Delhi District Court
Criminal Case/397/1995 on 15 March, 2013
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IN THE COURT OF SH. LOKESH KUMAR SHARMA,
CHIEF METROPOLITAN MAGISTRATE: NORTH: ROHINI COURTS,
DELHI
Case ID no.: 02401R0012351996
State v. (1) Smt. Dhanpati
(2) Deepak
(3) Samay Ram
(4) Smt Usha Rani
FIR No : 397/95
U/S: 380/448/34 IPC
P.S : Mangolpuri (Crime Branch)
(Investigated by SIT)
JUDGMENT:
1. Sl. No. of the Case : 117/2/1996
2. Date of Commission of Offence : 19.11.1993
3. Date of institution of the case : 01.06.1996
4. Name of the complainant : Sh. Raj Singh S/o Sh. Khacheru
R/o JII/32, Sanjay Market Colony,
Wazirpur, Delhi.
5. Name of the accused, parentage &
address : (1) Smt. Dhanpati W/o Sh. Samay
Ram .
(2) Deepak @ Laddi S/o Samay Ram
(3) Samay Ram S/o Kanhaya Lal
All R/o D11, 458, SecVII, Rohini,
Delhi.
(4) Smt Usha Rani W/o Pawan
Kumar R/o H.No. 234, Village
Rithala, Delhi.
State v. Dhanpati etc. P.No. 1Of 39
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6. Offence complained or proved : U/s 448/380/34 IPC.
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Acquitted
th
9. Date of Final Order : 15 March 2013
BRIEF REASONS FOR THE DECISION OF THE CASE :
1. As per the case of prosecution; on 19.11.1993 at around 5 pm , all the accused persons in furtherance of their common intention had committed a criminal trespass in the property bearing no. 234, Village Rithala, Delhi belonging to the complainant Raj Singh S/o Khacheru R/o JII/32, Sanjay Market Colony, Wazirpur, Delhi and had also committed theft of household articles/utensils/goods etc., the details of which were mentioned in recovery memo Mark A which were also recovered from their possession from house no. 458/D11, Sec.7, Rohini which property was owned by and in possession of accused Dhanpati W/o Sh. Samay Ram. On a complaint made by complainant to the Commissioner of Police in this regard and upon directions of Hon'ble High Court of Delhi contained in order dated 15.05.1995 in criminal writ petition no. 194/94 the directions for registration of FIR were issued and investigation of the present case was assigned to Crime Branch. State v. Dhanpati etc. P.No. 2Of 39
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2. After investigation, the chargesheet was filed by the IO wherein it was categorically stated that total 21 witnesses including the complainant were examined by the IO u/s 161 Cr.P.C. Out of said 21 witnesses , 15 witnesses had stated that accused Usha Rani was already residing in the disputed house since 15.05.1990 and was continued to be in possession of the same even on the alleged date of incident i.e 19.11.1993. Even the presence of remaining accused persons who were the parents and younger brother of Usha Rani was also denied by those witnesses during the investigation of the case who had also denied the factum of commission of any such offence on the alleged date and time at that particular spot. Further, it was revealed during investigation that a similar complaint in respect of an offence of house trespass was also lodged by complainant against accused Usha Rani on 15.05.1990 itself which fact further fortified the version of accused that she was in continuous possession of said property since 15.05.1990. However, be that as it may , since remaining five witnesses examined during investigation had supported the version of complainant and since investigating agency was not in a position to discard their version in toto, hence accused persons were chargesheeted in the present case for the offences u/s 448/380/34 IPC . State v. Dhanpati etc. P.No. 3Of 39
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3. After filing of chargesheet , Ld Predecessor of this court was pleased to take cognizance of the offences against accused persons and they were also summoned to face trial. Copies of chargesheet alongwith accompanying documents were supplied to them in compliance of section 207 Cr.P.C and charge for the aforesaid offences was also framed against them on 31.10.2000 to which all the accused persons had pleaded not guilty and claimed trial.
4. In order to substantiate its allegations against the accused persons, prosecution instead of examining only those five witnesses who had supported the version of complainant, had gone to the extent of examining 14 witnesses in the present case.
5. PW1 is one Sh. Suresh S/o Chet Ram R/o H.No. 233, VPO Rithala who had also stated in his examination in chief that on 19.11.1993 , the accused persons had broken open the locks of the house of Raj Singh at village Rithala , however, their names except name of Usha Rani were not known to him. Accused persons were also advised not to break open the locks but they had not paid any heed to said advise or request.
State v. Dhanpati etc. P.No. 4Of 39
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6. During his crossexamination by ld defence counsel, it was deposed by PW1 that he was a part of the crowd of 5060 people who were standing in the street which was having a width of 56 mtr only and were watching the incident. Summons of this witness were stated to have been received on his behalf by one Suresh S/o Khacheru who was the younger brother of the complainant. During his further cross examination, it was admitted by PW1 that he had not seen as to who had broken open the locks of the house of the complainant. His statement was stated to have been recorded by the police at ITO but he could not remember the name of said police official who had recorded his statement. As per this witness, complainant had never resided in the said house since 1990 till the date of his deposition . Witness himself was stated to have shifted to Budh Vihar in the year 1984 but according to him on the date of incident in the year 1993 he was residing at village Rithala itself. It was further deposed by him that though ordinarily he had resided at Budh Vihar since 1984 but approximately for about six months he had also resided in village Rithala. However, he had no knowledge about the fact as to whether the son of the complainant namely Pawan alongwith his wife Usha Rani (accused in the present case) and their two sons used to live in the house at Rithala or not. He State v. Dhanpati etc. P.No. 5Of 39 : 6 :
had categorically admitted that he was deposing in the court at the instructions of Suresh S/o Khaceru who was the younger brother of the complainant. Further, he had stated that after arrival of Raj Singh at spot within half an hour, the mob gathered there had dispersed and Raj Singh was advised not to create any dispute further but he did not know as to whether any police and PCR had also arrived at the spot or not.
