action against the accused for his repeated misdemeanors had they faced continuous harassment at the hands of the accused even after filing of case. The improvements made by PW-2 and PW-3 cast shadow of doubt on their credibility and accused cannot be held guilty on the basis of their testimony without any corroborative evidence.
FIR No. 315/98 State Vs. Lovely 7/9 8
9. Further, there is also material inconsistencies in the evidence of PW-3 on one hand and PW-4 on the other hand with regard to the person who approached the police with complaint Ex PW2/A. PW-3 stated during her evidence that she accompanied her husband to the police when his husband went to the police station to give the complaint. On the other hand, the IO (PW-4) stated in his evidence that the complainant PW-2 alone came to the police station to lodge the complaint. He has no where stated in his evidence that complainant came with his wife to lodge complaint Ex. PW2/A.
10. Both the PW-2 and PW-3 as well as PW-4 admitted that the accused is the neighbour of PW-2 and PW-3. PW-2 admitted that he and Vimal Choudhary fought election against each other. PW-3 also admitted that her husband contested the election twice in which one of the opponents was Vimal Choudhary. She also admitted that her husband has lost both the elections. The IO admitted in his cross-examination that the accused is the cousin of Vimal Choudhary. The PW-3 also admitted in her cross-examination that her father in law is also active in politics and she campaigned in support of her husband during election. PW-2 as well as PW-3 denied the suggestion that they had falsely implicated the accused as the accused and his family members are political rivals of complainant and as the accused Lovely became supporter of Vimal Choudhary. The defence examined DW-1, Vimal Choudhary, who deposed during the trial that accused Lovely was his supporter during election. The complainant lost election in which he was his opponent. In view of the political enmity, the complainant alongwith his wife involved the accused in the present case. It is borne out from the evidence that the accused Lovely is cousin of Vimal Choudhary and complainant lost FIR No. 315/98 State Vs. Lovely 8/9 9 election twice against Vimal Choudhary in which accused lovely was supporting Vimal Chaudhary. Thus, the present case being result of the political rivalry between the accused Lovely and the complainant cannot be ruled out completely.
11. In view of the aforesaid, I am of the opinion that the accused is entitled to benefit of doubt in the present case and guilt of the accused is not proved beyond reasonable doubt by the prosecution. Accordingly, the accused Lovely is acquitted from offence punishable U/s 506/507/509 IPC.
ANNOUNCED IN THE OPEN COURT (PRIYA MAHINDRA)
ON 13th MAY, 2013 METROPOLITAN MAGISTRATE
MAHILA COURT-2/DWARKA
NEW DELHI
FIR No. 315/98 State Vs. Lovely 9/9