Delhi District Court
CR Cases/10298/2016 on 26 June, 2023
IN THE COURT OF MS. SALONI SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
CR No. 10298/2016
CNR No. DLET02-005072-2015
FIR No. 41/2013
Under Section 509/506/34 of IPC
Police Station Preet Vihar
State
v.
1.Sh. Sudesh Kumar, Aged 45 years S/o, Sh. Jaipal Singh, R/o, A-12, Gali No. 13, Mandawali Uche Per, Delhi.
2. Ashik, Aged 46 years S/o, Sh. Mohd. Rashid, R/o, A-90A, Gali No. 13, Mandawali Uche Per, Delhi.
3. Ifran, Aged 44 years S/o, Sh. Mohd. Idrish R/o, D-250, Gali No. 1/53, West Vinod Nagar, Delhi.
4. Vikash Negi, Aged 40 years S/o, Sh. B.S. Negi, R/o, F-27, Mandawali Uche Per, Delhi. ...Accused Persons Date of Institution : 06.01.2015 Date of Reserving order : 24.06.2023 Date of Judgment : 26.06.2023 Final Order : Acquittal CR no. 10298/2016 1 SALONI Digitally signed by SALONI SINGH Date: 2023.06.26 SINGH 16:33:37 +0530 Judgment: -
All the accused persons were sent to stand trial for commission of offences punishable under Sections 509/506/34 of the Indian Penal Code (for short, "IPC"), based on the First Information Report (FIR) bearing no. 41 dated 29.01.2013, registered at Police Station (P.S.) Preet Vihar, Delhi.
1. The chargesheet was filed in court on 06.01.2015 and on taking cognizance, the accused persons were summoned and copy of the charge sheet was supplied to the accused persons. Opportunity was granted to the accused to make submissions on point of notice and based on a prima facie case, vide order dated 06.02.2017, notice under Section 509 read with Section 34 of IPC was framed against the accused persons, the contents of which were read over and explained to the accused persons, to which they pleaded not guilty and claimed trial.
2. To substantiate their case in trial, the prosecution has examined the complainant/ Woman Head Constable (W/HC) Neema as PW-1, and police officials including Assistant Sub-Inspector (ASI) Virender as PW-2, and Inspector Murtaza as PW-3. The said prosecution witnesses have relied upon and placed on record the present FIR as Exhibit P-1, the Daily Diary (DD) entry no. 24A as Exhibit P-2, statement of PW-1 as Exhibit PW-1/A, arrest memos of accused persons as Exhibit PW-1/B, Exhibit PW-1/C, Exhibit PW-1/D, and Exhibit PW-1/E, personal search of accused persons as Exhibit PW-1/F, Exhibit PW-1/G, Exhibit PW-1/H, and Exhibit PW-1/I, note written by PW-1 on plain paper during her examination-in-chief as Exhibit P-1, rukka as Exhibit PW-3/A, and site plan as Exhibit PW-3/B. The prosecution witnesses were cross-examined on behalf of the accused Digitally signed CR no. 10298/2016 SALONI by SALONI SINGH 2 SINGH Date:
2023.06.26 16:34:02 +0530 persons.
3. On completion of prosecution evidence, the accused was examined under Section 313 read with Section 281 of Code of Criminal Procedure, 1973 (for short "CrPC"), wherein all incriminating evidence/material relied upon by the prosecution was put to the accused persons, which were denied by them stating that they were drunk that night and had been stopped by the police and the police had demanded Rs.5,000/- (Rupees Five Thousand Only) in cash from them and as they had refused, the police had taken them to P.S. and falsely implicated them in this case. Opportunity was then given to the accused to lead evidence, which was not availed by them and the matter was listed for final arguments.
4. Final Arguments: - Final arguments were advanced on behalf of the State and the accused persons. Mr. Shreyas Pragyan Ojha, Learned Assistant Public Prosecutor (APP) for the State submitted that the statement of PW-1 is at par with her complaint and she has supported the prosecution version of how the accused persons had made the abusive comments/gestures at her. He argued that PW-2 has also supported the testimony of PW-1 and the prosecution has proved their case against all the accused persons. Mr. Sachin Singh, Learned Advocate for the accused Sudesh, Irfan and Vikas and Mr. Ajay Biltoria, Learned Advocate for the accused Ashik submitted on the same lines that the I.O./PW-3 did not examine any public person and no inquiry was made regarding presence of any CCTV cameras in or around the place of incident.
