Delhi District Court
Fir No. 934/2014 State vs . Anil @ Thanedar & Anr. Page No.1 Of 19 on 11 July, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No: 934/2014
PS: Amar Colony
U/s : 354/34 IPC
State v. Anil @ Thanedar & Anr.
JUDGMENT
Date of institution : 19.11.2015
Cr.C No. : 91767/2016
Name of the complainant : As per chargesheet.
Name & address of the accused : 1 Anil @ Thanedar
persons S/o Udayvir
R/o Jhuggi No. A259,
Kalicharan Camp, S.N. Puri,
New Delhi
2 Vishal S/o Khusi Ram
R/o Jhuggi No. S36/292,
Kalicharan Camp, S.N. Puri,
New Delhi (Proclaimed
Offender)
Offence Complained of : U/s 354/34 IPC
Offence Charged of : U/s 354/354B/34 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 10.07.2018
Date of announcing of order : 11.07.2018
FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.1 of 19
BRIEF FACTS:
1. Brief facts of the case are that the complainant had visited her sister namely Shayamwati at her residence at Kalicharan camp, A 327 and was residing with her. On 27.10.2014 at around 09.00 pm when she went near the house, in the parking area to attend natures calls at the toilet, she was accompanied by the daughter of her sister namely Komal. When she reached there accused Anil caught hold of her from behind and held both her hands and accused Vishal (since PO) had put cloth on her mouth. Thereafter, the daughter of her sister namely Komal after hearing the noises went to call her sister namely Shaymawati. Upon seeing the same, both the aforesaid persons ran away from the spot who used to reside in the same locality as of the complainant. Accused Anil had even torn the clothes of the complainant and had touched her inappropriately with the intention to outraged her modesty.
2. Pursuant to this complaint dated 27.10.2014 against the accused, FIR was registered on 28.10.2014 and the matter was investigated. Charge sheet was filed on 19.11.2015. The Court took cognizance of offence and summoned the accused Anil @ Thanedar. Charge was framed against accused Anil @ Thandear vide order dated 26.05.2016 for the offence punishable U/s 354/354B/34 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
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3. In order to prove its case, prosecution has examined ten witnesses during trial.
PW1 Complainant (as per chargesheet) deposed that on 24.10.2014 she came to the house of her sister situated at A327, Kalicharan Camp and on 27.10.2014 at around 9.00 pm she was going to toilet in parking area situated in front of the above said house. Daughter of her sister namely Komal was also with her and she was at the distance of 1015 paces behind her. At the time of doing toilet one Anil @ Thanedar and Vishal hold her behind and they hold her hands. Accused Vishal was trying to put cloth i.e. handkerchief into her mouth. Accused Anil had pressed her breast and accused Vishal put off her wore pajama she caused alarm and tried to ran away from there. Both of them torn her wore suit. Meanwhile her sister Shyamwati came there and both accused persons ran away from there. Her sister called at 100 number after which police official came at the spot and recorded her statement Ex.PW1/A. She had shown the place of occurrence to the police official who then prepared the site plan at her instance. Accused Anil @ Thanedar was identified by the witness. She had given her statement u/s 164 Cr.PC before the court and the same was Ex. PW1/ B. During crossexamination PW1 deposed that she was married and her matrimonial house was situated at Mathura. She alongwith her children had come to Delhi on 24.10.2014 at the FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.3 of 19 residence of her sister. She was residing with her sister from her childhood at Kalicharan Camp. Accused Anil Thanedar was known to her from her childhood and accused Vishal was known to her from last two years of the incident. She did not have personal knowledge whether her sister and fatherinlaw had taken Rs.18,000 from accused Anil Thanedar or not. On 27.10.2014, her sister was present at her house. She did not know whether any hot arguments had happened on telephonic between her sister and accused Anil Thanedar. It was wrong to suggest that accused persons were falsely implicated on instance of her sister as accused Anil had asked for his aforesaid money of Rs.18,000/ from her sister. She did not remember the exact date of recording of her statement and at which place the same was recorded however, she has made her complaint to the police official on the day of incident on 27.10.2014. Her statement was recorded by police as complaint Ex. PW1/A which was read over to her. She told to the police official that accused Anil had pressed her breast and accused Vishal had put off her wearing pajama but the same was not so recorded in her complaint EX PW1/A. Police recorded her statement at once. It was wrong to suggest that no such incident was happened and accused persons were falsely implicated.
