Delhi District Court
Cr CASES/91548/2016 on 12 October, 2018
In The Court Of Ms. Sheetal Chaudhary Pradhan, Metropolitan
Magistrate02, (Mahila Court), South East, New Delhi
State v. Ishrat Ali Shah & Anr.
FIR No: 163/2008
PS: Amar Colony
U/s: 452/323/327/506/509/354/34 IPC
JUDGMENT
Date of institution : 16.07.2009
CRC no. : 91548/2016
Name of the complainant : As per Chargesheet.
Name & address of the accused 1. Ishrat Ali Shah
S/o Sh. M.A. Shah
2. Seema Shah
W/o Ishrat Ali Shah
Both R/o House No.401,
Abdul Aziz Road Chowk,
Lucknow, Uttar Pradesh.
Offence Complained of : U/s 452/323/354/506/509/327/34 IPC
Offence Charged of : U/s 323/327/506/509/354/452/34IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of arguments : 11.10.2018
Date of announcing of order : 12.10.2018
FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 1 of 20
BRIEF FACTS:
1. Brief facts of the case are that the complainant in her complaint dated 17.03.2008 filed before the court u/s 156(3) CrPC upon which the FIR was registered on the orders of the court dated 07.04.2008 has stated that she being 67 years old deserted lady having no children have been residing at house No.5/64, First Floor, Nirmalpuri, Lajpat NagarIV, New Delhi for several years. The aforesaid property was purchased by her from her own funds and in the month of December, 2001, both accused persons approached her for being a tenant on the first floor backside of the aforesaid property for one or two months since they were looking for a house to be purchased by them. However, even after the expiry of the said period, the accused persons did not vacate the premises which was rented out for an amount of Rs.4,500/ per month excluding electricity and water charges. Thereafter, complainant requested both the accused persons on several occasions to vacate the premises but the accused persons sought time to do the same and did not vacate despite repeated request by the complainant. Thereafter, the accused persons started extending threats to the complainant with dire consequences if she reported the matter to any person and started living in the premises and kept occupying the house of the complainant with the intention to harass her. On 23.02.2008 at around 2.00 PM when the complainant was sitting at her aforesaid house alongwith two persons namely Sh. Abrar Ali and Ram Sanjeevan, both the accused persons FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 2 of 20 forcibly entered the room of the complainant and tried to get some documents signed by the complainant forcibly. Upon her refusal, she was beaten mercilessly by both the accused persons and abused in filthy language. The complainant was beaten by holding her hair and accused persons even tried to make the complainant naked by pulling off the kurta and bra of the complainant and also was tried to untie her salwar. Thereafter, accused Ishrat Ali tried to outrage the modesty of the complainant and due to the same, complainant became unconscious. At that time, the aforesaid persons namely Sh. Ram Sanjeevan and Sh. Abrar Ali tried to intervene but the accused persons threatened them if they intervened with dire consequences. Due to the aforesaid threat, the said persons namely Abrar Ali and Ram Sanjeevan left the place. After sometime, at around 8.13 PM, complainant regained consciousness and made a call at 100 number. However, police officers did not take any action and only lodged DD No.29B dated 26.02.2008 with the police. The complainant was abused in filthy language.
2. Pursuant to this complaint dated 17.03.2008 against accused, FIR was registered upon the orders of the court dated 07.04.2008 and the matter was investigated. Chargesheet was filed on 16.07.2009. Court took cognizance of offence and summoned the accused. Vide order dated 18.06.2015 charge was framed against both accused persons for the offences U/s 452/323/327/506/509/354/34 IPC. Accused persons FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 3 of 20 pleaded not guilty and claimed trial and accordingly matter was listed for prosecution evidence. Thereafter, prosecution evidence was led.
3. In order to prove its case, prosecution has examined five witnesses during trial.
PW1 Complainant deposed that she had purchased property bearing No.5/64, Nirmal Puri, Lajpat NagarIV, New Delhi from one Laxman Kaur in the year 1970 with roof right and at that time only first floor was constructed. In the month of December, 2001, both accused approached the complainant and requested to give them back portion of the first floor on rent for some time and they also assured her to vacate the same whenever they would purchase their own house as they were searching for their own house. Whenever complainant requested them to vacate the premises, they requested for some more time. After sometime, since the accused persons wanted to grab the premises as the complainant was alone and an old lady without having any support, both accused started extending threats to the complainant and abused her whenever she requested them to vacate the premises. In the year 2008, she did not remember the exact date or month, both accused came in front side of the first floor where the complainant was residing and started beating her by dragged her hair and misbehaved with her by using filthy language. She got unconscious due to the beatings given to her by the accused persons. At the time of misbehaving with her, FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 4 of 20 accused persons had laid down her on the floor of her house and tried to open her salwar to outrage her modesty and after that they ran away. At the time of running away accused persons had threatened her saying that 'maar dunga'. She called at number 100 and police came there. She narrated the said incident to police but police did not pay any heed to take any action against accused despite her repeated requests to police. Thereafter, she filed a written complaint against the accused regarding the said incident before the court under section 200 Cr.P.C. which was Ex.PW1/A. She also made a written complaint regarding the incident and earlier also about the bad behaviour of accused persons towards her to SHO Amar Colony on several occasions, which was Mark A dated 25.02.208, Mark B dated 26.07.2004.
