Delhi District Court
(1) A Breach Of Protection Order vs State Of Haryana" Reported As Cc on 9 May, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE (MAHILA COURT) -02
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
Presided by : Ms. Sonam Singh
State v. Kishan Chand and others
FIR No. 193/13
Police Station : Subzi Mandi
Under Section: 31 of DV Act
CIS No. 298140/16
Date of institution : 21.04.2014
Date of pronouncement: 09.05.2018
JUDGMENT
a) Serial number of the case : 42/2/14
b) Date of commission of : 07.11.2008 offence
c) Name of the complainant : Smt. Poonam
d) Name, parentage and : 1.Kishan Chand address of the accused S/o Late Sh. Jagdish Chand
2. Santosh W/o Late Sh. Jagdish Chand
3. Sheetal W/o Sh. Nand Kishore
4. Nand Kishore S/o Late Sh. Jagdish Chand All R/o H.No. 167, Sunlight Colony No. 1, Ashram, Delhi-110014 State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 1 of 14
5. Pushpa W/o Sh. Sunil R/o H.No. 6278, Gali Ravidass, Nabi Karim, Pahar Ganj, Delhi.
e) Offence complained of : Section 31 of the Protection of Women from Domestic Violence Act, 2005 (in short "D.V. Act")
f) Plea of the accused : Accused persons pleaded not guilty
g) Final order : Accused persons stand acquitted of the offence punishable under Section 31 of D.V. Act
h) Date of final order : 09.05.2018 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, the accused persons, namely, Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa are being acquitted of the offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (in short "DV Act") in this case for the reasons mentioned below.
CASE OF THE PROSECUTION
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that the accused persons, namely, Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa in furtherance of their common intention, committed breach of protection order dated 13.10.2008 passed by Ms. Kiran Bansal, the then Ld. MM by not allowing the complainant, namely, Smt. Poonam to enter her shared household initially and only after intervention of police she was allowed to enter. It is also alleged by the State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 2 of 14 prosecution that on 07.11.2008, the accused persons Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa threw her out of the shared household and thereby committed an offence under Section 31 of D.V. Act.
3. The investigation was done by the IO SI Anukul, who filed the police report under Section 173 of the Cr. P.C. in respect of the offence punishable under Section 31 of D.V. Act.
COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 05.05.2014 and on the said date itself, the accused persons were supplied with the copies of police report and documents.
NOTICE
5. Vide the order dated 11.07.2014, the learned predecessor of this court framed the notice against the accused persons Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa for the offence punishable under Section 31 of D.V. Act, to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. Thereafter, the matter was listed for prosecution evidence.
(i) Prosecution Witnesses In order to prove and substantiate its case, the prosecution in all has examined Seven witnesses, namely:
State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 3 of 14 Sr. Designation and Name Role in the present case No of the Witness
1. PW 1 Smt. Poonam Complainant.
2. PW 2 Sh. Nanak Chand Father of the complainant
3. PW 3 WCt. Avina Police official, who joined the investigation with the investigating officer
4. PW 4 HC Chander Pal Duty officer Singh
5. PW 5 SI Anukul Investigating officer of the present case
6. PW 6 Sh. Rahul Rawat Witness who brought the record of case no. 6/1/10, PS:
Subzi Mandi dated 19.09.2013 bearing goshwara no.217/2013
7. PW 7 HC Sanjay Kumar Reader of SHO PS New Friends Colony, who brought the summoned record i.e. order no. 827-28/HAR/SED dated 17.01.2013.