PW2 Ms. Komal (eyewitness) deposed that on 27.10.2014 at around 8.45 pm her mausi/ complainant was going to parking area in front of her house for toilet and she was behind her at the FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.4 of 19 distance of 1015 paces where two persons namely Thanedar and Vishal were holding the hand of complainant and Vishal was trying to put cloth in her mouth. She immediately went to her house to call her mother and she alongwith her mother came back there and after seeing them both accused persons ran away from there. Accused Anil @ Thanedar was identified by the witness and Accused Vishal (Since PO) was not present in the court. Police officials inquired her and recorded her statement.
During crossexamination PW2 deposed that police recorded her statement at her residence in morning, however, she did not remember the exact date of recording of her statement. At that time she was alone at her home and her parents were gone outside of the house. Her statement was not read over to her. She did not remember whether they had mentioned the name of accused persons in her statement given to police officials. It was wrong to suggest that accused has never misbehaved with her mother's sister due to which she did not disclose her name in her statement recorded by the police. Accused persons are known to her from last 10 to 15 years and she also knew their names. She was 10 paces away from mother's sister while she was going to toilet. It is correct that wife of accused Anil Thenedar had made a complaint against her father to the police. She voluntarily stated that it was made after the registration of present FIR. It was correct that Rs. 18,000/ was due over her parents which was given by accused FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.5 of 19 Anil Thanedar to her parents. It was wrong to suggest that at several occasions there was hot arguments between accused Anil Thanedar and her parents regarding the aforesaid amount. It was wrong to suggest that accused was falsely implicated with intend to not return the aforesaid amount of Rs.18,000/. It was wrong to suggest that she was deposing falsely at the instance of her parents.
PW3 Smt. Shyamwati (sister of complainant) deposed that she was residing at aforesaid address and she was doing domestic work in different Kothis. On 27.10.2014 at around 8.00 am she went to perform her domestic work in a Kothi bearing number 870, NFC and at around 12.30 pm she called on the mobile phone of Anil @ Thanedar from the mobile phone of one servant of the Kothi as there was no balance in her mobile at that time and on telephonic call she asked from Anil as to what talking was occurred between him and her son Jaggu in last night thereupon accused Anil started to abuse her on phone saying that "Bahan ki lodi tere to road par nanga karke maroonga ya to mere ko do hazar rupay de" she replied to him "I will come at my home and we will talk face to face". Around 2.30 3.00 pm she came back to her home and went to the residence of Anil but he did not meet her at that time. At around 9.00 pm her sister/complainant went to parking area in front of her house for toilet. Her daughter Komal also went behind her. Suddenly after some time she heard the sound of calling her by her daughter. She came out from her house FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.6 of 19 upon which her daughter told her that accused Anil @ Thanedar and Vishal were misbehaving with the complainant. Then she alongwith her daughter reached there and found that both accused persons had already ran away. Her sister/ complainant narrated about the incident that both accused persons had misbehaved with her. She called 100 number. After which police official came there and she alongwith her sister and police official went to residence of accused Anil @ Thanedar but he was not found present there. Police official recorded the statement of her sister/ complainant and she was also inquired regarding the incident.
During crossexamination PW3 deposed that Police had enquired from her and recorded her statement on the next day of incident i.e. 28.10.2014 in her presence at PS. The statement recorded by police was not read over to her. Statement of her younger sister was also recorded in her presence by police on the same day at about 11.00am. It was wrong to suggest that she had taken Rs.18,000/ as loan from accused Anil. She had stated to the IO that the accused had demanded Rs.20,000/ from her. It was wrong to suggest that there were several monetary transactions between her and the accused. Neither she nor her husband had taken money from accused Anil. She had never given money to accused Anil. It was wrong to suggest that accused had demanded his money from her which she had taken from him and due to this FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.7 of 19 reason, she had falsely implicated accused Anil @ Thanedar with connivance of complainant.