7. PW2 is one Sh. Madan Mohan S/o Late Sh. Kasturi Lal who had claimed himself to be a witness of recovery and seizure of goods by the police from house no. D11458, Sec.7, Rohini and inventory of the goods Ex. PW2/A bearing his signatures at point A was prepared and besides him one Sh. K.K. Chadha was also stated to be present at the time of said recovery. During his cross examination , he had stated that he had seen accused Dhanpati wearing a violet colour polyester printed Jaipuri saree even prior to November, 1993.
8. PW3 is Jeet Ram S/o Prem Chand who had also stated in his examination in chief that on 19.11.1993 at about 6.15 pm when he had visited village Rithala , he found the doors of the house of Raj Singh in a State v. Dhanpati etc. P.No. 6Of 39 : 7 :
broken condition and the articles were found scattered all around and huge crowd was also seen gathered there. PW3 had tried to pacify the accused persons as well as complainant who was his relative but the matter could not be pacified as accused persons were abusing Raj Singh in a filthy language and Raj Singh was insisting upon the registration of case against the accused persons. As per this witness, on 18.02.1990 complainant Raj Singh had returned all the dowry articles to Smt Usha and Dhanpati (accused persons in the present case) in the presence of 810 respectable persons of the society and list of returned articles was also prepared in that regard which was signed by all the persons present there including PW3 as well. Thereafter, the accused persons were stated to have taken away the said dowry articles with them and after few days , present case was registered against them in which police had recorded his statement.
9. During his crossexamination by ld defence counsel, he had stated that he was posted in DDA at Paschim Vihar office on 19.11.1993 but conceded that he had not attended his office on the date of incident.
Complainant was stated to be his real brotherinlaw and his statement was recorded by the police at PHQ, ITO. Witness had also failed to State v. Dhanpati etc. P.No. 7Of 39 : 8 :
remember as to whether he had received any summons for getting his statement recorded at PHQ or not. The office hours of this witness were stated to be 10 am to 5 pm and as per his version one almirah, one double bed, some chairs etc alongwith some other articles , the details of which he could not remember , were handed over by complainant to the accused persons towards return of dowry articles. However, no such copy of list of returned articles was handed over to him by either of the parties. Witness had also failed to recall the premises number of the house where the complainant Raj Singh, his son Pawan and his daughter inlaw Usha were residing as on 18.02.1990 on the date of alleged return of articles. Interestingly, even this witness had also not received any summons from the court for his appearance as a witness in this case rather he had also appeared at the instance of Suresh Kumar who was the younger brother of the complainant. Though witness was aware about the several litigations pending between the parties apart from the present case but he was not sure about the specific number of such litigations filed by them against each other. Formal suggestions as put to him were denied by him as incorrect. It is however important to note here that incidence in the present case was stated to have occurred at around 5 pm , whereas this PW had reached the spot at about 6.15 State v. Dhanpati etc. P.No. 8Of 39 : 9 :
pm i.e after occurrence and hence by any stretch of imagination , he could not be termed or regarded as an eyewitness and hence no credibility can be attached to his deposition as well. Interestingly he had not even deposed about the fact as to who had broken open the locks of the house and had only talked about broken doors and not locks.
10. PW4 is one Sh. Suresh Chander S/o Khacheru Singh who is none other than the younger brother of the complainant himself. During his examinationinchief he had deposed that he was working as Baldar in DDA at Rohini and complainant was residing at Ashok Vihar. His nephew Pawan Kumar was stated to be married with Usha in the year 1989 and there was an amicable settlement arrived between the family members of PW4 as well as Pawan and his wife Usha in the year 1990 pursuant to which accused Usha had taken away all of her household articles and this settlement was also reduced into writing which was duly signed by accused Usha and her family members. However, thereafter accused Usha had further lodged a complaint against complainant Raj Singh , PW4 and their mother in respect of dowry demands. Usha Rani was stated to be working with Delhi Police at the relevant point of time as well as on the date of his deposition before the court and as per this State v. Dhanpati etc. P.No. 9Of 39 : 10 :
witness on 19.11.1993 said Usha alongwith her brother, mother and father and 45 other persons had made an attempt to forcibly open the lock of the house of the complainant situated at village Rithala having municipal no. 264.
It is pertinent to mention here itself that PW4 who also happened to be the real younger brother of the complainant had cited the wrong premises number of the house where the alleged occurrence had taken place because as per records, the same was 234 and not 264 as was deposed by him.