They further argued that the medical examination of the accused persons was not conducted deliberately as they had been beaten by the police when they refused to meet the demand of money made by the police at the picket and at that time the accused persons were under the influence of alcohol. They CR no. 10298/2016 Digitally signed 3 by SALONI SALONI SINGH SINGH Date:
2023.06.26 16:34:19 +0530 further submitted that PW-1 despite being an educated person had not given her own complaint and has failed to disclose several important details regarding the personal search and arrest of the accused persons and regarding the PCR. They also argued that both PW-1 and PW-2 have stated that Ct. Vipin/driver was with them, however, the prosecution has not made him a witness. Further, they submitted that Ct. Sudhir had accompanied the I.O./ PW-3, however, he has also not been cited as a witness. They further submitted that PW-1 was unable to disclose the place from where the Xylo car had come and the place where the Xylo car was going and neither PW-1 nor PW-2 have produced any document to show that they were completing their log book at the place of incident. Learned Advocates for the accused persons submitted that the accused persons were falsely implicated in this case and they be acquitted.
5. In rebuttal, Learned APP for the State submitted that contentions raised by the accused persons are not material and that PW-1 has shown that the accused persons had uttered abusive words. He also argued that there was no requirement to examine Ct. Vipin as he was inside the PCR when the alleged incident had occurred and PW-1, being a woman, would not have made such allegations if such incident would not have occurred.
6. Issue: - Whether the accused persons, in furtherance of their common intention, to insult the modesty of the complainant uttered word/abuses and made gestures such that the words be heard by her, and the gestures be seen by her?
7. Brief Facts: - The case of the prosecution, as detailed in the in the statement of PW-1, Exhibit PW-1/A, is that PW-1 was on duty in PCR Romeo 40 from CR no. 10298/2016 Digitally signed by SALONI 4 SALONI SINGH SINGH Date:
2023.06.26 16:34:33 +0530 08:00 pm to 08:00 am and at around 09.40 pm, the PCR was at Laxmi Nagar near the Fire Station. PW-1 was standing outside the PCR and the IC Incharge HC Virender/PW-2 was making entries in the logbook, when one car Mahindra Xylo, bearing registration no. DL - 7CM - 0138, came in which there were four passengers. The car passed by PW-1 during which all the four passengers uttered vulgar abuses at PW-1. PW-1 tried to stop them. All four passengers including the driver, while looking at PW-1, made vulgar gestures at her and drove the car away. PW-1 with PW-2 followed the car and the four men were apprehended at Bobby Tikki Wala. PW-2 called the police at 100 number. The persons, who misbehaved with PW-1, are Sudesh, Vikash Negi, Irfan and Ashik.
8. Analysis of Evidence/Reasons for findings: - The arguments advanced have been considered and the court file including the evidence adduced has been thoroughly perused. PW-1 in her examination-in-chief has stated that on 29.01.2013, she was posted in PCR East zone as a constable and on that day, she was on duty in PCR van Romeo 40 with IC Incharge HC Virender/PW-2 and the driver constable. PW-1 has stated that the PCR van was parked in front of the fire station behind V3S Mall, and she was standing outside the PCR van and PW-2 was completing his logbook, when at around 09:40pm, she saw a car of make Mahindra Xylo, white in colour, bearing no. DL- 7CM-0138, with four occupants in the car. PW-1 has further stated that three out of the four occupants in the car were peeping out of the window of the car and when the car came near PW-1, all four occupants passed lewd comments by uttering obscene words and when PW-1 signaled them to stop the car, the occupants made obscene gestures by flashing their hands in the air. PW-1 has identified all the four accused persons before the Court as the culprits. During her examination-in-chief, PW-1 has written on Exhibit P1 CR no. 10298/2016 Digitally signed 5 by SALONI SALONI SINGH SINGH Date:
2023.06.26 16:34:44 +0530 the exact obscene words/comments that had been made by the accused persons. In Exhibit P-1, it is written "Bahan ki L*** mauj le rahee sal** mauj rahen ho". PW-1 has further alleged that the accused persons had challenged her and fled from there. PW-1 has further stated that their PCR van started chasing the car and they also informed another PCR van Romeo 39 on their way. Further, as per PW-1, they eventually overpowered the accused persons near Bobby Tikki Wala shop and PW-2 called the police at 100 number and the accused persons had disclosed their names.
