Delhi District Court
State vs . Ashok Kr. Sharma & Ors. on 1 June, 2015
IN THE COURT OF MS. MONA TARDI KERKETTA: MM:MAHILA COURT:
TIS HAZARI COURTS : DELHI
FIR No. 314/08
P.S. Subzi Mandi
U/s 354/452/506/34 IPC
State Vs. Ashok Kr. Sharma & ors.
1.UID No. of the case : 02401R0375442010
2.Name of the complainant : Ms. Kusum Bala W/o Sh. Lal Bansal
3.Date of commission of offence : 06.09.2008
4.Name of accused persons, their parentage
and address : 1. Ashok Kumar Sharma
S/o Late Sh. Amar Nath Sharma
2. Lalit Kumar Sharma
S/o Late Sh. Vijay Kumar Sharma
Both R/o H. No. 948, Punjabi Mohalla
Subzi Mandi, Ghanta Ghar,
Delhi110007
5.Offence complained of : U/s 354/452/506 IPC (charge framed u/s
354/452/34 IPC)
6.Plea of accused persons : Pleaded not guilty
7.Final order : Acquitted
8.Date of such order : 01.06.2015
Counsels for the parties
For the State : Ms. Sarita Rani
For the Accused Persons : Sh. Tarun Arora
FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 1/13
BRIEF REASONS FOR THE DECISION :
1. The brief facts of the case as have been disclosed in the complaint filed by the complainant Smt. Kusum Bala, W/o Sh. Lal Bansal, R/o H. No. 948, Punjabi Mohalla, Subzi Mandi, Delhi110007, wherein it is stated that the complainant is the lawful owner of the above said property. The stairs of the complainant and the accused persons are common and wall of the ground floor and first floor are separate from H. No. 949 & 948, situated at Punjabi Mohalla, Subzi Mandi, Ghanta Ghar Delhi. There are two rooms, varanda and kitchen and latrine, both kitchen on the ground floor, two rooms and one store on the first floor of the complainant. It is further stated that on 03.09.2008, the accused persons started renovating their property. They removed walls of their property situated at the ground floor of house no. 948 from the side of complainant's property and made big holes on the walls of the complainant's house and put heavy iron garters on the wall without her consent and permission. When the complainant objected and requested them not to do so, the accused persons became furious and started abusing the complainant in filthy language and threatened of dire consequences. The complainant immediately called at 100 number vide challan no. 111 dated 03.09.2008. On receiving information, the PCR Van came at the spot and HC Diler Singh and Ct. Bal Swaroop inquired into the matter but did not take any action against the accused persons.
2. It is further stated that on 06.09.2008 at about 02.00 pm, both the accused persons with hammers in their hands, forcibly entered the complainant's house and tried to make hole on the walls of the complainant's house. The complainant objected the said illegal acts , on which both the accused persons started abusing her in filthy language and stood on the double bed of the complainant and tried to make holes on the walls of the complainant. When the complainant asked them to go out of her room, accused persons pushed the complainant, tore her clothes and tried to outrage her modesty. They were threatening to finish the life of complainant FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 2/13 by hitting hammer on her head,due to which the complainant got very much scared and cried for help. In the meanwhile, accused persons escaped from the spot after extending threats to her that in case she objected, they would finish her and her family member's life. Thereafter, a written complaint was given by the complainant on 06.09.2008 to local police PS Subzi Mandi, for registration of criminal case against the accused persons but no action was taken.
3. It is further stated that construction of the house was very old as the same was constructed more than 60 years ago. Due to the illegal acts of the accused persons, the complainant was having grave apprehension of collapse of the house due to extra burden of the iron garter and complete load on the property, loss of life and property. It is further stated that even after lodging of complaint, no case was registered against them, due to which both accused persons became more dangerous. The complainant was forced to live completely under the threat of accused persons.
4. It is further stated that the complainant waited for the registration of FIR and other legal action against the accused persons, but no case was registered hence the present complaint case was filed before the court. It is further stated that in view of abovesaid facts and circumstances, both accused persons in furtherance of their common intention have committed the offences punishable U/s 354/427/451/452/506/34 IPC, for which they are liable to be summoned, prosecuted and punished accordingly. On the basis of the present complaint of the complainant, the court directed to register a case U/s 354/452/506/34 IPC. The case was registered and investigation was conducted.
5. After completion of investigation, chargesheet was filed in the court against the accused persons u/s 354/452/506/34 IPC. Accused persons were summoned by Ld. Predecessor, who appeared before the court on receiving summons. They were supplied with copies of charge sheet in compliance of provision given u/s 207 Cr.P.C. The accused persons were heard on the point of charge, vide order dated 19.10.10 charge u/s 452/354/34 IPC was framed against them, to which they individually FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 3/13 pleaded not guilty and claimed trial.
