Delhi District Court
State vs . Deepak & Ors. on 28 October, 2014
IN THE COURT OF MS. ANKITA LAL: METROPOLITAN MAGISTRATE01:
MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI
STATE VS. DEEPAK & ORS.
FIR No. : 66/2009
U/S : 354/323/451/34 IPC
PS : Mehrauli
Case ID : 02403R0200482010
JUDGMENT
a) Sl. No. of the case : 84/2 b) Date of commission of offence : 16.02.2009 c) Date of institution of the case : 05.06.2010 d) Name of the Complainant : Ms. Hemlata
e) Name & address of the :1. Deepak Kumar S/o Sh. Netra
accused persons Pal, R/o H. No.551, Ward No.
5, Mehrauli, New Delhi.
2. Hari Kumar S/o Sh. Madan
Lal R/o No.B49, Gali No.3,
Shiv Vihar, Karawal Nagar,
New Delhi.
3. Netra Pal S/o Sh. Chhida
Singh R/o H. No.551, Ward
No.5, Mehrauli, New Delhi.
f) Offence complained of : 323/354/451/34 IPC.
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 13.10.2014.
i) Date of Judgment : 28.10.2014.
j) Final Order : Acquittal.
FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 1 of 18
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused persons are facing trial in this case for the offence punishable u/s 323/354/451/34 IPC. The allegations are that on 16.02.2009, one of the neighbourers of the complainant taunted her that engagement of her nephew has been failed. On which, wife of the accused Deepak namely, Shanti, and mother in law of the said accused, namely Reshma, started abusing her in filthy language and tried to beat her. Further, it is alleged that at about 9:00pm, when the complainant went to the room of her motherinlaw for giving her dinner, accused Netra Pal came inside the room and caught hold of complainant and abused her and also hit on her breast with his hand and tore her blouse. She further alleged that accused Deepak had already called his mother and brother, namely, Hari Kumar from Karawal Nagar. When the children of the complainant tried to save her, then accused Deepak and Hari Kumar had beaten her children by legs and fists blows. She further alleged that accused Hari Kumar had mercilessly beaten her by legs and fist blows and also threatened her with dire consequences. She further deposed that her husband reached at the spot and tried to rescue her, on which accused Deepak, Hari Kumar and Netra Pal started beating her husband by legs and fist blows and also slapped him. Thereafter, complainant gave a complaint to police officer Ex.PW1/A. Later, an FIR was lodged by the complainant on 17.02.2009 in P.S. Mehrauli, which resulted in the present charge sheet.
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2. During investigation, the accused persons were arrested and site plan was prepared. Statements of witnesses were recorded u/s 161 Cr.P.C.
3. After completion of investigation, chargesheet was filed in the Court on 05.06.2010. The court took cognizance on the same day. Copy of the chargesheet was supplied to the accused persons u/s 207 Cr.P.C.
4. A prima facie case for the offences punishable u/s 323/354/451/34 IPC was made out against all the accused persons. A notice of accusation was accordingly served upon them to which the accused persons pleaded not guilty and claimed trial.
5. In order to prove its case, 6 witnesses were examined by the prosecution.
Out of 6 witnesses, 4 are the public witnesses and remaining 2 are police witnesses.
Public witness:
6. The four public witnesses examined by the prosecution are PW1 Hemlata (complainant herself) PW2 Naveen Kumar, PW3 Kamal Sen (neighborers of the complainant), and PW4 Dr. Vijay Singh.
7. PW1 Hemlata has reiterated the version of her complaint Ex.PW1/A. She further deposed that she showed the place of incident to the police officials and police officials prepared the site plan at her instance. She had also produced her torn pink colour blouse to the police, which was seized vide seizure memo Ex.PW1/B. She further deposed that accused persons were arrested and their personal search was conducted in her presence, and she correctly identified the accused persons in the court. The witness has also identified the case property i.e. torn blouse as Ex.P1. FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 3 of 18
8. During cross examination by the Ld. defence counsel, the witness has stated that house of the accused persons is adjacent to her house. She has admitted it to be correct that the engagement of her jeth's son had been broken which had been mediated by the accused persons. She had further stated that in the day time on the day of the incident, the quarrel had taken place with the wife of the accused Deepak, namely Shanti and wife of Netra Pal, namely, Reshma. She had further stated that they had only abused her and not hit her in the day time. She had further stated that at the time of incident in the night, no one was present in the room of her motherinlaw except her, and first accused Netra Pal had come alone and thereafter accused Deepak alongwith his motherinlaw and brotherinlaw had come. She had further stated that she did not shout for help as the accused persons had suddenly attacked her. She had further stated that her son had come after hearing her shouting. She had denied that she had herself torn her blouse and that the present FIR has been falsely lodged only to take revenge of the quarrel with the wife of accused persons in the day time. She had further denied that accused Netra Pal had gone to marriage at Lado Sarai at the time of incident. She had further denied all other formal suggestions.