9. PW-1 seems to have reiterated in almost similar lines the entire alleged incident in her examination-in-chief as has been given in her statement, Exhibit PW-1/A. The allegations made by PW-1 of all the accused persons having passed the 'same' obscene comment at her and of all the accused having made vulgar gestures by flashing their hands are vague. PW-1 has not specified the location of each of the accused person in the car and the driver of the car. PW-1 has not specified and detailed the vulgar hand gestures. The manner the entire incident has unfolded itself seems to be inconsistent and has several loopholes. PW-1 has stated in her examination-in-chief that as the car came closer to her, it was in slow speed and has alleged that then all the four occupants in the car had passed the lewd/obscene comments at her.
PW-1 has identified all the accused persons before the Court by their names. PW-1 in her cross-examination has stated that the car was at a speed of 10km per hour. If the car was at such a slow speed, it is likely that PW-1 would have clearly seen all the accused persons and who had passed the alleged lewd comment at her. However, in her cross-examination, PW-1 has stated that she could not recollect who was driving the car and she was unable to disclose the accused who had made the alleged obscene remark. Further, as the car would have passed by her in such slow speed, PW-1 possibly would CR no. 10298/2016 Digitally signed 6 by SALONI SALONI SINGH SINGH Date:
2023.06.26 16:34:52 +0530 have seen only one side of the car. She has stated in her examination-in-chief that three out of the four occupants had lowered/opened the window of the car. PW-1 has not explained how all the occupants in the car had opened one window of the car. Further, if one side of the car had been towards her side, it is unlikely that she had seen the driver of the car or heard the comment (if any) made by the driver of the car.
10.PW-1 is not the only eyewitness to the alleged incident. PW-2 has also stated in his examination-in-chief that he had witnessed the alleged incident. PW-2 in his examination-in-chief has stated that on that day he was posted in PCR East zone and was on duty on 29.01.2013 with PW-1 and Ct. Vipin and at around 09:30pm, their PCR van was parked at the fire station Laxmi Nagar near V3S mall. PW-2 has further stated that he was sitting in the van and was filling his logbook and PW-1 was standing outside the PCR van. PW-2 has stated that at around 09:40pm, one Xylo car passed their PCR van in slow speed and there were four occupants in the car including the driver and one of the occupants passed lewd comments using foul language at PW-1, which were heard by PW-2, that "ki ye maje le rahen hain". PW-2 is stated to have signaled the car to stop, however, they did not do so and immediately PW-2 called police at 100 number and one another PCR van Romeo 39, which was standing near Bobby Tikki Wala shop, chased the Xylo car and stopped it. Further, as per PW-2, by that time he with Ct. Vipin and PW-1 reached there in their PCR van.
11.As per PW-2, he had seen only one of the occupants of the car make a pass at PW-1. Further, the alleged pass/comment that PW-2 seems to have heard is different from the alleged comment/language mentioned in Exhibit P-1. The prosecution has not sought any clarification from PW-2 as to whether the CR no. 10298/2016 Digitally signed by SALONI 7 SALONI SINGH SINGH Date:
2023.06.26 16:35:19 +0530 comment, " "ki ye maje le rahen hain" was the entire comment PW-2 had heard that day. How is it possible that PW-1 and PW-2, who were both present at the spot, had seen and heard different number of the occupants making the pass and had heard a different comments/remarks made by the occupant(s) of the car. This creates a doubt on the presence of PW-1 and/or PW-2 at the spot. PW-1 and PW-2 were not the only persons at the spot at the time of the alleged incident.
