Delhi District Court
State vs . Bijendra Singh on 26 June, 2019
IN THE COURT OF SHRI SUMEET ANAND
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 1051/2014
Cr C No. : 44736/16
PS : Vasant Vihar
U/s : 323 / 506 / 509 IPC
State Vs. Bijendra Singh
JUDGMENT
A Case Identification 44736/16
Number
B Name of the Sangeeta, W/o Jagvinder
Complainant
C Name of the accused & Bijendra Singh, Late Manphool
his parentage and Singh, R/o H. No. 3, Vasant Gaon,
address Vasant Vihar, New Delhi.
D Offence complained of 323 / 506 / 509 IPC
E Date of commission of 20.09.2014
offence
F Date of Institution 04.06.2015
G Offence Charged 323, 506 (II) and 509 IPC
H Plea of accused Pleaded not guilty
I Order Reserved on 03.06.2019
J Date of 26.06.2019
Pronouncement
K Final Order Acquittal
FIR No.1051/14 State Vs. Bijendra Singh Page 1 of 13
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Prosecution alleges that on 20.09.2014 at about 9:00 PM at House No. 3 Vasant Village, New Delhi the accused Bijendra Singh criminally intimidated the victim / complainant by threatening her to cause her death; and that he also caused simple hurt to the victim Dayawati, as due to his acts she fell down and sustained injuries; and that at the above-mentioned time and place the accused, intending to insult the modesty of the victim / complainant also uttered filthy abuses to the complainant.
2. This case was registered on the statement of victim / complainant Sangeeta. Her statement is on record and is EX PW 1/A. during the course of investigation the statement of complainant Sangeeta and victim Dayawati was recorded under section 164 Cr.P.C. The same is also on record. After completion of investigation, final report in the form of charge sheet under section 173(2) Cr.P.C. for the offences under section 323, 506 and 509 IPC was forwarded to the Court against the accused Bijendra for trial.
3. After taking cognizance of the offence by the court, the accused Bijendra was summoned. Pursuant to his appearance, in compliance of section 207 Cr.P.C copy of chargesheet was supplied to him. Subsequently, after perusal of the judicial file and hearing the parties, a prima facie case against the accused for commission of offence punishable under section 323, 506 and 509 IPC was FIR No.1051/14 State Vs. Bijendra Singh Page 2 of 13 found to be made out. Accordingly, on 07.12.2018 a formal charge for commission of offences under section 323, 506 (II) and 509 IPC was framed against the accused Bijendra, to which he pleaded not guilty and claimed trial. Accordingly, thereafter the matter was posted for Prosecution Evidence.
4. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, examined the following witnesses; viz.
i) PW-1 Sangeeta (complainant/Victim)
ii) PW-2 Dayawati (Victim)
iii) PW-3 Ct. Kirpal Singh (Assisted IO in investigation)
iv) PW-4 SI Sanjeev (Investigating Officer)
5. In addition to the above mentioned witnesses the prosecution, in order to prove its case against the accused beyond all reasonable doubts, also cited some more witnesses, i.e. i) Ms. Sanigdha Sarvaria, Ld. MM (recorded statements of victims u/s 164 Cr.P.C), ii) Dr. Ashish (Prepared MLC of Victim Dayawati), iii) DO/HC Mukesh (registered the FIR on the basis of Rukka). However, these witnesses were not examined during the trial and were dropped from array of witnesses, as the accused, vide his statement recorded under section 294 Cr.P.C admitted the documents prepared by the said witnesses in discharge of their duties.
6. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, also relied upon the following FIR No.1051/14 State Vs. Bijendra Singh Page 3 of 13 documents; viz.
i) Ex.C1 - FIR
ii) Ex.C2 & Ex.PW-1/B - Statement U/s 164 Cr. PC of
complainant Sangeeta
iii) Ex.C3 - MLC of victim Dayawati
iv) Ex.PW-1/A - Statement of complainant Sangeeta recorded
by police
v) Ex.PW-1/C - Site Plan
vi) Ex.PW-1/D - Paper where the complainant Sangeeta have
reduced in writing the abusive words hurled by accused.
vii) Ex.PW-3/A - DD No.96-B, Dated 20.09.2014
viii) Ex.PW-4/A - Rukka
ix) Ex.PW-4/B - Application moved to the court for recording statement of complainant u/s 164 Cr. PC
x) Ex.PW-4/C - Statement U/s 164 Cr. PC of victim Dayawati
xi) Ex.PW-4/D - Arrest Memo of accused
7. After prosecution evidence the statement of accused Bijendra was recorded u/s 313 Cr.P.C wherein all incriminating evidences led against him during the trial by the prosecution witnesses were put to him, affording him an opportunity to give his explanation, if any. The accused pleaded his innocence and claimed that no suchy incident happened. He also claimed that there is already a dispute between his family members and the complainant. However, the accused preferred not to lead any defence evidence. Accordingly the matter was posted for final arguments.
FIR No.1051/14 State Vs. Bijendra Singh Page 4 of 138. I have heard learned APP for the State and learned counsel for the accused at length. I have also carefully perused the entire judicial record and carefully appreciated the evidence lead by the prosecution.