9. PW2 Naveen Kumar had deposed that he was neighbour of the accused.
Accused Deepak mediated a marriage of his cousin brother but same could not be solemnized. He further deposed that accused Deepak, his wife and mother of accused, namely Reshma had abused his mother. He further deposed that on the day of the incident at around 9:00pm Netra FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 4 of 18 Pal, his son Deepak Kumar and Hari Kumar trespassed in their house. He further deposed that accused Netra Pal caught hold of his mother and had also beaten his mother and had torn her blouse. He further deposed that all accused persons had also beaten him by fist and legs and his father Kamal Sen also came to spot and tried to rescue, but all the accused persons had beaten his father as well by first blows and legs. However, they managed to rescue themselves and ran away to PS and police took them to hospital.
10. During cross examination by the Ld. defence counsel, the witness had stated that on the day of incident only few people were gathered and his other brother and sisters were upstairs. He further stated that first his mother went to PS, after that the police arrived and thereafter, he alongwith his father and mother went to P.S.
11. PW3 Kamal Sen had deposed that when he arrived at the spot he tried to rescue his son and wife, but all the accused persons had beaten him by fist blows and legs and his wife ran to PS and he alongwith his son also reached there. The police persons got them medically examined and recorded statement of his wife in PS and got the case registered.
12. During cross examination by the Ld. defence counsel, the witness has stated that in the morning on the day of the incident, a quarrel between his wife and accused Deepak's wife, namely Shanti and Netra Pal's wife namely Reshma, took place in his presence. He also deposed that neighbourers had gathered outside his house when he reached in the evening and no neighbor told him what had happened. He further deposed FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 5 of 18 that he came to know that his wife had gone to PS when he saw her coming back home with the police officials and he had not seen the incident when the accused persons had beaten his wife.
13. PW4 Dr. Vijay Singh was called as a formal witness to depose regarding MLC's of the complainant, her husband and her son. He deposed that he examined complainant vide Ex.PW4/A, bearing his signature at point A, and she had complained of pain in her abdomen. He further deposed that no other external injury was found on her person and he also examined Kamal Sain and Naveen vide Ex.PW4/B and Ex.PW4/C, bearing his signature at point 'A'.
14. During cross examination by the Ld. defence counsel, the witness admitted that no scratch marks were found on the person of either of the three persons named in the examination in chief as it is not mentioned in the medical report.
Police Witness:
15. PW5 Ct. Sajjan Kumar, had deposed that on 16.02.2009, he was on emergency duty and at around 9:15am, complainant Hemlata came to PS alongwith her husband and son and she informed ASI Raj Singh that she was beaten up by three persons and her clothes were torn by them. He further deposed that on directions of ASI Raj Singh, he took Hemlata, her husband and son for medical examination and thereafter brought them back to PS. He further proved arrest memos of accused persons, i.e. Ex.PW1/C, PW1/D and Ex.PW1/E, and also their personal search memos Ex.PW1/F, Ex.PW1/G and Ex.PW1/H. FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 6 of 18
16. During cross examination by the Ld. defence counsel, the witness has stated that spot of incident is situated at a distance of 0.5km from PS and he reached at the spot at around 2:00am. He further deposed that complainant did not come to PS between 8:00pm to 9:15pm and mother inlaw of the complainant was present on the spot when they reached there. He further denied all formal suggestions put to him.
17. PW6 Retd. SI Raj Singh, had deposed that on 16.02.2009 he was on emergency duty and at around 9:15pm, complainant Hem Lata reached in PS wearing a torn blouse alongwith her husband and son in injured condition. He enquired complainant and recorded her statement Ex.PW1/A. He directed Ct. Sajjan Kumar to take the complainant, her husband & son for medical examination. On their return, he alongwith complainant, her husband and son reached at spot i.e. H. No.549, Ward no.5, Mehrauli, New Delhi. He prepared the rukka which isEx.PW6/A, bearing his signatures at point A and got the FIR registered. He also prepared the site plan Ex.PW6/B and seized the torn blouse of the complainant vide seizure memo Ex.PW1/B. Accused persons were arrested and their personal search was conducted, all of which bears his signature at point Y.