During crossexamination PW1 deposed that she had been staying in the premises since 1970. It was correct that the property bearing no. 5/64 was initially alloted to Panchu Ram, who sold the same to Lakshman Kaur and the same was purchased by her. Initially a power of attorney was signed in her favor and subsequently the same was registered in her name in the year 2007. Accused persons approached her to be kept as a tenant in her premises in the year 2001. At that time she had not signed any rent agreement. She did not get any police verification done of the accused persons since it was not in practice. She had given the house on rent on good faith and did not issue any rent receipt to the accused persons. She had rented the accommodation to FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 5 of 20 accused persons only for a short period that is for one or two months since both the accused assured that they shall vacate the house as they were looking for their own house. She did not serve any legal notice to the accused persons since it was given on good faith and she only requested the accused persons to vacate the premises. It was correct that accused persons requested for time of 34 months to vacate the premises. She did not make any written complaint and served them legal notice to vacate the premises even after expiry of above period of 34 months. At the time of incident, only she and accused persons were residing on the same floor. She was residing at the front side and the accused were residing at the back side and no other public persons were present at the time of incident at the same time. It was wrong to suggest that she did not execute any rent agreement pertaining to above said rented house given to accused persons as she was not owner of the same at that time. It was wrong to suggest that there was civil dispute and one civil case was also pending between her and accused persons prior to the present incident. It was wrong to suggest that above said premises was let out on rent to accused persons by Panchu Ram and not by her. It was wrong to suggest that after death of Panchu Ram rent amount of the above said premises were given to Jagat Ram, Nephew of Panchu Ram by the accused persons. Present incident continued for 45 minutes by accused persons. She did not remember the exact duration of her unconsciousness at the time of incident. At the time of incident no other FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 6 of 20 public persons/ other tenants were present there. Her medical examination was not conducted by the police officials. It was wrong to suggest that the at the time of calling on 100 number by her, she was not present at the spot. To her knowledge she had given the complaint to the police on the date of incident. She did not remember the exact date of giving complaint to the police officials. It was wrong to suggest accused persons were falsely implicated in the present case only for the reason that they refused to give her rent for the above said premises. It was correct that the police officials had inquired from her about the case and recorded her statement.
PW2 Smt. Bhag Sethi (neighbour of the complainant) deposed that she was residing at the address for last more than 20 years. Complainant was residing at 5/64, Double Storey, Lajpat Nagar, next to three houses of her house. On the day of incident (date she did not remember) she was present at her house and she could not go out due to her physical challenge. On the day of incident, in evening time complainant came to her house and narrated about the quarrel taken place between her tenant (whose name she did not know). Complainant also told her that she had been given filthy language by her tenant. Police officer inquired from her about the incident. She did not know the manner of quarrel taken place between complainant and accused.
Thereafter, the witness was cross examined by Ld. APP for the State as the witness was resiling from her earlier statement and FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 7 of 20 during her crossexamination she deposed that it was wrong to suggest that she had told the police official that complainant told her that accused Irshrat Ali Sah and Seema Sah had forcefully entered into her house and they had beaten her for getting signature on the document pertaining to her flat and abused her. The witness was confronted with statement under Section 161 Cr.P.C. from point A to A1 where it was so recorded.
During crossexamination PW2 deposed that on the day of incident, she never met with tenant of complainant or accused Irshrat Ali.
PW3 Smt. Kavita Sethi (neighbor of the complainant) deposed that she was residing at her address for last 37 years. Complainant was residing at 5/64, Double Storey, Lajpat Nagar, next to fourfive house of her house. On 23.02.2008, she was present in her house and on the day of incident in evening time when she came out from her house, complainant told her that accused Seema Shah and Irshrat Ali Shah had misbehaved with her by manhandling and abusing her. Accused persons were correctly identified by the witness.
During crossexamination PW3 deposed that she was not present at the time of place of incident and she had never met with accused persons on the day of incident.