12.PW-1 and PW-2 have both stated they were on duty in the PCR van with a constable. PW-1 has not named that constable in her examination-in-chief but has named the constable in her cross-examination as Ct. Vipin. PW-2 has stated in his examination-in-chief that he, PW-1, and Ct. Vipin were on duty that day in the PCR van. Both PW-1 and PW-2 are silent in their examination-in-chief on the location of this constable at the time of the alleged incident. PW-2 in his cross-examination has stated that Ct. Vipin was not in the PCR van at the time of the alleged incident as he had gone to the washroom at the fire brigade building. The I.O./PW-3 has not disclosed in his examination-in-chief the names or details of the PCR police officials, who were in the PCR van at the time he had met them on the way. Further, PW-3 is stated to have recorded the statement of PW-1 and PW-3. There is no mention by PW-3 in his examination-in-chief of having recorded the statement of any other PCR van police official. In his cross-examination, PW-3 has stated that at the time of the alleged incident, only two persons were in the PCR van and has further stated that three persons had been deployed in the PCR van on that day. PW-3 has also stated in his cross- examination that the third person was not present at the time of the alleged incident, and he could not recollect the name of the said third person. This clearly indicates that the I.O. had not conducted any enquiry from the third Digitally signed CR no. 10298/2016 by SALONI SALONI SINGH 8 SINGH Date:
2023.06.26 16:35:31 +0530 person, who seems was on duty with PW-1 and PW-2 in the PCR van Romeo
40. It is important to mention here that the prosecution has not placed on record any document to show that PW-1, PW-2, and Ct. Vipin were deployed in posted in PCR East zone and were on duty that day on the PCR van Romeo 40.
13.The accused persons have not disputed that they had been stopped by the police near/at Bobby Tikki Wala shop on the day of the alleged incident, however, the defence of the accused is that they were drunk, and police had demanded bribe from them at the barricade at Bobby Tikki Wala shop and when they had refused, they were falsely implicated in this case. Therefore, it is crucial to see how the accused persons in their car had been apprehended by the police near/at Bobby Tikki Wala shop. PW-1 in her examination-in- chief has stated for the first time that while their PCR van had chased the car, they had informed another PCR van Romeo 39 on their way. There is no mention of another PCR van Romeo 39 in the statement Exhibit PW-1/A. PW-1 has further stated in her examination-in-chief that 'we' had finally overpowered the accused persons near/at Bobby Tikki Wala shop and PW-2 had called at 100 number and then local police had arrived at the spot and the accused were taken to the P.S. In her cross-examination, she has stated that the PCR staff had apprehended the persons and later they had been handed over to the I.O. Further, PW-1 has stated that after they had apprehended the accused persons, the I.O. had met them on the way.
14.PW-2 has stated in his examination-in-chief that after the car had fled from there, he had immediately called at 100 number and another PCR van Romeo 39, which was already parked near Bobby Tikki Wala shop, had chased the car, and stopped it. Further, as per PW-2, in the meanwhile their CR no. 10298/2016 Digitally signed 9 by SALONI SALONI SINGH SINGH Date:
2023.06.26 16:35:48 +0530 PCR van had also reached there and after some time the I.O. had also reached the spot. PW-2 in his cross-examination has stated that he had reached the place where the accused persons had been apprehended at about 10:15pm. This indicates that the accused persons had not been stopped or apprehended by the PCR van Romeo 40 but may have been apprehended by another PCR van.
15.PW-3 in his examination-in-chief has stated that he had met the PCR van on the way in which the PCR officials had apprehended all the accused persons and were bringing them to the P.S. It is not the case of PW-3 in his examination-in-chief that he had gone to the place where the accused persons had been apprehended or he had gone to the place where the alleged incident had taken place. PW-3 has also not disclosed the names of the PCR officials, who were in the PCR van that he had met on the way. PW-3 in his cross-examination has stated that he had left for the spot in his personal car with one Ct. Sudhir, however, PW-3 has admittedly not made Ct. Sudhir a witness in the present case. Further, PW-3 in his cross-examination has stated that he had met the PCR van at the Preet Vihar red light and that it is PCR van Romeo 40 that had brought the accused persons to the P.S. As already mentioned above, there is no mention by PW-3 in his examination about any other/second PCR van that he had met on the way or otherwise. In his cross-examination, PW-3 has stated for the first time that there were two PCR vans Romeo 40 and Romeo 39 and that both the said PCR vans were involved in apprehending the accused persons.