18. During cross examination by Ld. defence counsel, the witness has stated that he did not record statement of motherinlaw of complainant. He also stated that he himself had seen the injuries of complainant, her husband and her son when they reached at PS. He further deposed that he had enquired the motherinlaw of complainant about the incident but she was FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 7 of 18 not prepared to give any statement. He further deposed that it is correct that accused Netra Pal also gave him a complaint for the same incident on the same day after his arrest. He admitted complaint dated 16.02.2009, Ex.PW6/D1. He further admitted that he had not done any inquiry regarding the complaint Ex.PW6/D1 given by accused Netra Pal. He further denied the suggestion that he had tutored the complainant to give the incident reported at night in the FIR and denied all other formal suggestion put up him.
19. Accused persons had admitted the factum of registration of FIR and therefore, PW DO/HC Liyaqat Ali was dropped from the list of witnesses.
20. Thereafter, PE was closed. Statements of accused persons U/s 313 Cr.P.C r/w sec. 281 Cr.P.C. were recorded wherein all accused persons have stated that the complainant had made false accusation for causing disgrace and humiliation to them with a view to take revenge because the marriage of son of Rohtas had got broken due to demand of motorcycle and Rs.50000/cash in the marriage. Accused Deepak deposed that scuffle took place in the morning between the complainant and his mother and Bhabhi. It is further recorded that since no offence could have been made against the lady members, they were falsely implicated in the present case. They further stated that they have been falsely implicated in this case.
21. In order to prove their defence, accused persons have examined DW1 Ct.
Sandeep and DW2 Shanti Devi in defence evidence.
FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 8 of 18 DEFENCE EVIDENCE:
22. DW1 Ct. Sandeep had deposed that he could not bring original documents as the same has already been destroyed/weeded out vide office order no. 17201820/V/HAC/SD dated 25.04.2014, vide Ex.DW1/A.
23. Ld. APP for State was given opportunity to cross examine the witness. He was cross examined as nil.
24. DW2 Smt Shanti Devi, had deposed that she alongwith her husband had arranged marriage proposal for Sonu S/o Rohtash with her cousin sister, namely, Kamlesh. She further deposed that as Rohtash demanded a huge amount in dowry, the said marriage proposal could not be fructified and due to this reason, Rohtash and his family were having grudge against them. She further deposed that on 16.02.2009, in the noon when she was alone at her house, complainant came to her house and started abusing her. She further deposed that thereafter a scuffle took place between her and Hemlata. She further deposed that in the evening at around 7:008:00pm, Rohtash and Kamal Sain came to her house in drunken condition and at that time, her mother, brother, motherinlaw and her husband were present at her house. She further deposed that accused Rohtash and Kamal Sain had beaten up her brother and husband and Hemlata also reached there and she gave beatings to her motherinlaw. She further deposed that accused Rohtash incited Hemlata and told her to tear her blouse and go to police station. She further deposed that thereafter, police called her husband and her brother at P.S, who visited there and her fatherinlaw Netra Pal was not present at that time and he FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 9 of 18 came afterwards when scuffle was over.
25. During cross examination by the Ld. APP for the state, the witness has stated that house of the complainant Hemlata is situated adjacent to her house. She further denied suggestion put to her that in the day time on 16.02.2009, she alongwith her motherinlaw Reshma abused complainant Hemlata and scuffle took place only between herself and Hemlata and on the same day at around 9:00pm, first her fatherinlaw Netra Pal and then her husband Deepak alongwith her mother, brother and motherinlaw reached house of the complainant and gave her beatings. She further denied suggestion put to her that her fatherinlaw Netra Pal misbehaved with complainant Hemlata and torn her clothes. She also denied that on the day of the incident Rohtash and Kamal Sain did not reach her house and gave any beatings to her husband or brother. She further denied the suggestion that they had not complained to the police about the alleged incident of beating given by Rohtash and Kamal Sain and voluntarily stated that her husband, brother and fatherinlaw went to the police station in the same night when they were called by the police from the P.S and complained about the incident. She further deposed that she does not know whether police carried out any investigation on her complaint or not as she had not visited the P.S on the day of incident or later and no police personnel ever enquired her regarding the present incident. She further denied all other formal suggestions put to her by Ld. APP for the State.
26. Ld. APP for the State had argued that all the prosecution witnesses have corroborated themselves in material particulars, and therefore, the FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 10 of 18 accused should be held guilty for the alleged offences.