(ii) Documents on record:
The prosecution witnesses relied on the following documents:
Sr. Exhibits/ Nature of documents
No Marks
1. Ex.PW1/A Arrest memo of accused Kishan
Chand
2. Ex.PW1/B Personal search memo of accused
Kishan Chand
3. Ex. PW1/C Electricity bill
4. Ex. PW2/A Arest memo of accused Nand Kishore
5. Ex.PW2/B Arrest memo of accused Santosh
6. Ex. PW2/C Arrest memo of accused Sheetal
7. Ex. PW3/A Personal search memo of accused
State v. Kishan Chand
FIR No. 193/13 PS: Subzi Mandi Page 4 of 14
Santosh
8. Ex. PW3/B Personal search memo of accused
Sheetal
9. Ex. PW4/A Copy of the FIR
10. Ex. PW4/B Certificate under Section 65B
Evidence Act
11. Ex. PW5/A Order dated 04.09.2013 passed by
Ms. Mona Tardi Kerketta, Ld. MM,
THC, Delhi, learned predecessor of
this court
12. Ex. PW5/B Seizure memo of photocopy of
document
13. Ex. PX Copy of FIR No. 193/13
14. Ex. P1/1 to 2 Copy of order no. 827-28/HAR/SED
dated 17.01.2013 passed by ACP,
South East District, New Delhi in
respect of destruction of old records of
PS New Friends Colony upto
31.12.2010
15. Ex. P2 (OSR) Copy of DD No. 56 B dated
24.01.2013
Thereafter, prosecution evidence was closed vide order dated 13.01.2016. The court will discuss the testimonies of the said witnesses later i.e. at the time of appreciation of evidence.
THE STATEMENT OF THE ACCUSED PERSONS UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED PERSONS
7. The accused persons in their statements under Section 313 Cr.P.C. recorded on 19.02.2018 denied the entire allegedly incriminating evidence put to them.
Accused Kishan Chand stated that he is innocent and has been falsely implicated in the present case by the complainant. He further stated that 12 years had been passed since his marriage but the complainant had stayed with him only for 02-03 months, since she could not adjust in the matrimonial house. Further, he stated that she was of quarrelsome nature and did not want to live with him. He also stated that the complainant had filed the present complaint in order to extort State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 5 of 14 money from him and to cause harassment to him and his family members. The other accused persons, namely, Santosh, Sheetal and Nand Kishore stated that they were residing separately in a separate floor and did not torture, harass or give beatings to the complainant on account of demand of dowry at any point of time. Further, the accused Pushpa stated that she never tortured, harassed and beaten the complainant on account of dowry at any point of time, since she was living in her matrimonial house prior to the marriage of the complainant with the accused Kishan Chand.
DEFENCE EVIDENCE
8. An application under Section 315 Cr.P.C. was filed on behalf of accused Kishan Chand, which was allowed vide order dated 16.03.2018. Thereafter, the matter was listed for defence evidence. The accused Kishan Chand stepped into the witness box as DW-1. The court will discuss his testimony at the time of appreciation of evidence.
FINAL ARGUMENTS
9. The Court heard the final arguments on 25.04.2018.
ANALYSIS AND FINDINGS
10. I have heard the submissions of Sh. Vikas, Learned Assistant Public Prosecutor for the State as well as that of Sh. Pramod Srivastava, Ld. counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
11. In order to decide the present case, it is important to refer to the provision in question i.e. Section 31 of DV Act. The said section is reproduced below:
"31. Penalty for breach of protection order by respondent.
State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 6 of 14 (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either de-
scription for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both."
12. Let us now appreciate evidence on record and see whether the ingredients of the offence punishable under Section 31 of D.V. Act against the accused persons are made out or not.
13. The brief background of the case is necessary to be discussed. The present FIR was registered on the basis of an application filed on behalf of the complainant under Section 31 of D.V. Act. In the said application, it was stated by the complainant, Smt. Poonam that a complaint case 67/6/08 under Section 12 D.V. Act was decided vide order dated 13.10.2008, by the then Ld. Kiran Bansal, Ld. M.M., Delhi, in which all the accused persons were given the following directions: -
(i) They are directed to allow entry of applicants (complainant and her son) into their home at Sunlight Colony, Ashram, Delhi i.e. matrimonial home of applicant no. 1.
(ii) They are restrained from dispossessing applicants from her said matrimonial home.
(iii) They are restrained from having any communication, contacts and causing any hindrance to the applicant no. 1 from accessing her all kinds of movable and immovable properties, things etc. and living applicants peacefully.
(iv) The respondent no. 1 Kishan Chand is also directed to pay applicant no. 1 a sum of Rs. 2000/- (for herself and her child's maintenance) per month from the date of filing of said complaint case under Section 12 PWDV Act, 2005, before this Hon'ble Court.
