Delhi District Court
State vs Mahavir Etc. on 22 April, 2022
IN THE COURT OF SH. VAIBHAV CHAURASIA:
METROPOLITAN MAGISTRATE-04: NORTHWEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 190/2009
PS Shalimar Bagh
State Vs Mahavir etc.
Date of Institution : 20.09.2011
Date of Judgment : 22.04.2022
JUDGMENT
a) Serial Number of the case: : 532130/2016
b) Date of commission of offence : 02.07.2009
c) Name of the complainant: : Smt. Dayawati
W/o Sh. Shiv Prakash,
R/o: U&V107D, Shalimar Bagh, Delhi.
d) Name of Accused persons, :1. Mahavir S/o Sh. Arjun Singh, their parentage & residence R/o: E199, Krishan Vihar, Delhi.
2. Kamal S/o Late Sh. Basant Lal, R/o: BH576C, Shalimar Bagh, Delhi.
3. Naval Singh S/o Sh. Chander Bhan R/o: H.No. 237, Village and Post Office Karala, Delhi.
4. Shamsher S/o Late Sh. Ishwar Singh, R/o: H.No. 4321, Village and Post office Jaunti, Delhi.
e)Offence complained of : Under Section 384/506/34 IPC f) Plea of Accused : Pleaded not guilty g) Final Order : Acquitted. FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 1 of 9
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) Matter pertains to year 2009. The accused had been sent to face trial for the commission of offence under Section 384/506/34 of the Indian Penal Code (hereinafter referred to as 'IPC') upon the allegations that complainant Smt. Dayawati was into the business of a wireless cables and providing TV services in the area for around 14 years; that her husband expired 26 years ago from the date of the incident and she is living with her only son and the aforesaid business is only her sole livelihood. Further she alleged that around and since 02.06.2009 i.e one month before the lodging of this FIR, she has been subject to constant threats and demand of illegal amount of ₹ 25,000/ from the accused and in the case she fails to honour the demand, she and her son would be put to the death and would be thrown in the jungles of Uttar Pradesh.
2) Subsequent to the chargesheet being filed in Court, cognizance of the offences was taken, all the four accused were summoned, they were admitted to bail after they entered appearance and copy of the chargesheet alongwith the documents were supplied to them in compliance of provisions of Section 207 of the Code of Criminal Procedure.
3) Notice was then served upon the accused Mahavir, Naval Singh, Kamal, Shamsher Singh for commission of offences under Section 384/506/34 IPC and charges were framed by the Ld. Predecessor to the effect "That in the month of July, 2009, at 107A, U & V Block, Shalimar Bagh, Delhi, within the jurisdiction of the Shalimar Bagh, all of you, in furtherance of their common intention, intentionally put complainant Smt. Dayawati in fear of injury on her FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 2 of 9 person and thereby dishonestly induce her to deliver Rs. 25,000/ and as all of you have thereby committed an offence punishable under Section 384/24 IPC and within my cognizance. And further that in the above said month of July 2009, all of you in furtherance of your common intention committed criminal intimidation by threatening the complainant and as such all of you have thereby committed an offence punishable under Section 506/24 IPC and within my cognizance" to which the accused persons pleaded not guilty and claimed trial.
4) To prove its case, the prosecution led the examination of witness.
5) PW1 Sh. Rajnish Kumar, who is son of the complainant Smt. Dayawati and have deposed that he resides at the aforesaid address along with his family. That his mother namely Smt. Dayawati was running the business of cable TV since 1999. On 02.07.2009, when he returned to his house, his mother told him that 34 boys had come to his house and told his mother that they had been sent to his house by Kamal, Naval, Shamsher and Mahavir for demanding ₹ 25,000 from his mother. Thereafter he made a call in the police station. Police officials came to his house and recorded the statement of his mother. That on the next day, he was also called to the police station and in the police station, his statement was recorded. In the police station, accused Kamal, Shamsher and Mahavir were also present at that time. He identified all of them as he had seen them earlier in the office when he visited their office and told the same to the IO. After 45 days, he again visited the police station and on that day, accused Naval was present at the police station. About one month prior to 02.07.2009, the accused persons used to visit his house in his absence, as told to him by his mother and they used to extend threats to his mother like they would kill her. On 02.07.2009, the aforesaid FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 3 of 9 accused demanded money saying that otherwise you will be seen by the accused persons. Since the witness was not disclosing the complete facts, Ld. APP of the State was allowed to cross examine wherein he stated that the accused person was running the business of wire and wireless cables. That it is correct that on 02.07.2009, the boys who had come to his house and have threatened his mother saying "Mahavir, Shamsher aur Kamal he ilaaz karenge" when his mother refused to give money. He admitted that prior to 02.07.2009, he had visited the office of accused persons to make them understand. He further admitted that on 03.07.2009, IO have arrested the accused Kamal, Mahavir and Shamsher vide arrest memos and have searched them vide respective search memos. Accused were correctly identified by the witness except for accused Kamal however, the defence counsel on behalf of the accused, had submitted that the identity of the accused was not disputed. PW1 was crossexamined by the Counsel of all the accused wherein he has deposed that he have been enrolled as an advocate with BCD since 2007. That on 02.07.2009, he returned to his house in the afternoon, however, he did not remember the exact time. He did not remember whether any security guard was present at the main gate of his society at that time. He denied that whenever any outsider used to enter into his society, they were required to make an entry at main gate of the society. He admitted that accused Kamal was known to him even prior to the incident in question and other three accused persons were identified by him when he visited the office of 1 2 times prior to the date of incident, however, he did not remember the date on which he visited their office. He visited their office for trying to make them understand "ki hame tang na kare". No complaint was made prior to the date of incident. He denied that no such threat ever was given by the accused person to his mother prior to 02.07.2009 and therefore no complaint was filed prior to 02.07.2009. It has been explicitly admitted by FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 4 of 9 PW1 that accused persons did not give any threat to him at any point of time and he further admitted that in his presence, his mother was not threatened by the accused persons". He further deposed that on the next day, he went to police station on his own to make enquiries about the case however he did not remember at what time he has reached to police station. He denied to have signed on blank papers and documents and that police has recorded a statement twice. He further denied that since he is an advocate, he had good terms with the local police and got registered a false case against them. He further denied that his mother was running a cable network illegally in the said area and further he denied to have deposed falsely.