11. Further he had deposed that after breaking open the locks of the house of the complainant, all the accused persons had entered inside but in the meanwhile he had telephonically informed the complainant regarding the said matter and after entering inside the house of the complainant, accused persons had started collecting articles from his house and putting them in a gunny bag. After receiving his telephonic call, complainant alongwith his another brother namely Shiv Charan had arrived at the spot. It was also deposed by him that in the year 1995, the accused Usha and her mother had put their own locks on the main door of house of PW4 itself, matter was though reported to State v. Dhanpati etc. P.No. 10Of 39 : 11 :
the police but no action was taken by it.
12. During his crossexamination by ld defence counsel , it was deposed by PW4 that his duty hours were from 9 am to 5 pm . No complaint was ever lodged against his father by the accused Usha herein related to offence u/s 406/498A IPC . The written settlement or compromise allegedly entered into between the accused persons and the complainant , was not placed on judicial record. As per this witness, husband of accused Usha namely Pawan had never resided in house no. 234, Rithala. Even the premises number of PW4 was also stated to be 234 where a wooden door was fixed at the main gate. Accused persons were stated to have got their own door affixed in the portion which had fallen to the possession and share of the complainant after partition. It was also deposed by PW4 that 2530 years had already passed since the complainant Raj Singh had resided in the said house but sometimes he used to visit the said house. At the time of incident, quite contrary to the version of PW1 namely Suresh Kumar who had deposed about the presence of at least 5060 persons at the site at the time of incident, PW4 had stated during his crossexamination that their few neighbourers namely Suraj Bhan, Ramesh Kumar, Kali Ram were State v. Dhanpati etc. P.No. 11Of 39 : 12 :
present at the relevant point of time. Further, it was deposed by him that in the gunny bag, the accused persons had only collected few articles such as broken utensils, few clothes of the sisterinlaw(Bhabhi) of PW4, glass, Katoreis etc. However, it was further very cleverly deposed by him that since he himself had gone for making a telephonic call to the complainant about the incident hence he did not know as to who had removed the said gunny bag. The complainant was stated to have reached at the spot at around 5.20 pm. PW4 had also expressed his inability to tell as to whether the present complainant had also made a complaint against him on 15.05.1990 as well or not. As per PW4 he used to tie buffalo in the portion of Raj Singh in the night. The Mother of PW4 as well as the complainant was stated to have never resided at the house of Raj Singh at Budh Vihar. He had also expressed his inability to tell as to whether any PCR van had also reached at the spot or not. Witness had also stated that he had not accompanied Raj Singh to the police station . Quite contrary to the version of PW1 , as per this witness though there were 5060 people gathered at the spot but all of them were not local habitants of the village rather they had come from the side of accused persons . Witness himself had never informed the PCR about the occurrence despite remaining there at spot for about ten State v. Dhanpati etc. P.No. 12Of 39 : 13 :
minutes. He had also admitted during his crossexamination that he was annoyed with Usha Rani because of the fact that he was also booked by her in a case u/s 498A/406 IPC. Raj Singh was stated to be accompanying him at PHQ when his statement was recorded by the police and as per this witness he had singed his statement recorded by the IO after reading the same. He had also shown his inability to identify the articles belonging to Smt Shanti who , though initially was stated to have not visited the spot but later on, as per this witness , she had also reached at the spot. He could not tell anything about the clothes which the accused persons were wearing at the time of occurrence. He had denied the formal suggestions put to him during his crossexamination and had stated further that he was having good relations with the complainant as well as Shiv Charan who was the other brother of PW but had shown his ignorance regarding the fact of Raj Singh's deposition made at the PS Rohini regarding fight which had taken place at Shiv Charan's house in the month of February, 2000.
13. PW5 is one Kewal Krishan Chadha who was also a witness to the alleged recovery and seizure of stolen articles from the house of accused persons and had identified his signatures on inventory Ex. State v. Dhanpati etc. P.No. 13Of 39
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PW2/A at point 'C' but this witness had filed to identify all the goods produced before him by saying that same were not seized or taken into possession in his presence.
14. PW6 is one Kali Ram Dhimar S/o Khacheru who had turned completely hostile and had not at all supported the case of the prosecution . When cross examined by Ld APP for the state , he had categorically stated that it was not within his knowledge that any of his statement was ever recorded by police as police had never made any enquiry from him in this regard. It was though admitted by him that house of complainant Raj Singh was situated in his neighbourhood but he had categorically denied the occurrence of any instance on 19.11.1993 at the evening hours. Rest of the story of the prosecution as put to him was also denied by him as incorrect and had further stated that no statement Ex. PW6/A was ever made by him to anyone.
15. PW7 is one HC Rajpal Singh who was working as duty officer but in his deposition he had stated about the recording of FIR by him on 19.05.1995 after receiving of complaint Ex. PW7/A from Insp. Ved Prakash . Copy of FIR has been placed on record by the witness as Ex. State v. Dhanpati etc. P.No. 14Of 39
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PW7/B and his endorsement on complaint as Ex. PW7/C . This witness was not cross examined by the ld defence counsel despite availing an opportunity in this regard.