27. Counsel for the accused on the other hand argued that the accused has been falsely implicated in the present case. It is submitted that the marriage of the nephew of the complainant was mediated by accused Deepak. However, the said marriage could not be materialized and the engagement was cancelled. It is argued that in order to take revenge for the said cancellation of marriage, the complainant has implicated the accused persons in the present false case. It is submitted that in fact a minor argument has taken place on 16.02.2009 in the morning between complainant and the lady family members of the accused persons. It is also argued that later on in the evening of the same day a scuffle also took place between complainant's husband and jeth and accused Deepak and Hari. It is submitted that, in fact, the accused persons had also given complaint in P.S. Mehrauli on the same day, however, the police did not take any action on their complaint and in fact lodged the present false case against them at the behest of the complainant and her jeth, namely Rohtash. It is argued that in fact accused Netra Pal was not even present at his home on the said evening when the incident took place. It is, therefore, argued that the accused has been falsely implicated in the present case and they are liable to be acquitted.
28. I have considered the submissions of the rival parties and have throughly perused the record.
29. At the outset, I would like to discuss the provisions of law for which the accused has been charged i.e. Section 354/323/451 of IPC. FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 11 of 18
30. In order to bring home the guilt for the offence punishable under Section 354 IPC, the prosecution has to prove the following ingredients:
i) That the victim concerned belonged to fair sex -
whatever her age may be;
ii) That the accused subjected her to assault as defined in Section 351 of Indian Penal Code or to criminal force as defined in Section 350 IPC; and
iii) That the accused while committing assault or using criminal force intended to outrage the modesty of the victim or was likely to outrage her modesty.
Moreover, Section 323 of IPC provides as under:
Punishment for voluntarily causing hurt. ― Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Further, Section 451 of IPC provides as under:
Housetrespass in order to commit offence punishable with imprisonment.―Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven year.FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 12 of 18
31. The accused in their statement U/s 313 of Cr.P.C have taken a stand that in fact an argument had taken place between the complainant and lady family members of the accused persons in the morning on 16.02.2009.
Accused Netra Pal in his statement U/s 313 of Cr.P.C had also mentioned that he had gone to reception in the evening on the alleged day of incident. From a bare perusal of the statements given by PW1,2 & 3 there appears to be several inherent contradictions and ambiguities in their deposition. For instance, in the deposition of PW1 complainant, she had stated that in the evening of 16.02.2009, when she had gone to give dinner to her mother in law at around 9:00pm, accused Netra Pal came there and misbehaved with her. The complainant has nowhere explained as to how the accused Netra Pal had entered her house without her knowledge and without the knowledge of any of her family members. Further, it is also a matter of record that the mother in law of the complainant was present when the incident had taken place. However, neither any statement of mother in law of the complainant has been recorded during the investigation nor she has been made witness by the prosecution. Such lapse on part of the prosecution has not been explained anywhere during the course of the arguments. In fact, PW6 IO had merely stated in his cross examination that he had enquired from mother in law of the complainant, but he did not record her statement as she was not prepared to give any statement. Since mother in law was in fact eye witness of the incident her statement would have been extremely material to the prosecution's case. Such a lapse on the part of the prosecution is not FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 13 of 18 only fatal to the trial, but should be strictly scrutinized by higher authorities of the Investigating Agency.
32. There are also certain other contradictions in the deposition of PW1 complainant, such as, she had stated that accused Hari Kumar had mercilessly beaten her up. However, her MLC record shows no external injury on her person or even on the person of her husband and her son, who were allegedly beaten by the accused persons at the spot. Complainant had also mentioned that she went to P.S. at around 9:15pm, after, her husband had arrived at the spot. But she has been unable to explain as to why she went alone to P.S. and did not accompany her husband and son. She had also admitted that she had not made any call to PCR at 100 number before going to P.S.
33. In fact, from the deposition of PW2son of the complainant, and PW3 husband of the complainant there appears to be several inherent contradictions pursuant to the visit of the complainant to P.S for giving her complaint. While PW2 had stated that the accused persons had beaten up her mother, her father and himself on the day of the incident and somehow they managed to rescue themselves and ran away to P.S; the husband of the complainant (PW3), on the other hand, had stated that his wife had gone to P.S and he alongwith his son later on reached there. However, during his cross examination he also mentioned that he came to know that his wife had gone to PS only when he saw her coming back home with Police officials.
34. There is also ambiguity on the date mentioned in the MLC of the FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 14 of 18 complainant and the comments of the doctor given on request letter for medical examination of the husband and son of the complainant. The said document are Ex.PW4/A, Ex.PW4/B, and Ex.PW4/C (respectively). In the MLC Ex.PW4/A of complainant the date mentioned is 17.02.2009 but no time has been mentioned, while on Ex.PW1/B and Ex.PW1/C the date mentioned is 16.02.2009 and time 11:30pm. The said discrepancy in the date mentioned in the MLC's have not been explained by the prosecution.