PW4 ASI Prabhu Lal (Duty Officer) deposed that On 28.10.2014, he was posted as HC in P S Kalkaji. On that day, he was working as Duty Officer from 4 PM to 12 mid night. At Around 04.20 PM, he received a complaint along with rukka from Ct. Deepak sent by ASI Subhash Chand. On the basis of the above mentioned complaint present FIR registered. Copy of the same was EX PW4/A. He made endorsement on rukka Ex.PW4/B. After registration of FIR, original rukka and copy of FIR was sent to ASI Subhash Chand through Ct. Deepak at the spot as further investigation of present case was marked to ASI Subhash.
Opportunity to cross examine the witness was granted to the accused however, he did not question anything to the witness.
PW5 Ct. Deepak deposed that on 27.10.2014, he was posted at PS Amar Colony, and on that day at about 9.20pm he alongwith IO ASI Subhash had gone to A327, Kalicharan Camp, Sriniwaspuri. On that day, complainant had given her statement to the IO and she stated that she will come at Police Post and give her statement there. On the next date, complainant came to the PP and gave her statement at about 3.00 to 3.30pm. On the basis of said complaint, IO ASI Subhash prepared rukka and got it registered through me. After registration of FIR, he came back with original FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.8 of 19 rukka and copy of FIR and handed over the same to the IO at the spot. IO recorded my statement.
During cross examination PW5 deposed that he did not remember as to when and where IO recorded his statement. When we first time visited at the spot, he did not remember if any other person was present there. He did not remember whether he also visited the place of incident or not. On the first visit to the residence of complainant, she did not specify any time to visit the PP. It was wrong to suggest that he did not join the investigation and he was deposing falsely at the instance of the IO.
PW6 Ct. Dharamvir deposed that on 19.08.2015, he was posted at PS Amar Colony. On that day, he had joined the investigation of the present case alongwith IO ASI Balbir and went to Saket Court where with the permission of the court, accused Anil @ Thanedar was formally arrested and his personal search was conducted vide memo Ex.PW6/A and Ex.PW6/B. IO recorded his statement in the matter.
During cross examination PW6 deposed that IO did not record his statement in his presence. It was wrong to suggest that he did not join the investigation and he is deposing falsely at the instance of the IO.
PW7 Ct. Mintu Kumar deposed that On 27.10.2014, he was posted at PP Sriniwaspuri, PS Amar Colony as DD Writer. On FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.9 of 19 that day, upon receiving call on wireless set, he entered DD No.32PP. The same is now Ex.PW7/A (OSR).
Opportunity to cross examine the witness was granted to the accused however, he did not question anything to the witness.
PW8 SI Subhash Chand (IO) deposed that in the intervening night of 27/28.10.2014, he was posted as ASI at Police Post Sriniwaspuri, PS Amar Colony. On that night, upon receipt of DD No. 32, PP Sriniwaspur regarding misbehave with one lady near Kali Charan Camp, S.N Puri, copy of the same was Ex.PW7/A, he alongwith Constable Deepak reached at the spot around 02:40 AM. They met with complainant but she did not give her statement at that time and on the next day i.e., 28.10.2014 around 04:00 PM, she came at Police Post Sriniwaspuri and she had given her statement Ex.PW1/A. On the basis of aforesaid, he prepared rukka Ex.PW8/A and got it registered as FIR through Constable Deepak. He alongwith complainant went to the spot. After registration of FIR, Constable Deepak came at the spot with original rukka and copy of FIR and handed over the same to him. He prepared site plan at instance of complainant which is Ex.PW8/B. He had tried to searched the accused persons, alongwith complainant but accused persons were not found at that time. He recorded supplementary statement of complainant and statement U/s 161 CrPC of Constable Deepak. During the course of investigation of present case, statement U/s 164 Cr.PC of FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.10 of 19 complainant was got recorded and copy of the same collected and attached with the file. Non Bailable warrants against accused persons were got issued as they were avoiding their arrest. He also recorded statement U/s 161 CrPC of other witnesses namely Shyamwati and Komal. In the month of January 2015, he was transferred from PS Amar Colony to PS Sangam Vihar and the present case file was deposited with MHC (R).