16. PW8 is none other than the complainant/victim in this case namely Raj Singh S/o Khacheru R/o J2/32, Sanjay Market, JJ Colony, Wazirpur, Delhi . In his statement made before the court, he had stated that his son Pawan Kumar was married to accused Usha Rani on 22.11.1989. After marriage , Usha Rani had resided with them for just about two months and thereafter on 18.02.1990 she had left the house of complainant with all her belongings. A receipt regarding taking back all of her articles was also stated to have been issued by her. However, it shall be pertinent to mention here that no such receipt had ever been produced on record either by the investigating agency or by the witnesses examined by it. Accused Usha Rani was stated to have further implicated the complainant and his family members in criminal cases u/s 406/498A IPC as well as another case u/s 324 IPC.
Complainant was also having one house at village Rithala bearing no.
234. It was also stated by him that on 19.11.1993 all the aforesaid accused persons had broken open the locks of the said house without State v. Dhanpati etc. P.No. 15Of 39 : 16 :
his consent and permission and had stolen several articles from there including cots , table , utensils and other household articles. His brother had told him about the incident after which he had reached at the spot where all the accused persons had also met him. Once he tried to calm down the accused persons , the accused persons had started abusing and beating him. His wife was also accompanying him at that moment. After which he went to police station Mangolpuri but the police had refused to take action against the accused persons as accused Usha Rani belonged to their staff. Telegrams were made by the complainant to Lt. Governor , Commissioner of Police and DCP etc. but same also could not yield any fruitful result. Thereafter , a criminal writ petition was preferred by him before Hon'ble High Court of Delhi wherein on 15.05.1995, the Hon'ble High Court of Delhi had directed police to register the FIR on the complaint of complainant which was Ex. PW8/A .
An investigation was also directed to be conducted by Crime Branch. Initially for about 4050 days, even Crime Branch officials did not carry out any effective investigation and on 12.08.1995, SI Ramesh Kumar alongwith complainant and his wife had visited the house of accused persons from where certain articles were seized vide seizure memo Ex. PW8/B bearing his signatures at point A. Before making any seizure of State v. Dhanpati etc. P.No. 16Of 39 : 17 :
the articles, IO had also given a notice to the complainant asking him to furnish the description of stolen articles which was duly replied by complainant vide reply Ex. PW8/C . Intimation regarding sealing of almirah in which the articles involved in case u/s 406/498A IPC were kept after their recovery was also sent to DCP but the said intimation was not placed by IO on record as deposed by this witness. On 15.09.1995 complainant had again given the details of the articles as nd well as receipts of the ownership to 2 IO vide letter Ex. PW8/D. An application was also moved by him for verification of the seal by Local Commissioner on 18.09.1995 but once no action was taken on the said application , telegram Ex. PW8/E was sent by him to Hon'ble Chief Justice . Another telegram sent earlier dated 19.11.1993 was placed on record as Ex. PW8/F , copy of the application addressed to Commissioner of Police was Ex. PW8/G and as per this witness, the last IO had taken out articles from almirah in connivance with accused persons and had replaced the same with other articles which were not belonging to the complainant. He had also identified the case property as Ex. P1 including one bucket, one pressure cooker, plates etc and one saree of black colour Ex.P2 was also identified by him but he had declined to identify the purple colour saree with green border stating that State v. Dhanpati etc. P.No. 17Of 39 : 18 :
the same did not belong to him.
17. In his crossexamination by ld. defence counsel, he had stated that though he had handed over the bills of the articles to the IO but he had no knowledge as to whether the same were placed by the IO on judicial record or not. The utensils were stated to have been purchased by him from his adjoining shop in Wazirpur Industrial area being run in the name of Manchanda Steels. On 22.11.1989 the duty hours of the complainant were stated to be from 10 am to 5 pm . The incident of breaking open of locks was conveyed to complainant on telephone at his residence by his brother and thereafter it took him about 12 months to reach at the spot from his office , however, he was not in a position to remember the exact time of his reaching at the spot of occurrence because he could not see his wrist watch as he was under tremendous stress and was feeling puzzled. It was also deposed by him that when he had reached at the spot , 5060 people had already gathered there including the local people from Rithala village as well as outsiders but he could not remember the names of the local villagers who were present at the spot. His brother Suresh Kumar had remained present at the spot for about ten minutes after his reaching there. But he had not told him State v. Dhanpati etc. P.No. 18Of 39 : 19 :
as to which of the accused persons had lifted what articles and by which tempo the said articles were shifted. He could not remember the date when he had disowned his son Pawan Kumar but was stated to have disowned in the year 1990. He had also not told anything to SHO Mangolpuri regarding the employment of accused Usha Rani with Delhi Police as constable nor he had ever made any complaint in writing against the then SHO Mangolpuri for his refusal to take any action on the complaint made by him against accused Usha Rani. As per this witness, apart from his brother, one Suresh S/o Chet Ram was also present at the spot but he could not say anything about the presence of Kali Ram S/o Khacheru . Further he could not say as to whether the said Kali Ram was also made a witness by him in the present case or not. It is interesting to note here that the said Kali Ram had already been examined as PW6 who had completely turned hostile and had not supported the case of prosecution. Now PW8 was trying to coverup this lacuna and filling the gaps which had emerged in the prosecution story.