6. Subsequent thereto, matter was fixed for prosecution evidence. In order to prove its case, the prosecution produced the following witnesses :
(a) Smt. Kusum Bala/complainant, appeared as PW 1 and proved her complaint Ex. PW1/A. She also identified the accused persons before the court,
(b) Smt. Suman Bansal, Jethani of complainant, appeared as PW 2. She also identified the accused persons before the court,
(c) ASI Narender Singh, appeared as PW 3 and proved FIR Ex. PW3/A, endorsement on rukka Ex. PW3/B,
(d) HC Amar Pal, appeared as PW 4 and proved arrest memos Ex. PW 4/A & PW4/B, personal search memos Ex. PW4/C & PW4/D,
(e) SI Abhishek Kumar appeared as PW 5 and proved photographs of the house of complainant Mark P1 & P2, (f ) SI Dr. P.S. Bhardwaj appeared as PW6 and proved site plan Ex. PW6/A,
7. After completion of prosecution evidence, matter was fixed for recording of statement of accused persons under section 313 Cr. PC. The statements of accused persons U/s 313 Cr.P.C. were recorded, wherein entire incriminating circumstances appearing on record were put to them, to which they denied as false and incorrect and claimed to have been falsely implicated and submitted that on the date of incident some repairing work was being carried out but no quarrel had taken place. Accused persons preferred to lead evidence in their defence and examined two witnesses. Smt. Neeta Sharma examined as DW1 and Smt. Laxmi as DW2. Subsequent thereto, matter was fixed for final arguments.
8. During the course of final arguments, following arguments were made on behalf of the accused persons:
(i) that no MLC or medical record of complainant to prove the injury allegedly caused to her is produced and proved on record ,
(ii) that complainant has filed civil suit against the accused persons on 06.09.2008 but strangely incident dated 04.09.2008 has not been mentioned though reference FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 4/13 has been made about incident dated 03.09.2008 and 06.09.2008,
(iii) that in mediation proceedings and bail matter also mention of incident dated 04.09.2008 is not found and entire focus is on renovation of the house and removal of garters placed on the wall of the house. During cross examination, complainant has admitted these facts,
(iv) that a civil dispute has been given an ugly turn by misusing the rights and liberties given by framing the accused persons falsely with the motive to pressurize them to reach to a settlement ,
(v) that the alleged torn clothes were not recovered or made case property, which indicates that no such incident had taken place,
(vi) that neither neighbours nor other family members despite their availability were made to join the investigation and cited as witness.
9. On the other hand, Ld. APP for the state made the following submissions:
(i) that the prosecution has been able to prove the guilt of accused persons beyond reasonable doubt,
(ii) that the observations made or terms of settlement discussed during mediation proceedings are not binding on the merits of the case,
(iii) that nothing has been brought on the record to prove the absence of accused persons at the spot,
(iv) that no complaint of accused persons made to police against the complainant has been proved. During cross , defence witness has admitted that accused persons did not approach to senior police on non taking of action on their complaints.
10. The court has heard the arguments of both sides and perused the entire record including testimonies of witnesses and documents filed by the parties. Before appreciating the evidence, let us first discuss relevant legal provisions given under Indian Penal code. Section 354 IPC makes penal the assault or use of criminal force on a women to outrage her modesty. The essential ingredients of offence under section 354 IPC are :
(a) That the assault must be on a woman;
FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 5/13
(b) That the accused must have used criminal force on her;
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
Section 452 IPC Provides :punishment for committing housetrespass after preparation for hurt, assault or wrongful restrain. Housetrespass is committed when someone commits criminal trespass by entering into or remaining in any building, tent or vessel used as human dwelling or any building used as a place for worship, or as a place for the custody of property. Criminal trespass requires : (a) entry into or upon property in the possession of another (b) if such entry is lawful, then unlawfully remaining upon such property(c) such entry or unlawful remaining must be with intent (i) to commit an offence, or (ii) to intimidate, insult, or annoy any person in possession of the property.
11. Let us now appreciate the evidence available on record in the light of aforesaid legal provisions. It is well settled that the testimony of sole witness or interested witness can be relied upon in order to secure conviction of the accused if evidence is found credible and trustworthy. In the present case, the overall facts and circumstances suggest that no such incident as alleged by the complainant took place. The complainant in her complaint at para number 03 & 04 has stated that on 03.09.2008, accused persons started renovating their property. They removed walls of their property of the ground floor of house no. 948 from the side of complainant's property and made big holes on the walls of the complainant at the ground floor and put heavy iron garters on the wall without her consent and permission. When the complainant objected the above said acts of the accused persons and requested them not to do so, they became furious and started abusing her in filthy language and threatened of dire consequences. The complainant immediately called at 100 number vide challan no. 111 dated 03.09.2008. On receiving information, the PCR Van came at the spot and HC Diler Singh and Ct. Bal Swaroop inquired into the matter but did not take any action against the accused persons.