35. Furthermore, as per the statement of complainant, she had also stated that when she came back to the spot with police officials, she showed the spot and on her pointing, all the accused persons were arrested vide arrest memo Ex.PW1/C, Ex.PW1/D and Ex.PW1/D. A bare perusal of the said arrest memo shows that the arrest of the accused Deepak Kumar and Hari vide arrest memo Ex.PW1/C and Ex.PW1/D had taken place at around 5:30am on 17.02.2009, while arrest of the accused Netra Pal vide Ex.PW1/E had taken place at around 11:15am on 17.02.2009. This stark discrepancy in the time mentioned in the arrest memos have also not been explained by the prosecution.
36. There are also many other contradictions in the deposition of PW complainant as at one place she had stated that she did not shout for help when she was being assaulted by the accused persons as the alleged attack was sudden. However, at the same time she mentioned that her son had arrived there for her rescue only after hearing her shouts. She also mentioned that in the morning of 16.02.2009 accused Deepak, his wife Shanti and motherinlaw of Deepak, namely Reshma had abused her and FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 15 of 18 beaten her. But during her cross examination she stated that the said persons had only abused her and not hit her in the day time.
37. Further, as per the deposition of PW2, it appears that some neighbourers have also gathered at the spot but he stated that neither of the said neighbor tried to rescue his mother. From the record no statement of any neighbourer has been recorded. PW2 had also mentioned that his other brother and sisters were upstairs but even the said brothers and sisters of PW2 have also not been examined during investigation. There also appears to be an ambiguity in the deposition of PW3 as he submits that even he did not call at 100 number seeing his wife and son being assaulted and also even when he was beaten up by the accused persons, but his wife had herself gone to P.S.
38. Moreover, from the deposition of PW4, it is mentioned in his cross examination that no scratch marks on any of the three persons namely, the complainant, her husband and son were found during medical examination, therefore, no such fact has been mentioned in their MLC. This itself contradicts the fact alleged by the complainant that she and her husband and her son were mercilessly beaten up by legs and fist blows by the accused persons. Further, PW5 & PW6 in their deposition had stated that at around 9:15am, one lady Hemlata alongwith her husband and son had come to the P.S. Even though the time appears to be a typographical error and instead of 'PM', 'AM' has been recorded, nevertheless, this fact is also contradictory to the deposition given by PW1,2 & 3, who stated that only PW1 had gone to P.S. initially. PW5 in his cross examination also FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 16 of 18 stated that he reached at the spot at 2:00am. Also, a bare perusal of the FIR shows that the same has been lodged at around 3:00am on 17.02.2009 and it appears that the same was lodged after medical examination of complainant, her husband and son. This fact stands reaffirmed from the deposition of PW6 IO. He also mentioned that mother in law of the complainant was present at the spot. However, once again as observed earlier, the mother in law has not been examined by the prosecution. PW5 also mentioned that there were no neighbourers present at the spot when he reached there alongwith IO and no enquiry was also made from any of the neighbourers. The IO PW6 had also admitted in his cross examination that even accused Netra Pal had given a complaint on the same day and he accordingly admitted document Ex.PW6/D1. He also admitted no action taken on the said complaint of accused Netra Pal.
39. In the defence only material witness examined is DW2 Sh. Shanti Devi, who is wife of accused Deepak Kumar. She had, in fact, corroborated the statement given by the accused persons U/s 313 of Cr.P.C.
40. In view of the above said discussions and on the basis of the entire material available on record, I am of the considered view that as there are several contradictions, ambiguities and discrepancies in the deposition of PW1,2 & 3 who are the material witnesses and further, since even PW5 and PW6 have not been able to corroborate the submissions of PW1, PW2 and 3, thus, the prosecution has failed to prove its case beyond all reasonable doubts. The allegations made by the complainant cannot be considered as tenable in view of the contradictions pointed out in FIR NO. 66/2009 STATE VS. DEEPAK & ORS. PS MEHRAULI Page 17 of 18 prosecution case. Hence, all the accused persons are liable to get the benefit of doubt. As the ingredients of the alleged offences have not been proved against the accused persons and there are several fallacies in the prosecution case, accused persons are acquitted for the offences under section 323/354/451/34 IPC.
Pronounced in open court
on 28th October 2014 (ANKITA LAL)
M.M01 Mahila Court (South),
Saket, New Delhi
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