6) In view of the aforesaid the deposition of son of the complainant PW1, it is apparent that no threat was extended to him personally or he have ever witnessed any threat to his mother or ever any demand was made in front of him about any illegal procurement of money. Therefore, in the present case the deposition of complainant herself i.e Smt Dayawati was of profound importance as the scales of guilt could only be sustained upon her deposition to that effect and her ability to withstand the crossexamination likewise. However, despite diligent efforts by the Court and despite service upon the complainant, she failed to appear before the Court. It is pertinent to mention herein several order sheets of this court which bear witness to such fact.
7) Vide ordersheet dated 23.09.2016, it was observed by this code that complainant/PW Dayawati is 73 years old and is suffering from arthritis and personal exemption was sought on her behalf. It was requested by Ld. Counsel that it would take at least 6 months for the complainant recover from her ailment.
FIR No. 190/2009PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 5 of 9
8) Vide ordersheet dated 23.03.2018, PW Dayawati was again served to her son however she failed to appear before the court and notice was issued to her to show cause as to why action should not be initiated against her under Section 350 Cr.P.C. for her nonappearance.
9) Vide ordersheet dated 16.11.2018, it was observed by this code that despite service, the complaint is not present and henceforth again show cause notice under Section 350 Cr PC was issued to her. Vide ordersheet dated 07.12.2018, advocate Saurabh has appeared in the morning and had sought oral exemption on behalf of witness Dayawati stating that the witness is not well.
10) Vide ordersheet dated 26.02.2019, despite PW Dayawati was served through the DCP concerned, again she failed to appear before the Court to depose.
11) Vide ordersheet dated 20.05.2019, PW SMt. Dayawati had not appear despite service and henceforth bailable warrant was issued against her and henceforth even then also she failed to appear on 15.07.2019. Again on 15.07.2019, warrants were issued against witness Smt Dayawati, however, despite the execution of bailable warrant, Vide ordersheet dated 19.08.2019, PW Dayawati failed to appear before the Court. Vide ordersheet dated 19.08.2019, even nonbailable warrant were issued against PW Dayawati, and again on 26.09.2019, 31.10.2019, however, it is apparent from the ordersheet of 07.01.2020 wherein it has been observed that "ASI Roshan Lal is present and submits that he had gone for the execution of NBWs against the witness Dayawati but she was found to be confined to bed unable to move and speak". No medical certificate was produced in support of such FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 6 of 9 submissions and henceforth NBWs were issued against the witness Dayawati to DCP concerned, however, on 03.03.2020, it remain unexecuted in spite the office of the DCP was given direction. Ld. APP for the State thereon submitted that since the presence of the witness Dayawati has not been secured for a very long time, she may be dropped from the list of the witnesses and Ld. APP further submitted that there are no other eyewitnesses except the complainant. In view of the aforesaid submissions, my Ld. Predecessor Judge making observation that "in these circumstances such as the presence of complainant could not be secured and there are no other eyewitness, prosecution evidence stands closed.
12) After prosecution evidence was closed, the statement of all the accused were recorded under Section 313 read with Section 281 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained their innocence and chose to lead defence evidence. However no defence evidence was led.
13) Final arguments as advanced have been carefully considered along with the evidence on record. It is pertinent to mention herein that though application under Section 311 Cr.PC was moved by the Ld. APP for State on 28.02.2022 for recalling of witnesses and at length submissions were heard of the Ld. APP for the State, however, it was fairly held that since there is inordinary delay, the Court in its discretion was constrained to disallow the application.
14) It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 7 of 9 able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
15) It is apparent that in view of the fact that the presence of witness Dayawati was not secured despite several efforts made by the Court for more than 6 years and in view of the deposition on record of the son of the complainant i.e. PW1 wherein he has categorically admitted that no threat was ever extended to him personally, nor he has ever witnessed directly to the fact that his mother was extended threats or money was ever delivered, henceforth there are no evidences against the accused in the present case.
Decision
16) In view of the above discussion, as the prosecution has failed to discharge the onus placed upon it and has failed to prove its case beyond any reasonable doubt, the benefit of doubt is given to the accused, accused Mahavir, Naval Singh, Kamal, Shamsher Singh and they are acquitted of offence under Section 384/506/34 IPC in FIR No. 190/2009 PS Shalimar Bagh.
17) The accused persons are directed to furnish fresh personal bond in a sum of Rs. 10,000/ each with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon them.
18) File be consigned to the Record Room after necessary compliance.
FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 8 of 9 Announced in the open Court on 22.04.2022 Digitally signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date: 2022.04.22 18:14:28 +0530 (VAIBHAV CHAURASIA)
Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 09 pages and each page bears my signature. Digitally signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date: 2022.04.22 18:14:35 +0530 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi FIR No. 190/2009 PS Shalimar Bagh U/s 384/506/34 IPC State Vs Mahavir etc. Page No. 9 of 9