As per this witness, he had not installed any iron gate at the Rithala village house rather the accused had installed the said gate. It was also admitted by him that utensils Ex. P1 collectively were State v. Dhanpati etc. P.No. 19Of 39 : 20 :
also available in his house even as on the date of his deposition . Though initially he had stated that he could not remember the date of his vacating the house at Rithala village but later on had submitted further that he had never vacated the said house and he used to visit there every week. It was under his locks & keys and his brother used to tie his buffaloes and cows in the open space outside the house and his rooms had always remain locked.
18. In his further cross examination dated 21.05.2008, he had stated that he could not remember as to whether he had reported some matter on 15.05.1990 at PS Rohini in respect of alleged trespass made by the accused Usha Rani in his village house at Rithala on the said date or not. The complainant was stated to be residing at B70, Ashok Vihar since 1990 and his ration card also bear the said address which was also admitted by him and was Ex. PW8/D1. It was further nd admitted by him that on the 2 page of ration card , name of Ajit Singh S/o Raj Singh was mentioned. However, he could not remember as to whether he had disowned his son Pawan Kumar on 25.04.1990 or not.
He had again reiterated the fact of his having possession of proof of ownership of the articles recovered from the house of the accused State v. Dhanpati etc. P.No. 20Of 39 : 21 :
persons which were also given by him to the IO and he had also claimed about the receipt issued by the IO in that regard. However, it is pertinent to mention here that no such receipt had ever been produced by him on record. He had not been able to remember as to whether any marriage had ever taken place in his family in the month of February, 1999 and had stated further that same might have taken place at the aforesaid time at the house of his brother Shiv Charan residing at Sec.3 , Avantika . However, it was categorically stated by him that his son Pawan had not got married on the said date with Renu in the year 1999.
19. Witness had not been able to remember the number of civil cases or the dates of their institutions which he had filed against the accused Usha Rani, but he had admitted it to be correct that he had filed injunction suits in the year 1990 against Usha Rani regarding the properties situated at Rithala and Ashok Vihar. Though initially he had expressed his inability to recall the fact but later on he had admitted it to be correct that he had also lodged one complaint dated 15.05.1990 against Usha Rani in respect of Rithala property that a forcible possession had been taken by the accused from the complainant in which the complainant's son Pawan Kumar was also named by him. State v. Dhanpati etc. P.No. 21Of 39
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Witness had also expressed his inability to remember the following facts :
# Date of institution of suit for possession under Specific Relief Act.
# Mentioning of names of all the accused persons in the said suit.
# Mentioning of the name of his son Pawan Kumar in the said suit.
After going through his complaint Ex. PW8/A , he had admitted that name of Pawan Kumar did not figure in the said complaint. It was also admitted by him that his complaint Ex. PW8/A did not speak about the forcible taking of possession of Rithala property from him by Usha Rani in 1990.
20. It was further deposed by him that the suit for possession filed by him under Specific Relief Act was dismissed by the court of Sh.
Rajesh Kumar Singh, the then Ld Civil Judge against which a revision petition was also preferred before Hon'ble High Court of Delhi bearing no. 1338/2002 upon which the Hon'ble High Court of Delhi had remanded back the said case which was again dismissed by Ms. Gomati State v. Dhanpati etc. P.No. 22Of 39 : 23 :
Manocha, the then Ld Civil Judge vide her judgment dated 27.03.2010. He had stated that property situated at Rithala was his ancestral property but despite a warning of the court, he had declined to answer the question put to him about his self acquired immovable properties and had stated that he was presently residing at house no. 175, Pocket18, Sec.24 , Rohini, Delhi since 2004 where accused persons had never made any attempt to commit a trespass. House no. 176 adjoining the said property was also stated to be sharing the same boundaries but it was categorically declined by him that both the properties were owned by the same person. At the time of marriage of his son Pawan Kumar, he was stated to be residing at B70, Ashok Vihar, PhaseIV, Delhi and it was also admitted by him that he was residing at only village Rithala, Ashok Vihar as well as at JII/32, Sanajy Market , JJ colony, Wazirpur, Delhi. He had further stated that he could not remember as to whether he had mentioned about the fact of forcible possession taken from him by Usha Rani in suit bearing no. 373/02 or in suit no. 272/96 filed by him against the accused persons. Witness had categorically stated that he did not own any property in Rama Vihar. He had also failed to remember about the filing of complaint u/s 201/438/380/411/452/34 IPC against the accused persons and one Hem Lata before Ld. CMM, State v. Dhanpati etc. P.No. 23Of 39 : 24 :
however, he had admitted his signatures on Ex. PW8/D1 at point A and after going through the said document, he had admitted that he had not mentioned therein the fact regarding the forcible possession taken by Usha Rani from him on 15.05.1990. He had also failed to remember the fact regarding time of arrival of police on 30.11.1991 when accused Samay Singh had allegedly trespassed into his house and had started beating him and his wife. As per this witness , on the date of occurrence when he had visited the spot at around 5.20 pm, the PCR and local police was not found present there and he himself had not made any call to police at 100 number and had expressed his inability to tell as to whether his brother Suresh had informed the police or not but admitted that his brother had informed him about the incident. The formal suggestions put to the witness were categorically denied by him as incorrect.
21. PW9 is one Raghuwar Dayal Sharma S/o Har Sarup Sharma R/o D11/461, Sec.7, Rohini who had deposed that on 12.08.1995 complainant Raj Singh alongwith his wife and two CBI officials had reached at the house of accused persons that is D11/458 Sec7 Rohni.