PW4 ASI Ram Niwas (Duty Officer) deposed that on 14.05.2008, he was posted as HC and working as duty officer in PS FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 8 of 20 Amar Colony. He received original rukka from SI Pramod Gupta and endorsed vide Ex.PW4/A and FIR was got registered vide Ex. PW4/B. Opportunity to crossexamined the witness to the accused but he did not question anything from the witness.
PW5 Inspector Pramod Kumar (IO) deposed that on 14.05.2008, he was posted as SubInspector in PS Amar Colony. On that day, he had received a complaint Ex.PW1/A with direction of the Hon'ble Court for registration of the FIR and consequently, present FIR was registered through concerned duty officer. After registration of FIR, he had received the present complaint and copy of FIR as further investigation of the present case was marked to him. On the same day, he went to the residence of complainant and prepared the site plan which was Ex.PW5/A. He had provided copy of FIR to her and recorded her supplementary statement u/s 161 CrPC. During the course of investigation, he had recorded the statement of witnesses Abrar Ali, Ram Sanjeevan, Bhag Sethi and Smt. Kavita Sethi as their name was revealed by the complainant. On 22.08.2008, accused Ishrat Ali Shah was formally arrested and his personal search was conducted vide memo Ex.PW5/B and Ex.PW5/C. On 25.08.2008, accused Seema Shah was formally arrested and her personal search was conducted vide memo Ex.PW5/D and Ex.PW5/E as they were granted anticipatory bail. Thereafter, he had seized copy of conveyance deed for house No.5/64, Nirmal Puri, Lajpat NagarIV and copy of telephone bill for phone FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 9 of 20 No.20280943 in the name of complainant, from the complainant vide memo Ex.PW5/F. Thereafter, copy of conveyance deed and telephone bill were mark A and B. After completion of investigation, chargesheet was filed in the court.
During crossexamination PW5 deposed that it was correct that the civil matters were pending between the complainant and the accused persons. He had submitted the report in respect to the application u/s 156(3) CrPC moved on behalf of complainant before the court. He had not filed the same alongwith the chargesheet and had not got conducted any MLC or medical of the complainant during investigation. Complainant had not handed over him any medical document in respect to any injury.
4. Thereafter, prosecution evidence was closed and statement of accused was recorded U/s 313 Cr. P.C wherein all incriminating evidence was put to accused. Accused denied the allegations of prosecution as false and pleaded false implication.
5. Accused persons examined two witnesses in their defence.
DW1 Dr. Neeraj Aggarwal deposed that he had been running a clinic at E234, G.K.I, New Delhi since the year 2005. Thereafter, witness was shown a prescription dated 23.02.2008. Upon seeing the same, the witness admitted the same to be in his handwriting and the FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 10 of 20 same was Ex.DW1/A. Witness was also shown a certificate which he admitted to be in his handwriting and was Ex.DW1/B. As per the certificate and the prescription, patient I.A. Shah remained under his observation in his clinic from 5.15 am of 23.02.2008 till 8.00 pm of 23.02.2008.
During crossexamination DW1 deposed that it was correct that he used to maintain the record of his patient who were admitted in his clinic and medically examined in OPD in admission register and OPD register respectively. He did not have the relevant register pertaining to the aforesaid patient Mr. I.A Shah due to guidelines of Delhi Government Director Health services which required to maintain record only for three years and the present records pertains to 10 years old. It was correct that he did not have any record of register maintained by him and other ground by which it could be ascertain that the said documents Ex.DW1/A and Ex.DW1/B were prepared on 23.02.2008. It was correct that the date was not mentioned under his handwriting beneath his signature on document DW1/A and DW1/B. DW1 voluntarily stated that the documents were very old and torn and yellowish which proves by any forensic expert that the papers were more than 05 years old and the date mentioned below the signature in the computerized form as the whole certificate was computerized and on the second paper the date was mentioned on a same page in his handwriting on document Ex.DW1/A, on top of the both pages, date was mentioned FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 11 of 20 only one time on the doctors prescription and not two times. He did not have computerized record pertaining to certificate Ex.DW1/A. It was wrong to suggest that the aforesaid documents Ex.DW1/A and Ex.DW1/B were false and fabricated and prepared by him after the registration of present FIR with the connivance of accused as he did not have any other record which suggest that the said documents were maintained in his clinic.
DW2 Nasrat Ali Shah (real brother of accused No.1)deposed that the accused was unwell on 23.02.2008, he was taken to Aggarwal Medical Center situated at G.K.I for treatment and he accompanied accused since he was having high fever and was unconscious. He remained with him in the hospital till 8.00 PM as he was discharged from the hospital at around 8.00 PM.