12. It be observed that these facts are not mentioned in the examinationinchief FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 6/13 of PW1/complainant as well as alleged eyewitness PW2 Smt. Suman Bansal. No evidence has been collected and proved on record to prove the said incident. No police officials as named above has been examined to prove the PCR call made by the complainant and said police officials had reached the spot after receiving information but did not take any action. It is also notable that in FIR Ex PW3/A the date of alleged incident is mentioned as 03.09.2008 whereas the incident of house tress pass and outraging of complainant's modesty. Rather there is no mention of incident dated 03.09.2008 in the examination in chief of complainant and other witnesses.
13. It further be observed that the complainant has made reference of incident dated 06.09.2008 also but again she has not mentioned many facts in her examination in chief as mentioned in complaint Ex PW1/A. In her examination in chief, she has stated that on 06.09.2008, accused persons were getting the house repaired. At that time she and her sister in law Smt. Suman Bansal were present in the house . At that time accused persons entered her house and started damaging the wall. They caused 0304 big holes in the wall and placed an iron garter. When complainant objected to the same, accused persons assaulted and abused her. They tore her wearing clothes and also damaged the furniture. Whereas in the complaint Ex. PW1/A she has stated that on 06.09.2008 at about 2.00 pm, accused persons armed with hammer forcibly entered her house and tried to make hole on the walls. The complainant objected to the same on which both the accused persons started abusing her in filthy language and stood on the her double bed and tried to make holes on the walls. When the complainant asked them to go out of the room, the accused persons pushed her , tore her cloths and tried to outrage the modesty. She has further stated that they were threatening to finish complainant's life by hitting the hammer on her head. Thereupon, the complainant became very much scared and cried for help. In the meanwhile, accused persons escaped from the spot after extending threats to her and her family's life.
14. It be observed that in examination in chief the complainant has not FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 7/13 mentioned about the fact of accused persons having hammers in their hands and forcible entry into the house. In her complaint she has stated that accused persons tried to make holes in the wall whereas in examination in chief she has stated that they made 03/04 big holes and placed iron garter. In examination in chief, she has not mentioned that accused persons pushed her and tore her and tried to outrage her modesty. The complainant has also not mentioned the fact of extending threats to her by hitting hammer on the head. She has also not mentioned the fact that when she cried for help, accused persons fled from the spot extending threats to her and her family's lives. The fact of damage of furniture is not mentioned in her complaint Ex. PW1/A.
15. It be observed that no MLC or medical record of the complainant has been proved to substantiate the claim that she was assaulted or criminal force was used to her with intention to outrage her modesty. PW2 /Smt Suman Bansal has testified that due to alleged assault , PW1/complainant had received minor injuries. Whereas PW1/complainant does not state so in the examination in chief as well complaint Ex PW1/A . It was only during cross examination, she has stated that she had suffered injuries on her left hand for which MLC was prepared. She denied the suggestion that no such incident had occurred and she did not volunteer for medical examination on the date of incident as she did not receive injuries at the time of incident. Whereas PW2/Smt. Suman Bansal has deposed that complainant was medically examined on the date of incident in the night at Hindu Rao Hospital and MLC was prepared but this fact does not find mention in the examination in chief of either complainant or IO. In fact IO/PW6 has specifically testified that he had not got medical examination of complainant done.
16. Admittedly civil suit is pending adjudication between the parties. The court finds force in the submissions of Ld. Defence counsel that a civil dispute has been given an ugly turn. It is notable that the civil suit Ex PW1/DA was filed by the complainant against the accused persons on 06.09.2008. A perusal of document Ex PW1/DA shows that the complainant has made reference of each and every incidents FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 8/13 except the present incident, which goes on to suggest that no such incident as alleged had taken place. During cross examination, complainant has admitted that she had narrated the factum of said incident to her counsel at the time of drafting petition however the suit does not mention about the present incident. No cogent explanation has come on record as to why there is no mention of the present incident in the petition. It is also noticeable that settlement talks during mediation proceedings and bail matter revolved exclusively around renovation of the house and removal of the garters being placed on the wall of the complainant's house. During cross examination PW1/complainant has stated that 10/12 times compromise talks held and during proceedings discussions were always about repairing of holes made on the walls of complainant's house during renovation and sharing of common passage and usage of staircase and no other talks were held. She has admitted that no talks on quashment of present FIR was held. She has denied that she lodged a false complaint against the accused that is why no talks regarding the allegations made in the present case were ever held in mediation proceedings. PW6/ IO Dr. P.S. Bhardwaj has also testified that during settlement talks initiated in bail matter were also in respect to repair of the property and not of apology from the accused side for misbehaving or beatings to the complainant.