Smt Dhanpati one of the accused persons had come to his house and State v. Dhanpati etc. P.No. 24Of 39 : 25 :
told him that some persons had come to her house and were taking away the articles of Usha. Thereafter , those persons had tied all those articles and left the house of the accused persons. The seizure memo Ex. PW2/B was stated to be carrying his signatures at point B.
22. PW10 is Insp Ramesh Kumar who was posted as SHO Sarojini Nagar at the relevant point of time. In his examination before the court he had deposed that on 04.08.1995 he was posted as SI at SIT branch of Crime Branch when the investigation of the present case was handed over to him.
23. On 12.08.1995 he had visited the house of the accused persons alongwith complainant and one independent witness and household articles allegedly stolen by the accused persons were recovered by them which were seized vide memo Ex. PW8/B bearing his signatures at point X. All those items were thereafter sealed with the seal of 'RK' and the statements u/s 161 Cr.P.C including the complainant, his wife and the independent witness were recorded by him on 04.09.1995 .
Thereafter investigation of the present case was assigned to some other official as this PW had gone for a training course. He had also identified State v. Dhanpati etc. P.No. 25Of 39 : 26 :
utensils as Ex. P1, sarees as Ex.P2 and PX respectively and one wooden table as Ex. P3.
24. During his crossexamination by ld defence counsel, he had failed to remember the names or the number of witnesses whose statements were recorded by the previous IO before assignment of investigation to him. After going through the police file and refreshing his memory, he had deposed that statement of Pawan Kumar and Dinesh Kumar were recorded on 03.07.1995 whereas he himself had recorded the statements of Shanti Devi , complainant Raj Singh as well as Raghuwar Prasad . Witness was also stated to have issued notice dated 11.08.1995 to the complainant for the purpose of identification and receipts /vouchers of stolen articles after which the details were provided to him by the wife of the complainant and the particulars about the articles were mentioned in complaint Ex. PW8/A and the list had followed the said complaint. It was stated to have been supplied to PW on 12.08.1995. The spot of the incident was never visited by him as long as the investigation of the case had remained with him. None of the accused persons was ever interrogated by him as well. Almirah was stated to have been sealed which was subsequently desealed as well State v. Dhanpati etc. P.No. 26Of 39 : 27 :
and as per this witness , complainant had never provided any specific identification mark appearing on any one of the recovered articles which was stated to have been stolen by the accused persons from his house.
25. PW11 is one Insp. O.P. Arora . He deposed that in the month of September, 1995, he was posted at SIT section, Crime Branch as Inspector. After taking over the investigation of the present case , he had gone to H.No. D11/458, Sec.7, Rohini, Delhi and desealed one steel almirah and made an inventory of the articles found in the almirah .
The desealing process was done in the presence of independent witnesses namely K.K. Chadha , Madan Mohan and P.K. Singh and accused Usha Rani and Dhanpati were also present there at the same time. Items no. 1 to 38 , as mentioned in inventory were released to accused Usha Rani. Item no. 39 was sealed with the seal of BMT and searchcumrecovery memo was made in this regard vide Ex. PW11/A . Anticipatory bail was granted to all the four accused persons . After completing the investigation, the chargesheet was filed in the court by this witness and he had also identified the case property i.e. saree which is Ex. PX. He was also crossexamined by ld. Defence counsel, during which he had deposed about the statements of the sixteen witnesses State v. Dhanpati etc. P.No. 27Of 39 : 28 :
recorded by him. Some of which were called at police station and some statements were recorded by him at their respective homes but all of them were not cited as prosecution witnesses in the present case. As per this witness, one Samay Ram was on full day duty in DTC on 23.11.1995 but he had taken leave in the afternoon and the relevant documents were seized by him in this regard from Depot Manager, Rohini. However, no such document was ever placed on judicial record by him. He had denied the suggestion that total 21 witnesses were examined by him in the present case but he had admitted it to be correct that out of total witnesses examined by him , 15 witnesses had told him that accused Usha Rani was residing at the disputed house since15.05.1990. He had not been able to recall as to whether he had collected any complaint dated 15.05.1990 lodged by complainant Raj Singh or not. He had also seized only one saree and had admitted that the description of that saree as well as receipt of its purchase was neither mentioned nor handed over to him by the complainant or his wife Smt Shanti. It was further admitted by him that his investigation had begun from desealing of almirah lying in the house of Dhanpati and all formal suggestions put to him were denied by him as incorrect. State v. Dhanpati etc. P.No. 28Of 39
: 29 :
26. PW12 is retired Insp. Ved Prabhakar . He deposed that on 19.05.1995 , he was posted as Inspector in SIT Crime Branch and FIR was registered in this case on his directions on the complaint Ex.
PW8/A in compliance of the orders of Hon'ble Court of Delhi which was MarK12X. Endorsement was made on the complaint vide Ex. PW12/A and FIR was lodged which was already Ex. PW7/B . On the same day, complainant was asked to give supplementary statement but he had refused to give the same. During investigation, this witness had recorded statements of witnesses namely Pawan Kumar, Dinesh Kumar, Shiv Charan, Suresh and Raj Singh etc. Site plan was prepared vide Ex.PW12/B, documents were seized vide Ex. PW12/C . The documents including copies of electricity bill in proof of ownership of house were Mark 12XA to 12XE. Thereafter the witness got transferred.