During crossexamination DW2 deposed that he was residing at Meerut and on 22.02.2008, he came to Delhi at the residence of accused Ishrat Ali Shah from Meerut. He did not have any documentary proof like ticket or CDR which suggest that he came to the residence of accused Ishrat Ali Shah in Delhi on 22.02.2008 and remained till 23.02.2008.
Court Observations:
6. Accused persons have been charged of having committed offences punishable u/s 452/323/327/506/509/354/452/34IPC wherein it has been alleged that accused persons had trespassed into the house of FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 12 of 20 complainant with the intention to cause hurt to her and thereafter, both the accused persons caused simple hurt to the complainant and threatened her with the intention to extort property of the complainant.
Further, both the accused persons insulted the modesty of the complainant by abusing her in filthy language and further both the accused persons outraged the modesty of the complainant by tearing off her clothes with the purpose to remove them and even tried to remove the wearable salwar of the complainant and molested her. To determine if an offence u/s 452/323/327/506/509/354/34 IPC is made out against accused persons, it is necessary to peruse the ingredients to constitute the aforesaid offences. To constitute an offence u/s 452 IPC, it was required to prove that the accused persons committed house trespass by entering into or remaining unlawfully in the house of the complainant and the house trespass was made after preparing or causing hurt, assaulting or wrongfully restraining and putting the complainant in fear of hurt, assault or wrongful restrain. Further, to constitute an offence u/s 323/327 IPC, it was required for prosecution to prove that the aforesaid act of the accused persons caused bodily pain or infirmity to the victim and the same was done so by the accused persons with the intention of causing hurt or with the knowledge that it was thereby cause hurt to the victim or the same was committed to commit extortion and compelling the complainant to commit any illegal act or facilitated the commission of any offence. Further, for the offence punishable u/s 506/509/354 IPC it FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 13 of 20 was required for the prosecution to prove that the accused persons extended threats to the complainant and used indecent language towards the complainant with the intention to insult and outrage the modesty of the complainant.
7. Ld. APP for the State has argued that there is complete corroboration in the testimony of the witnesses and the complainant has supported the story of prosecution and there is no contradiction. The veracity of the witness is not doubtful as she had withstood the cross examination conducted on behalf of the accused. He has further argued that being an educated lady from a sound background and also for the fact that complainant did not have any previous enmity with the accused, there is no reason for the accused to have been falsely implicated and only minor discrepancy is not fetal and the story of the prosecution stands on its own legs. Further, the guilt of the accused is proved beyond reasonable doubt and he is liable to be convicted.
8. On the other hand, it has been argued on behalf of the accused persons that they have been falsely implicated in the present matter by the complainant by taking advantage of the old age lady. It has been argued that the complainant was residing in the premises and was not the owner of the same. Further that the accused persons did not take on rent the property from the complainant but from the owner of the property FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 14 of 20 and therefore, the allegations of the complainant are false and fabricated. It has also been argued that the story of the complainant is not been corroborated by any of the witnesses examined by the prosecution. Further, though the complainant has alleged that on the date of incident she was sitting in her house alongwith two more persons namely Abrar Ali and Sh. Ram Sanjeevan, she contradicts her statement during her crossexamination. It has also been argued that the aforesaid witnesses have been dropped by the prosecution and their testimony was never recorded to substantiate the allegations against the accused persons. It has also been argued that though the complainant has also alleged that accused persons gave her severe beatings due to which she even became unconscious, no such medical record or document pertaining to any such injury have been placed on record and therefore, accused persons are liable to be acquitted.
9. After having carefully perused the evidence on record and considered the rival contentions of the state as well as defence counsel, this court has come to the conclusion that the guilt of the accused persons has not been proved beyond reasonable doubt.