9. Accused Bijendra has faced trial for commission of offences under section 323, 506 (II) and 509 IPC. Out of all the witnesses examined, it is only the testimony of PW-1 Sangeeta and PW-2 Dayawati, along with their statements recorded under section 164 CR.P.C which is crucial to decide this case. All other witness are formal in nature and are related to the investigations, or otherwise formal in nature such as Doctor, DD writer etc.
10. The complaint of the complainant / victim Sangeet i.e. EX PW 1/A, based on which the present FIR has been registered, states that, on the date of incident i.e. 20.09.2014 the male members of family, such as husband, father-in-law and son of the complainant were not at home as they had gone to Vasant Kunj and she and her mother- in-law (Victim Dayawati) were alone at home. That the accused, who is their relative (Chachiya Sasur), who lives nearby, came to the house of the complainant / victim and started abusing and thereafter left from there. Complainant also claims that due to this act of the accused she got afraid and she called police at 100 number and thereafter the police reached the spot of incident and in the intervening period the mother in law of the complainant Dayawati felt sick and she was taken to Safdarjung Hospital where FIR No.1051/14 State Vs. Bijendra Singh Page 5 of 13 she was admitted. In her complaint the complainant demanded legal action against the accused.
11. It is pertinent to note that, on the basis of the complaint made by the complainant EX PW 1/A, the FIR in the instant case was registered only for commission of offence under section 509 IPC. However, the final report, in the form of chargesheeet, was filed by the Investigating Officer also levelling additional offences, i.e. offences under section 506 and 323 IPC. These additional sections were added based on the statements made by the complainant Sangeeta and Victim Dayawati before the Learned magistrate, on 24.09.2014 i.e. four days after the alleged incident, while recording of their statements under section 164 Cr.P.C.
12. A combined reading of the complaint EX PW 1/A, based on which the FIR was registered and the statement made by the complainant Sangeeta and Victim Dayawati before the learned Magistrate under section 164 Cr.P.C, on 24.09.2014 i.e. four days after the alleged incident, clearly show significant improvements in the initial statement / complaint based on which the FIR was registered.
13. It is the settled proposition of law that the FIR need not be an encyclopedia of the facts narrating each and every minute details of events. However, it is also the settled proposition of law that FIR needs to disclose necessary facts disclosing the commission of a particular offence.
14. The FIR cannot be shorn of peculiar fact which go on to show the FIR No.1051/14 State Vs. Bijendra Singh Page 6 of 13 commission of any particular offence. And, in cases where the FIR is short of peculiar facts leading to showing of any particular offence, which lateron is claimed to have been committed then the reason of non-mentioning of such facts in the FIR needs to be sufficiently explained; and this onus rests upon the prosecution, which it has to discharge during the trial.
15. After the registration of FIR and after recording of statements of Victims under section 164 Cr.P.C, the victims have added upon so much additional facts to the initial statement made, based on which the FIR was registered, that two additional sections were attracted and added in the Final report.
16. The facts alleged by the victims in their statements recorded under section 164 Cr.P.C based on which sections 323 and 506 IPC have been added in the Final Report do not find even a remote / slightest of the mention in the FIR, nor even impliedly. on the basis of
17. At the time of registration of the present FIR, as per the allegations made by the complainant in her complaint, based on which the present FIR was registered, sections 323 and 506 IPC do not get attracted at all.
18. It is an undisputed question of fact that there is a pre-existing dispute between the complainant and the accused. This fact has been stated by the complainant in her evidence and the same has also been claimed by the accused in his statement recorded under section 313 Cr.P.C.
FIR No.1051/14 State Vs. Bijendra Singh Page 7 of 1319. The contrast between the initial complaint of the complainant, based on which the present FIR was registered and the statement made by the victims under section 164 Cr.P.C before the Learned Magistrate deserves to be appreciated in the light of the fact that there is admitted prior enmity between the parties and that the statement under section 164 Cr.P.C. has been recorded four days after the alleged incident.
20. Moreover, a perusal of testimony of PW-1 Sangeeta and PW-2 Dayawati recorded before the court shows that they at once did not support the case of the prosecution in its entirety. The learned APP for the State had to put leading questions to the witness to elicit the full testimony.
21. The entire alleged incident occurred at 09:00 PM in the night. The victims and the accused reside in near vicinity. They are relatives as well as neighbors. As per the statement of the victims their other relatives also reside nearby. The entire dispute between the parties, as stated by the victims in their statements is relating to right of passage and parties, owing to disputes put their respective lock on the gates restricting the passage. However, no relative residing nearby, or any other neighbor has not been examined by the prosecution to substantiate its case.
22. The investigating officer (PW-4) in his testimony has categorically stated that he did not make any attempt to make any enquiry from any of the neighbors. In the most humble opinion of this court there FIR No.1051/14 State Vs. Bijendra Singh Page 8 of 13 was sufficient occasion for the investigating officer to join in the independent witnesses, however, he even did not make any attempt to join any such independent witness.