17. It be observed that during investigation torn clothes have not been recovered, seized and made case properties in the present case, which goes on to suggest that no such incident as alleged had happened. During cross examination PW1/complainant has deposed that her clothes were taken away by the police officials immediately on the said date but none of the police witnesses have testified of taking or seizing the clothes of complainant. PW5 has testified during cross examination he was not handed over any torn clothes by the complainant during investigation. PW6 has testified that he was never told by the complainant that any clothes were torn by the accused persons. She never handed over any clothes to him. He denied that the complainant did not hand over the torn clothes to him as no such incident had occurred.
FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 9/13
18. In the case of Prem Singh Vs. State 1996 CRI LJ 3604 (Delhi), it has been observed that in case of failure to join independent witness benefit of doubt must be given to the accused. In the present case also there are no independent witnesses. PW2/ Smt. Suman Bansal appears to be a planted witnesses. It is noticeable that presence of Smt. Suman Bansal at the spot and at the time of alleged incident is not at all mentioned in complaint Ex PW1/A. The examination in chief of PW1/complainant also does not mention about the presence of Smt. Suman Bansal at the time of alleged incident, hence, her testimony can not be relied upon to secure the conviction of accused persons.
19. The falsity of alleged occurrence of incident is further proved during cross examination. PW1 has admitted that other family members were present at the house at the time of alleged incident but strangely none of them have been joined in the investigation, in fact there is no mention about the same in the entire record. She has admitted that the premises in which she resided consisted of 0506 houses and 2530 persons were residing there. She has admitted that none of the neighbours came at the time of incident. She denied the suggestion that none of the neighbours came on the spot for her rescue as no such incident had occurred. She has deposed that 5/6 persons came to the spot later but she did not name them. Whereas PW2 Smt. Suman Bansal has stated that at the of incident 20/25 persons from the locality came there , which is in contradiction of PW1/complainant. PW2 has named few persons , who were present the spot but PW1/complainant has not . All these facts collectively suggest that no such incident had happened. The testimonies of PWs 5 and 6 are also noteworthy in this regard. PW5 has clearly testified that the place of incident is densely populated area. He had enquired about the alleged incident from the neighbours but none of them told anything about the alleged incident. PW6, the first IO has testified that so long he remained the IO, he did not get any independent witness. He has also testified that the area where the parties reside is a thickly populated area. It also be observed that during cross examination of DWs not substantial could be elicited to demolish the plea of defence of the accused persons.
FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 10/13
20. In view of the aforesaid background, the prosecution's failure to prove the charge beyond reasonable doubt, is explicit and accused persons are accordingly given the benefit of doubt and are acquitted in FIR No. 314/2008,PS Subzi Mandi under section 354/452/34 IPC.
21. File be consigned to Record Room.
Announced in the open court on 01.06.2015 (Mona Tardi Kerketta) MM/Mahila Court, Central Distt.
Tis Hazari courts, Delhi FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 11/13 FIR No. 314/08 P.S. Subzi Mandi U/S. 452/354/34 IPC State Vs. Ashok Kr. & ors.
01.06.2015 Ld. Presiding Officer is also looking after the work of Link Court. Present : Ld. APP for the State.
All accused on bail with Ld. Counsel Sh. Tarun Arora.
Vide separate judgment announced in the open court, accused persons are hereby acquitted from the charge framed u/s 452/354/34 IPC.
Put up for furnishing of bail bonds in compliance of provision given under section 437A CrPC on 02.06.2015 (Mona Tardi Kerketta) MM/Mahila Court THC/Delhi/01.06.2015 FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 12/13 FIR No. 314/08 P.S. Subzi Mandi U/S. 452/354/34 IPC State Vs. Ashok Kr. & ors.
02.06.2015 Ld. Presiding Officer is also looking after the work of Link Court. Present : Ld. APP for the State.
All accused on bail with Ld. Counsel Sh. Tarun Arora Previous bail bonds are cancelled, sureties are discharged. Documents if any, be returned against receiving and endorsement if any, be cancelled. In compliance of provision given under section 437A CrPC, fresh personal bonds in the sum of Rs 10,000/ each with one surety in the like amount have been filed, attested and accepted. The bail bonds shall remain in force for a period of 6 months.
File be consigned to Record Room.
(Mona Tardi Kerketta) MM/Mahila Court THC/Delhi/02.06.2015 FIR NO. 314/08 PS: SUBZI MANDI STATE VS. ASHOK KR. & ORS. 13/13