10. The prosecution case finds its genesis in complaint dated 17.03.2008 Ex.PW1/A which was the application filed by the complainant u/s 156(3) CrPC in the court. In the aforesaid complaint Ex.PW1/A complainant has narrated several facts and incident which FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 15 of 20 are not deposed by her during her examination before the court. The complainant has leveled allegations against the accused persons that they shifted in the premises of complainant in the year 2009 and refused to vacate the same despite her several request. Further, upon their repeated request, complainant agreed to grant them time to look for another accommodation. However, within three to four months accused persons refused to vacate the accommodation and threatened the complainant by saying that she was alone and did not have any family members. Complainant was further threatened to remain silent or face dire consequences. It has also been alleged that complainant tried her best to get the property vacated by taking help from the persons of the society and neighbourhood and made several complaints to the police but she was stopped by the accused persons with the help of muscle man and police personnel however, the aforesaid facts are not mentioned by the complainant during her examination before the court. Further, the complainant does not disclose about any of the facts mentioned by her in para 11 to 16 of her complaint Ex.PW1/A. Complainant has stated during her examination in chief that she did not remember the exact date, month or year of the incident, however, on that day both the accused persons came to her house and dragged her by hair and misbehaved with her by using filthy language and due to the same, she became unconscious as the accused persons had given beatings to her. Being PW1, she has further deposed that at the time of incident accused FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 16 of 20 persons had laid down the complainant on the floor of the house and tried to open her wearable salwar with the intention to outrage her modesty and thereafter, ran away from the spot and while running threatened the complainant by saying "maar dunga" and thereafter, she made a call at 100 number. Police reached the spot but did not take any action and she was forced to file her complaint u/s 156(3) CrPC before the court. However, in her complaint Ex.PW1/A in para 17 the complainant has stated that on 26.07.2004 when the complainant was present at her house, accused persons forced her to put thumb impression upon some blank stamp papers and upon denial accused Ishrat Ali Shah, Seema Shah and Mushrat Ali kicked the complainant and she fell down. Thereafter, all the three abovesaid persons held her hair and gave merciless beatings to the complainant and abused her in filthy language and made a complaint to the police by personally visiting the police station but no action was taken. She further has stated in para 18 of Ex.PW1/A that the aforesaid persons tried to get some documents sign and on her refusal tried to untie her salwar with the intention to outrage her modesty because of which complainant fell unconscious. Further, when Sh. Abrar Ali and Ram Sanjeevan tried to intervene, they were threatened to face dire consequences and they left the spot. Complainant regained consciousness at 8.15 PM and made a call at 100 number but the police did not come or take any action on her call which itself are completely contradictory to each other.
FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 17 of 20
11. Complainant has stated in para 20 that the accused persons used filthy language and said "haramzadi, kutia, kamini", however the aforesaid abusive language is nowhere mentioned by the complainant during her deposition before the court. Further, the complainant has relied upon document mark A and B, allegedly being complaints made to the police on 26.07.2004 and of the previous dates and not of the date of incident.
12. The complaint Ex.PW1/A is vague and bereft of details and the complaint is devoid of merit. It is further argued that the chargesheet does not disclose the exact date, time or place of alleged incidents of misbehaving with the complainant and further the complainant did not depose on the lines of her complaint Ex.PW1/A.
13. PW1 is the star witness of the prosecution as she is the victim and the aggrieved in the present matter who had suffered criminal sexual assault upon her, at the hands of the accused persons. Further, the accused persons who had misbehaved with the complainant by pulling her hair and touching the complainant inappropriately.
14. In the present matter, apart from the complainant PW2 and PW3 are also examined as public witnesses, however, none of the aforesaid witnesses supported the story of complainant and PW2 was declared hostile by the prosecution. Testimony of PW3 is of hearsay nature and she admitted during her crossexamination that she was not FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 18 of 20 present when the alleged incident took place. While testifying as PW1, complainant has not stated the facts of the incident as stated by her in her complaint. The complainant has stated in her complaint that at the time of incident, two more persons were present on the spot when the accused persons misbehaved with her however, she does not mention the same during her examination and contradicts her statement during her cross examination. The complainant does not mention regarding the alleged abusive indecent language if any, used by the accused persons towards the complainant with the intention to insult her modesty. Further, even though the complainant has alleged to be given severe beatings, she did not place on record any medical document to show the injuries received by her and therefore, the aforesaid allegations of beatings do not stand proved. The allegations of the complainant of indecent language are also not sustainable as the same are completely vague and do not inspire confidence. The complainant has levelled general allegations against the accused persons and the same are devoid of merit as the complainant has not explained the same even during her statement recorded before the court. The alleged threats by the accused persons are not corroborated by any date, time or place by the complainant.
15. Therefore, there was nothing to lend support to the testimony of PW1 apart from bald averments made in the complaint and her testimony before the court and the documents relied upon by the FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 19 of 20 prosecution, it can be safely concluded that the guilt of the accused persons have not been proved beyond reasonable doubt.
16. In view of the above discussion and considering the material, available on record, the guilt of the accused persons is not proved beyond reasonable doubts. Therefore, accused Ishrat Ali Shah and Seema Shah are acquitted for the offences U/s 323/327/506/509/354/452/34IPC.
Announced in the open Court (Sheetal Chaudhary Pradhan)
on 12.10.2018 Metropolitan Magistrate02
(Mahila Court)/SED/Saket
New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.10.12
16:04:44
+0530
FIR No. 163/2008, PS Amar Colony State v. Ishrat Ali Shah & Anr. 20 of 20