14. Further, in the said application, the complainant stated that after getting the certified copy of the said order, she went to her matrimonial house but all the State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 7 of 14 accused persons violated the protection order, as they did not allow her to enter the said house and thereafter, she was finally able to enter only with the intervention of SHO PS New Friends Colony, Delhi. It was also stated by the complainant in the said application that on 25.12.2008, the accused Santosh, who is the mother-in-law of the complainant taunted her that although she has been granted relief by the court yet they would not allow her to stay for long by making her life miserable, which will compel her to leave the house on her own and subsequently, they would get the accused Kishan Chand remarried. It is also stated that the complainant remained silent yet the accused Santosh got angry and demanded her to bring money from her parents in lieu of the rent to be paid for her stay at the shared household. The complainant replied to her that due to her poor financial condition she is not in a position to give money to her and also since a lot of money was incurred in her marriage, wherein a lot of dowry was given. The accused Santosh got angry and started to quarrel with her and accused Sheetal and Pushpa, who are the sisters-in-laws of the complainant joined accused Santosh and slapped the complainant.
15. Further, it was stated that at night, the accused Santosh, Sheetal and Pushpa provoked the accused Kishan Chand and Nand Kishore, who is the brother-in-law of the complainant against the complainant. As a consequence of such instigation, the accused Nand Kishore abused the complainant and accused Kishan Chand kicked her in the stomach and abused her by saying, "saali jab se aayi hain, hum chain se nahi rah paiye hain, achi bhali nikal di thi, saali court se order le aayi. Par tujhe pata nahi, hum court ko bhi kuch nahi samajhte, isi liye court case mein nahi gaye, saali paise kuch laati nahi, tera kharch kuan uthaiga. Bahut din yaha rah li, chal ab yaha se nikal". Thereafter, the accused Nand Kishore held the complainant by her hair and all of them dispossessed her and her son from the matrimonial house, after handing over a copy of an electricity bill for the month of October, 2008 payable on 07.11.2008 for an amount of Rs. 5,910/- and threatened her not to come to the matrimonial house till she brings money from her parental house for payment of the aforesaid bill.
State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 8 of 14
16. On the aforesaid application of the complainant, the then Ld. MM Ms. Mona Tardi Kerketta, vide order dated 04.09.2013 directed the SHO PS Subzi Mandi was to register an FIR against all the accused persons for committing the breach of protection order dated 13.10.2008 and investigate the matter as per law.
Lapses, material contradictions and improvements in the testimony of the complainant PW-1 Smt. Poonam
17. It is pertinent to note that the star witness/complainant/ Smt Poonam had stepped into the witness box as PW1. Further, it is observed that there are various contradictions, lapses and material improvements which are apparent between the application u/s 31 D.V. Act made by the complainant and her testimony before the court, which makes the story of the prosecution doubtful.
18. In the entire application under Section 31 D.V. Act and even in her deposition, PW-1/complainant Ms. Poonam failed to mention as to the date when she was not allowed to enter the shared household and who had stopped her from entering the shared household and in which manner she was stopped.
19. Similarly, in her entire testimony, she also failed to mention the date and time when she was thrown out from her matrimonial house. Although, in the said application she had mentioned that on 25.12.2008, she was thrown out from her shared household yet the same does not find any mention in her examination-in- chief . It was only in her examination by Ld. APP for the State, who had sought permission to cross-examine her as she was not telling complete facts, she deposed that in the month of December, 2008, she went to live at her matrimonial house in compliance of protection order but the accused persons forcibly threw her out of the matrimonial house. Thus, it is well apparent that allegations which have been made by the complainant in her testimony are bereft of the date and time and she has also failed to describe the sequence of events which led to her from being State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 9 of 14 dispossessed from the shared household. It is settled law that statements which are omnibus in nature, sans particulars of the time and the date, lack in credibility and should not be relied upon.
20. In this regard, Section 154 of the Indian Evidence Act, 1872 (in short "IEA") is relevant, it enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. It is settled legal position that the evidence of such witnesses, who have been cross-examined cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof , if corroborated by other reliable evidence. In this regard the observations of the Hon'ble Supreme Court of India in the case of Bhajju v. State of M.P., (2012) 4 SCC 327 : (2012) 2 SCC (Cri) 440 :
2012 SCC Online SC 261at page 341 are relevant, the same are reproduced below:
"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution ver- sion of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains ad- missible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-exami- nation by the adverse party."
21. In view of the aforesaid case law, it is seen that although the allegation of the complainant not being able to enter her shared household or the fact of her being dispossessed have been mentioned by her in her cross-examination by the Ld. State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 10 of 14 APP for the State yet the same have not been corroborated by any other evidence.