During the cross examination PW8 deposed that he received information regarding DD No.32 at around 02:20 AM. Complainant alongwith her family members were found present at the spot. The spot was vacant land where people used to parked their vehicles. No body had come forward for recording their statements. When he asked the complainant and other public person that is why, they are not giving their statements but they did not give any answer. It was correct that there was a Sabzi Mandi near the spot of incident which was separated through a wall of around 4 feet. He did not inquired from the persons available in Sabzi Mandi as it was far away from the spot. The call was remained pending as the complainant in the intervening night of 27/28.10.2014 as complainant had given her statement at that time. Complainant alongwith her family members came to PS on next date. After registration of FIR, he did not make inquiry from any neighbor regarding the incident of the present case. He recorded the statement of complainant Ex.PW1/A which was read over to the FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.11 of 19 complainant by her family members but he did not remember the name of that family member. He did not remember whether the complainant read over her statement. Rukka was sent through Ct. Deepak at around 04:00 PM and he came back at the spot at about 05:30 PM. Statement U/s 161 CrPC of the witnesses were recorded at the spot. At the time of preparing site plan, complainant alongwith her family member were present there. He did not remember if he recorded the supplementary statement of the family member of the complainant regarding preparation of Site plan. They remained at the spot for around for 1 ½ to 2 hours. It was wrong to suggest that he had not done proper and fair investigation. It was wrong to suggest that he had done the investigation in mechanical manner.
PW9 Retired SI Balbir Sharma deposed that on 19.08.2015, he was posted as ASI at PS Amar Colony. On that day, investigation of present case was marked to him by SHO concerned and he alongwith Const. Dharambir went to Saket court where accused Anil @ Thanedar had appeared before the court by surrendering himself and accused Anil @ Thanedar was formally arrested with the permission of the court vide memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B and he was sent to JC from the concerned court. On the same day, present case file was handed over to MHCR as he conducted the FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.12 of 19 investigation of present case in the absence of previous IO SI Sachin who was on leave at that time.
Opportunity to cross examine the witness was granted to the accused however, he did not question anything to the witness.
PW10 SI Sachin Kumar deposed that in the month of January 2015, he was posted as SI in PS Amar colony. On 29.01.2015, he received present case file from MHC (R) at the instruction of SHO concerned for further investigation of the present case. In the course of investigation, he tried to search accused persons namely Anil@ Thanedar and Vishal but no clue was found. Proceedings u/s 82 Cr.PC were initiated against both of accused persons and both accused persons were got declared proclaimed offender vide order of the concerned Court dt. 27.04.2015. Thereafter, he went for his training and case file was further marked to ASI Balbir. He again received the present case file from MHC (R) after returning from his training and after completion of investigation, challan was filed before the Court.
Opportunity to cross examine the witness was granted to the accused however, he did not question anything to the witness.
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.
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5. Accused examined one witness in his defence.
DW1 Ms. Jyoti deposed that accused Anil Thanedar and sister of complainant Shyamwati, both were her neighbors. Both of them used to quarrel with each other as accused Anil Thanedar had given some money on credit to Shyamwati and he wanted the money back from her. At one occasion, Shyamwati had threatened accused Anil Thanedar to implicated him in a false case if he further demanded his money from her. No such incident was occurred on 27.10.2014 with complainant by accused Anil Thanedar as she also used to go there for natural call.
During cross examination DW1 deposed that accused Anil Thanedar had never given money to Shyamwati in her presence. She voluntarily stated that she knew this fact when both of them were quarreling with each other. She was not present in the field/Khet when complainant went there for her nature's call. However, she went there for her natural call prior to 15 minutes of the incident and when she was coming back, she heard the quarrel between accused Anil Thanedar and Shyamwati. It was correct that complainant and daughter of Shyamwati were also present there. She was far away from the place where accused Anil @ Thanedar and Shyamwati and her family members were quarreling with each other. She did not make any call at 100 number or complaint to the police that no incident of misbehave was happened with complainant by accused person. It was wrong to suggest that she FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.14 of 19 was not present at the spot and she had not seen the incident due to which she did not make any complaint to the police or that she is deposing falsely to save the accused as he was her neighbor.
6. Ld. APP for the state has argued that in the present matter all the witnesses have corroborated the story of the prosecution and there is no contradiction in the testimony of the witnesses and therefore accused persons are liable to be convicted for the offences charged.