16.What appears from the evidence of PW-1 and PW-2 is that the accused persons had been apprehended by another PCR van Romeo 39 and their PCR van had reached there subsequently. PW-3 has stated vaguely that both the Digitally signed CR no. 10298/2016 by SALONI 10 SALONI SINGH SINGH Date:
2023.06.26 16:35:57 +0530 PCR vans were involved in apprehending and stopping the accused persons. Admittedly, PW-3 has not cited any of the staff that were deployed in Romeo 39 as a witness in this case. PW-3 in his cross-examination was unable to disclose the registration number of the PCR van Romeo 39 or the names of the persons, who had been deployed in the said PCR van Romeo 39. This creates a doubt on the manner and by whom the accused persons had been apprehended.
17.It is next to be examined where the accused persons had been arrested and how the investigation proceeded further in the case. PW-1 has stated that local police arrived at the 'spot' and the accused were taken to the P.S. and her statement was recorded and after registration of FIR, the accused persons were arrested, and their personal search had been conducted. The spot has not been explained by PW-1, however, as per the sequence of the incident narrated by her, it seems to be the place where the accused persons had been arrested. PW-2 has stated that after local police arrived at the 'spot', on enquiry, the accused had disclosed their names and after which the accused persons were arrested, and their personal search was conducted and the I.O. had recorded statement of PW-1 and had got FIR registered. PW-2 has not stated in his examination-in-chief that after the local police had arrived at the spot, the accused persons had been taken to the P.S. PW-3 has stated that he had met the PCR van on the way and then at the P.S., he had recorded the statement of PW-1 and got FIR registered. PW-3 has further stated that then he prepared the site plan at the instance of the PW-1 and the accused persons were arrested and their personal search was conducted, and they were granted bail, as the offences involved were bailable in nature. It is not the case of PW-3 that he with PW-1 had visited the place of incident or the place the accused were apprehended. PW-3 in his cross-examination has stated that Digitally signed CR no. 10298/2016 by SALONI SALONI SINGH 11 SINGH Date:
2023.06.26 16:36:05 +0530 he had gone to the place of incident at around 11pm in his personal car and PW-1 had gone with him and when he had reached the spot, the public persons were on the road. Further he has stated that he was at the spot for only two to three minutes during which time, he had prepared the site plan and had made enquiry from the public persons and left the spot and reached the P.S at 11:10pm. Further, as per PW-3, when he returned to the P.S., all the accused persons and staff of PCR Romeo 40 were at the PS. It is important to mention here that PW-1 has not mentioned in her examination in chief that she had gone with the I.O. to the spot. Further, PW-1 was unable to disclose if she had signed on the site plan or not. From the testimony of PW-1 and PW-3, the place of arrest of the accused persons is not clear. There is even overwriting in the arrest memos of the accused persons, Exhibit PW-1/B to Exhibit PW-1/C, in the column regarding the place of arrest. This creates a doubt on the actual place of arrest of the accused persons.
18.PW-1 has stated in her cross-examination that their PCR van was patrolling at the time of the alleged incident and has admitted that the place in front of the fire station was not the place the PCR van was usually parked. PW-2 has also stated that the place of the alleged incident was not usually the point of their PCR van. PW-2 has clarified stating that they had stopped the PCR van at the place after attending a call. PW-2 was unable to disclose details of the call that had been attended by them before parking the PCR can at that place. The inconsistent statements of PW-1 and PW-2 of why their PCR van was parked at that place at that time creates a doubt on whether the PCR van Romeo 40 was on duty on that day or not. It is again important to mention here that the prosecution has also not placed on record any document to show the duty hours and the place of stationing of the PCR van Romeo 40 on the day of the alleged incident.
CR no. 10298/2016 Digitally signed
by SALONI
12
SALONI SINGH
SINGH Date:
2023.06.26
16:36:14 +0530
19.Finding: - The above noted discrepancies in the statements of all the police witnesses are material, which makes their testimonies unreliable. The prosecution has failed to prove the occurrence of the alleged incident. From the above analysis, the Court is of the view that the prosecution has failed to discharge the burden on them to prove the case against the accused persons beyond all reasonable doubt. Accordingly, all the four accused persons stand acquitted of the offence under Section 509 of IPC.
Pronounced in Open Court Today on Twenty Sixth day of June of the year Two Thousand and Twenty-Three. SALONI Digitally signed by SALONI SINGH SINGH Date:
2023.06.26 16:36:23 +0530 (SALONI SINGH) ACMM/East, Karkardooma Courts, Delhi.CR no. 10298/2016 13