During his crossexamination, he had stated that Ex. PW8/A was the same complaint which was handed over by complainant Raj Singh to ACP SIT Crime Branch and which was further handed over to him by ACP and after going through the said complaint he had stated that same was not bearing the signatures and endorsement of the then ACP SIT regarding its being forwarded to PW12 for further necessary action. Though he was stated to have made enquiries from the villagers State v. Dhanpati etc. P.No. 29Of 39 : 30 :
of village Rithala but he himself had not recorded statement of those villagers because they were not willing to be cited as witnesses in the present case.
27. PW13 is one Smt Shanti Devi wife of Raj Singh who had also deposed on similar lines as deposed earlier by her husband PW8 Raj Singh and as per this witness , the following articles were stolen by the accused persons from her house no. 234, Rithala.
" one Sandook(trunk), two cots, one table, two chairs, one blanket, six sarees , one parat, one stove, six plates (thalies), two buckets, six plates without curved border, six small plates, six larger plates, six steel glasses, six saucers, one pressure cooker make Press Cook."
However, when the said articles Ex. P1, P2 & P3 were produced before this witness , she had refused to identify the same as belonging to her except one steel glass and it is interesting to note that utensils exhibited collectively as Ex. P1 were the same which were already identified by her husband PW8 Raj Singh as the same belonging to him but the same articles had not been identified by her as her own belongings and she had declined the suggestion that due to State v. Dhanpati etc. P.No. 30Of 39 : 31 :
passage of time she was not able to identify her own belongings.
28. During her crossexamination by ld counsel for accused persons, PW13 though had stated that she had told the police about the breaking open of locks of her house no. 234 situated at village Rithala by accused persons and on receiving this intimation through her brother inlaw Suresh on telephone she had visited the spot alongwith her husband where she was given beatings and abuses by accused persons and about the refusal on the part of officials of PS Mangolpuri to register FIR on their complaint. When she was confronted with her statement Ex.
PW13/DA , none of those aforesaid facts was found mentioned there in the said statement. It was also deposed by her that since she or her husband had not sustained any injury due to the beatings given to them by the accused persons, hence, they did not get themselves medically examined nor they had taken any medicines or pain killer. She had admitted the factum of marriage of her son Pawan with accused Usha Rani but she was not aware about the current whereabouts of her son Pawan nor she was aware about any divorce between Pawan and Usha . It was admitted by her that in the year 2007, she had admitted in one of her statements made before the court that Usha was wife of her State v. Dhanpati etc. P.No. 31Of 39 : 32 :
son Pawan and contrary to the version of her husband PW8 it had been deposed by PW13 that when she had arrived at the spot of occurrence at 5.305.45 pm police had already reached there whereas PW8 in his crossexamination had stated that neither PCR nor local police was found present at the spot when he had reached there.
29. She had denied the suggestion as incorrect that a compromise was arrived between the parties in the presence of the police on the said date. She was unable to tell as to whether utensils allegedly belonging to her were also bearing her name or name of her husband engraved on them or not. It was admitted by her that her son Pawan got married in the year 1989 when she was residing at B70, PhaseIV, Ashok Vihar and her husband was employed at Delhi University and used to commute from Ashok Vihar to his office. She had no knowledge as to when electricity of her Rithala house was got disconnected. It was also admitted by her that even the utensils used by her at her home were not carrying any engravement of her name on the same. It was also admitted by her that she had not seen any of the accused persons taking away her articles on the date of incident and she was only told about this fact by her brother in law Suresh. She had also expressed her inability State v. Dhanpati etc. P.No. 32Of 39 : 33 :
to tell as to whether the articles belonging to Usha Rani were lying at house no. 234 Rithala on 15.05.1990 when her son was also residing there or not. Quite contrary to the version of her husband who had categorically denied having owned any property in Rama Vihar, PW13 had admitted it to be correct that she was having one house at Rama Vihar which was later on sold by her and another property was purchased in Rohini from its sale proceeds and it was also categorically deposed by her that she was a home maker and had no independent source of income. She also did not remember the amount of payment made towards purchase price of house at Rama Vihar. This deposition of PW 13 clearly indicates that the property in Rama Vihar was purchased by her husband in her name which was later on sold by him and sale proceeds were utilized for purchase of other property at Rohini.
30. Further quite contrary to the version of her husband Raj Singh PW8, PW13 had not been able to remember as to who was present at the spot on the date of incident except the accused persons and as per her version, only her brother in law from her family was present at that particular point of time. She had no acquaintance or familiarity with Suresh Chand S/o Chet Ram and had only heard his name being a co State v. Dhanpati etc. P.No. 33Of 39 : 34 :
villager. She had also reiterated the fact that her husband had filed all the proofs of ownership of articles and an inventory of the same was also prepared by the IO but she had failed to furnish the said inventory or receipt on the record . She had categorically stated that none of the utensils or sarees produced in the court was belonging to her.