7. However, on the other hand Ld. Counsel for accused argued that in the present matter, accused has been falsely implicated by the complainant since she wanted to take revenge from the accused. He has argued that complainant and accused were admittedly residing in the same locality and were known to each other prior to the incident which is a fact admitted by the witness PW3 during her examination and crossexamination before the court. It is argued that the accused had lend an amount of Rs.18,000/ approximately to the complainant's sister i.e. PW3 and when he demanded the same, complainant picked up a quarrel with him in the afternoon of the day of incident by calling him on his phone and when she found no way to implicate the accused, she filed the present case through her sister only with the intention to falsely implicate him. It is further argued that the allegations against the accused are false in nature and have not been substantiated by the witnesses. He has FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.15 of 19 further argued that PW2 who was allegedly the eye witness of the present matter has also admitted that it was the accused who had given Rs.18,000/ to PW3 that is her mother. It is further argued that there is no corroboration in the testimony of the witnesses and further that the complainant has improved her complaint Ex.PW 1/A even while the same was written since to make allegations graver in nature the last three lines in her complaint Ex.PW1/A were added and therefore, the false implication stands proved and accused is liable to be acquitted.
Court Observation:
8. 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 following conclusion:
In the present matter, prosecution examined as many as ten witnesses among which PW1 was the complainant, PW2 was the eye witness and PW3 is the witness who made call at 100 number upon hearing the complaint of the complainant. In the present matter, the star witness of the prosecution is the complainant, who is also the victim in the present matter. However, if we carefully peruse her complaint Ex.PW1/A, her statement recorded u/s 164 CrPC and her testimony before the court, there are glaring contradictions and no corroboration. Further, there is vast improvement in the testimony of the complainant and the FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.16 of 19 complainant has failed to even narrate the manner in which the incident occurred as she has improved by saying during her examination before the court that coaccused Vishal (since proclaimed offender) had taken off her wearing pyjama and thereafter, she caused alarm, upon which both the accused persons ran away. Further, that both the accused persons had torn her wearing clothes, but the aforesaid narration of the incident is neither mentioned by the complainant in her complaint Ex.PW1/A or in her statement Ex.PW1/B. Further the complainant has alleged in her statement Ex.PW1/B that at the time of incident PW2 was coming from behind and therefore, the fact that PW2 saw the incident is again not sustainable. PW3 has stated during her examination that both the accused persons had even misbehaved with PW2 which is not mentioned by either PW2 or PW1. Further, the IO has nowhere stated that he has seized the alleged torn clothes of the complainant. Further, the IO has also stated during his examination before the court that on the date of incident when he met the complainant, she refused to give her statement on that day and no medical examination of the complainant was conducted to ascertain if there was any incident of criminal force or assault upon the complainant which was with the intention to outrage her modesty. Further, the allegation of the complainant that she was disrobed by the accused, does not find mention in the testimony of PW2 or PW3.
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9. In the present matter, accused has been charged for the offence u/s 354/354B/34 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
10. PW3 can only be treated as a hearsay witness as she was not present at the time of incident.
11. In the present fact and circumstances, accused cannot be held liable for causing any injury to the complainant as neither the complainant has stated in her examination in chief that a criminal force was used against her.
12. The improvement in the version of PW1 is crucial as Ex.
PW1/A is a hand written complaint admittedly prepared by her, soon after the incident and there is no justification or plausible ground as to why the complainant was unable to narrate the incident explicitly or elaborate upon the details particularly when the same has been written on the same day. The very fact that the complainant did not mention about the aforesaid fact and was never taken for medical examination from the place of incident itself shows that the complainant had not suffered any injury upon the alleged beatings given to her by the accused. Further, the allegations of touching the complainant with the intention to outrage her modesty are also not sustainable as the same are FIR No. 934/2014 State Vs. Anil @ Thanedar & Anr. Page No.18 of 19 completely vague and do not inspire confidence. The complainant has levelled general allegations against the accused and the same are devoid of merit as the complainant has not explained the same even during her statement recorded u/s 164 CrPC. Further, the story of the complainant cannot be believed as she herself has admitted during her crossexamination that at the place of incident, there were several public persons but none was examined by prosecution. 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. Therefore, it can be safely concluded that the guilt of the accused has not been proved beyond reasonable doubt.
13. In view of the above discussion and considering the material, available on record, the guilt of the accused is not proved beyond reasonable doubts. Therefore, accused Anil @ Thanedar is acquitted for the offences U/s 354/354B/34 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 11.07.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Saket, New Delhi.
Digitally
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.07.11
16:42:49
+0530
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