23. In the absence of any independent public witness joined in the investigation, particularly when one could have been joined; or where no attempt at all was made by the investigating authority to join any independent witness, the burden upon the prosecution increases multifold to rule out all possibilities of false implication of the accused. Hon'ble High Court of Punjab & Haryana in the case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69 observed;
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts FIR No.1051/14 State Vs. Bijendra Singh Page 9 of 13 taken together make the prosecution case highly doubtful..."
24. The complainant has alleged that the accused hurled filthy abuses upon her and upon the other victim, who is her mother-in-law. For hurling of filthy abuses the accused has been charged with and he has faced trial for commission of offence under section 509 IPC.
25. However, the complainant (PW-1) neither in her complaint, nor in her statement recorded under section 164 Cr.P.C; and PW-2 also in her statement recorded under section 164 Cr.P.C has not mentioned the actual abuses allegedly hurled by the accused to them.
26. Although PW-1 in her testimony recorded before the court stated the abuses hurled in writing on a paper, which is on record and is exhibited as EX PW 1/D, but PW-2 stated in her testimony recorded before the court that she does not remember the abuses hurled by the accused.
27. In the absence of specific corroboration about the actual abuses hurled by PW-2, as claimed to have been hurled by PW-1, especially in the light of the fact that prior to the deposition in court the exact abuses hurled were not revealed either in the complaint, or in the FIR, or in the statement of both the witnesses recorded under section 164 Cr.P.C this court is of the humble opinion that it would not be safe to rely upon EX PW 1/D stating the abuses allegedly hurled by the accused, as claimed by PW-1.
28. Both PW-1 and PW-2 in their testimonies recorded in the court have FIR No.1051/14 State Vs. Bijendra Singh Page 10 of 13 alleged that the accused came to their home with a hammer. However, no hammer has been recovered by the police at the instance of the accused.
29. Complainant has also alleged that the accused threatened to kill them. For threatening the victims the accused has been charged with and he has faced trial for offence under section 506 (II) IPC.
30. The complainant (PW-1) in her testimony recorded before the court has also alleged that the accused threatened to kill the victims. However, PW-2, who was present with PW-1 during the entire incident has categorically denied in her testimony recorded in the court that any threat to kill was extended by the accused to the victims.
31. Hence with respect to extending of threats to kill by the accused to the victims there is an apparent contradiction within the testimony of two sole eye-witnesses and the victims themselves. Hence, it shall not be safe to act upon the un-coroborated testimony of only one witness, particularly in the light of admitted previous enmity between the parties.
32. The accused has also been charged with section 323 IPC and he has faced trial for the same. MLC of victim Dayawati (PW-2) is on record wherein, except for some tenderness no injury on her person. The MLC records, "Physical assault after some quarrel and was pushed and fall on floor ." However, neither the complainant (PW-1) nor the victim (PW-2) either in their testimony recorded in FIR No.1051/14 State Vs. Bijendra Singh Page 11 of 13 the court, nor in their statements recorded under section 164 Cr.P.C have anywhere stated that the accused pushed PW-2 (Dayawati). There is not even an allegation anywhere that the accused even touched PW-2 (Dayawati).
33. Moreover, PW-1 in her cross examination stated that, "the incident occurred at about 09:00 PM. My mother in law got unconscious at about 09:30 PM, at that time I had already made call to the police. PW-1 further in her cross-examination also stated that. "it is correct that my mother in law got unconscious due to the stress of the incident."
34. Furthermore, PW-2 (Dayawati) in her testimony recorded before the court, during the leading questions being put by the learned APP for the State categorically stated that, "it is wrong to suggest that accused had threatened to kill us or that accused came with brick and stated that 'sab ko khatam kardoonga and vijender ke wajeh se main neeche gir gai aur behose ho gai' ".
35. Hence, from the testimony of PW-1 and PW-2 it is manifest that PW-2 (Dayawati) did not suffer any injury at the hands of the accused.
36. Furthermore, PW-1 and PW-2 in their statements recorded under section 164 Cr.P.C have alleged that they had recorded the entire incident of the accused coming to their home and hurling filthy abuses to them on a mobile phone. However, no such mobile phone has been seized by the investigating officer and it has not been FIR No.1051/14 State Vs. Bijendra Singh Page 12 of 13 produced in the court during the trial. Had there been any such recording in a mobile phone then there is no occasion, alleged by the complainant at any time during the trial, whereby the same had been intentionally withheld during the trial. Non-production of any such mobile phone having any such video as claimed by the complainant only suggests that no such video exists.
37. Based on the abovedone discussion, this court is of the firm opinion that the case of the prosecution suffers from various doubts, the benefit of which has to be extended to the accused; and that considering the existing enmity between the parties, the possibility of false implication of the accused by the complainant cannot be ruled out.
38. Accordingly, accused Bijendra is hereby acquitted for offences Digitally signed under section 323 and 506 (II) and 509 IPC. SUMEET by SUMEET ANAND ANAND Date:
2019.06.29 17:29:26 +0530 Announced in the Open (SUMEET ANAND) Court on 26th June, 2019 MM-07/PHC/New Delhi FIR No.1051/14 State Vs. Bijendra Singh Page 13 of 13