31. PW14 is one P.K. Singh S/o Sh Yog Raj who was stated to be an agriculturist by profession and had turned completely hostile and had never supported the case of prosecution by stating that he had never joined any investigation in the present case or in any other case.
32. The witness was crossexamined by Ld APP for the state and his entire statement Ex. PW14/A from point A to A 1 was read over to him to which he had replied that he had never made any such statement to anyone . Rest of the suggestions put to him were also denied by him as incorrect .
33. Thereafter PE was closed.
34. SA was recorded in which entire incriminating evidence appearing on record was put to the accused persons to which they had denied as false and incorrect and had stated that they were innocent and falsely State v. Dhanpati etc. P.No. 34Of 39 : 35 :
implicated in the present case by the complainant in order to take revenge of complainant's implication in the cases u/s 406/498A IPC as well as u/s 324 IPC lodged against him at the behest of accused Usha Rani. Accused persons had also preferred to lead evidence in their defence.
35. DW1 Sh. Udai Raj Singh S/o Late Sh Swaraj Singh was examined by accused persons in their defence who had deposed that Usha Rani was married to Pawan son of the complainant on 22.11.1989 and after marriage Usha Rani had started residing at her matrimonial house at 234, village Rithala alongwith her husband Pawan and he had categorically declined happening of any such incident on 23.11.1993 at the aforesaid place.
During his cross examination by Ld APP for the state , he had declined the suggestion that Usha Rani had resided at the house of Raj Singh only for about two months and had left the same on 18.02.1990 alongwith all her belongings after the execution of receipts to that effect as well. Witness had expressed his inability to tell about filing of cases by Usha Rani against Raj Singh and his family under different sections of IPC and it was admitted by him that Raj Singh was owner of State v. Dhanpati etc. P.No. 35Of 39 : 36 :
the property; one at Sanjay Market , another at Rithala but had denied the suggestion regarding the incident involving breaking open of the locks by the accused persons without permission and consent of the complainant and stealing of various articles . Thereafter DE was also closed.
36. I have heard ld APP for the state as well as gone through the written submissions filed by accused persons .
37. After appreciating the entire material available on record, I have no hesitation in holding that prosecution has miserably failed to prove the guilt of the accused persons beyond reasonable doubt warranting their conviction in the present matter.
38. PW1 during his cross examination had categorically stated that he had not seen anybody either breaking open the locks or taking away articles , hence his testimony is of no use to the prosecution. Similarly, PW2 is a formal witness. PW3 Jeet Ram though claiming himself to be working in the DDA as a regular employee had not been able to reasonably prove and justify his presence at the spot at the given time State v. Dhanpati etc. P.No. 36Of 39 : 37 :
and further more as per this witness as well, he had only passed through the spot after occurrence and not during the occurrence . Hence, even he was also not an eye witness to the incident who could have been considered as a material witness in proving the case of the prosecution against the accused persons beyond any reasonable doubt. He also appeared to be an interested witness who had come to depose without even receiving the summons at the behest of younger brother of complainant namely Suresh Kumar and it appears that in order to maintain harmony in his relations with the complainant he had agreed to depose in this case without himself being even cited as an eye witness to the incident. So far as PW4 is concerned, he is also an interested witness who had admitted in his cross examination that Raj Singh complainant in the present case had never resided at the aforesaid address for the last about 2030 years and despite being the younger brother of the complainant he had wrongly cited the premises number as 264 instead of 234 and his personal agony and vengeance against the accused persons could be easily understood from the fact that he was also made a party by Usha Rani in litigation u/s 498A /406 IPC alongwith complainant and his other family members. State v. Dhanpati etc. P.No. 37Of 39
: 38 :
39. PW5 is again a formal witness. PW6 had already turned hostile . So far as present case is concerned, it is only based on the testimony of PW8 but as per his own admission , he himself had not been an eye witness to the occurrence rather whatever he had deposed was based on the facts narrated to him by his brother . Hence his deposition being based on hearsay, itself is inadmissible in evidence and cannot be relied upon at all. Furthermore, complainant had miserably failed to place on record even a single document establishing his ownership in respect of the articles allegedly so recovered at their instance from the house of accused persons. It is a common feature that this court is also not even precluded from taking a judicial notice thereof that utensils used in houses are generally are of same and similar metal, size and quality and in the absence of any specific mark of identification being engraved upon them, it is not possible for a person to establish any relationship qua ownership with the said article. Moreover there are very material and stark contradictions in the versions of PW 8 and PW 13 as well who are not only husband and wife in their relationship interse but had also been cited as witnesses of the same fact. These contradictions appearing in their respective versions cannot be brushed aside in a lighter manner and are essentially to be State v. Dhanpati etc. P.No. 38Of 39 : 39 :
considered as fatal for the case of the prosecution.
40. In view of the above discussion , the prosecution story has miserably failed to prove its allegations against the accused persons beyond any reasonable doubt , hence accused persons are hereby acquitted from the charges framed against them . Bail bond/surety bonds stand discharged. Endorsement if any on documents, be cancelled and returned to sureties against acknowledgment.
File be consigned to record room after completion of other necessary formalities in this regard.
Announced in the open court on 15 March, 2013.
th (Lokesh Kumar Sharma) Chief Metropolitan Magistrate North/Rohini/ Delhi State v. Dhanpati etc. P.No. 39Of 39