22. It is also pertinent to note that she failed to support the allegation mentioned by her in the said application under Section 31 D.V. Act that she had made an application to the SHO PS New Friends Colony, Delhi for taking steps for compliance of the said protection order.
23. Although, she deposed that she was forcibly thrown out by all the accused persons from the matrimonial house yet she failed to mention the role of each accused persons in dispossessing her from the shared household. Neither in testimony nor in her statement to the police which is Ex.PW1/D1 the role of the accused persons as to how they dispossessed her from the shared household has been mentioned. It is seen that only in her application under Section 31 D.V. Act, she has stated that the accused Nand Kishore had abused her and accused Kishan Chand kicked her stomach and also abused her by stating that "saali jab se aayi hain, hum chain se nahi rah paiye hain, achi bhali nikal di thi, saali court se order le aayi. Par tujhe pata nahi, hum court ko bhi kuch nahi samajhte, isi liye court case mein nahi gaye, saali paise kuch laati nahi, tera kharch kuan uthaiga. Bahut din yaha rah li, chal ab yaha se nikal" . But in her testimony, she simply made a vague allegation by stating that she was given beatings by all the accused persons and that they all abused her in bad language and only supported the allegation that her husband accused Kishan Chand had kicked her on her stomach. Though in her application under Section 31 of DV Act, she has stated that she had made a complaint to the SHO PS New Friends Colony, Delhi dated 24.02.2009, yet the said application was not exhibited. No explanation has been given as to why the said complaint was not exhibited and it is settled law that any document which is not brought in evidence as an exhibit or mark, cannot be read.
24. In her examination-in-chief, the complainant also made improvements by testifying that not only her but even her child was given beatings by the accused persons. However, no MLC was filed to show on record either of the complainant State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 11 of 14 Ms. Poonam or her child to show that they had suffered injuries. She also made an improvement by stating that accused persons used to threaten to kill her and her son.
25. It is also observed that the prosecution also did not bring any other evidence to show that she was enjoying possession of the shared household at any time and that she was subsequently dispossessed.
26. In view of the various contradictions, material lapses and improvements in the testimony of the complainant/Ms. Poonam, she cannot be said to be a trustworthy witness.
Testimony of other material witness i.e. father of the complainant/ PW-2 Sh. Nanak Chand
27. The father of the complainant, Sh. Nanak Chand stepped into the witness box, as PW-2 , however, there is not a single allegation made by him to suggest that the complainant was not allowed to enter her shared household or that she was forcibly thrown out from the shared household by the accused person. Furthermore, he is an interested witnesses and it is settled position of law that Courts must be cautious and careful while weighing the evidence of witnesses who are partisan or interested.
Non-joinder of independent public witnesses
28. It is obvious that when the alleged violation of the said protection order had taken place, other people nearby would have gathered yet the prosecution did not examine any other independent witness. Thus, despite availability, no independent public witness to the alleged incident has been cited or examined by the prosecution. The same is a circumstance which casts a doubt on the prosecution story. In case titled as "Roop Chand Vs. State of Haryana" reported as CC State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 12 of 14 Cases 3 (HC), it was held that, " Where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected."
29. In the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that: "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
30. In the aforesaid circumstances, this Court is of the opinion that the prosecution has failed to prove its case against the accused, Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa. Accordingly, the accused persons, Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa are acquitted of the offence punishable under Section 31 of DV Act.
Conclusion
31. In light of the above discussion, in the considered opinion of this Court, the prosecution has failed to prove its case against the accused persons, namely, Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa beyond reasonable doubt. Accused Kishan Chand, Santosh, Sheetal, Nand Kishore and Pushpa are entitled to the benefit of doubt. They are hereby acquitted of the offence punishable under Section 31 of DV Act.
State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 13 of 14
32. File be consigned to Record Room.
Digitally signed by SONAM Announced in open Court on 09.05.2018 SONAM SINGH SINGH Date: 2018.05.09 16:17:47 +0530 (SONAM SINGH)
Metropolitan Magistrate (Mahila Court)-02, Central District, Tis Hazari Courts, Delhi.
09.05.2018 State v. Kishan Chand FIR No. 193/13 PS: Subzi Mandi Page 14 of 14