Delhi District Court
State vs . Shankar Kumar on 28 February, 2014
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH WEST)-01, MAHILA COURT, DWARKA, NEW DELHI
STATE VS. Shankar Kumar
FIR NO: 01/13
P. S. Kapashera
ID No. 02405R0026502013
Date of institution of case : 05.02.2013
Date on which case reserved for judgment : 20.02.2014
Date of judgment : 28.02.2014
Advocates appearing in the case :-
Sh. Pankaj Kumar, Ld. APP for State
Sh. Vinay Kumar Sharma, Ld. Counsel for accused
JUDGEMENT U/S 355 Cr.P.C.:
a) Date of offence : 30.12.2012
b) Offence complained of : 341/354/509 IPC
c) Name of complainant : Smt. Kumari Kiran Upadhyay
d) Name of accused, his parentage, : Shankar Kumar
local & permanent residence S/o Late Sh. Lala Prasad
R/o House no. 97A, Ambedkar
Colony, Bijwasan, Delhi
e) Plea of accused : Accused is falsely implicated.
f) Final order : Accused is acquitted
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, accused Sankar S/o Late Sh. Lala Prasad has been charged for offences u/s 341/354/509 IPC that for a continuous period of time in December 2012, he used to harass the complainant Kumari Kiran Upadhyay and on 30.12.2012 at about 8:30 am near House no. C-101, Ambedkar Colony, Bijwasan, New Delhi within jurisdiction of PS Kapashera, he FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 1/9 wrongfully restrained the complainant and used criminal force against complainant with intention to outrage her modesty and also abused the complainant / uttered indecent words with intention to insult the modesty of complainant.
2. The prosecution has examined two PWs on its behalf in support of its case. PW1 is IO SI Dilbagh Singh who stated that on 31.12.2012 one call DD no. 14A regarding misbehaving was assigned to ASI Ranvir, which was later on assigned to PW1 by order of SHO. He further stated that he went to house of complainant and recorded statement of Kiran Upadhyay vide Ex.PW1/A, prepared rukka Ex.PW1/B, got the FIR registered vide Ex.PW1/C and visited the spot and prepared site plan vide Ex.PW1/D at the instance of complainant. The IO further states that he arrested the accused vide memo Ex.PW1/E and conducted his personal search vide memo Ex.PW1/F.
3. In his cross-examination by Ld. Defence Counsel, PW1 has stated that he recorded statement of complainant on 31.12.2012 at about 10:30 to 11 pm. He stated that complainant never came to police station from the time of incident till recording of her statement. He stated that he has not filed any call detail records about location of complainant at the time of alleged incident. He admitted that there are two FIRs registered against complainant regarding dog bitings in the police station. He stated that he had not seen any kind of damage to the property or house of the complainant, when he visited to the house. He stated that he had not recorded statement of any family members of complainant as they refused to give statement.
FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 2/9
4. PW2 is complainant Kiran Upadhyay who stated that accused is her neighbour and used to eve tease and molest her and used to pass sarcastic remarks upon her. She stated that he is married and has two children, yet he used to comment "Main tumse pyar karta hoon", "agar tum mere saath nahi aayi to maar doonga ya tejab daal doonga". She further stated that on 30.12.2012 at around 8:30 am, when she was going to her college, accused chased her and caught hold of her hand and he even pulled her and forced her to ride his motorcycle to which she objected and succeeded in running from the spot. She stated that she called at 100 number and police officials came and she narrated the incident vide her complaint Ex.PW1/A. She alleged that accused again came to her house with his family members and damaged the articles.
5. In her cross-examination by Ld. Defence Counsel, PW2 stated that accused and his family members had not entered her house and damaged the house from outside and broke the tiles, lamps and POP of Chhajja on 31.12.2012 at around 5:30 pm to 6 pm. She stated that her mother, sisters and younger brother were also present on that day. She stated that she had called police from her mobile phone at 100 number and somebody called up and asked about her location and she told that she was presently at Delhi Cantt. attending her classes from 9 am to 12 noon at AWWA Training Institute. PW1 stated that she went to meet the ACP at ITO at about 4 pm and ACP met her at his house at about 6:30 p.m. and then she went back to her house. She admitted that she had one pet dog in her house on 07.12.2012. She stated that she had no knowledge if complaint dated 07.12.2012 was made by accused to FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 3/9 PS Kapashera regarding dog biting. She denied the suggestion that her dog had bitten the son of accused on 02.12.2012 and 06.12.2012 and denied any knowledge whether MLC of the child was prepared. She admitted that two FIRs no. 163/12 and 106/12 u/s 289/324 IPC was registered on complaint of neighbours Manish and Sheila respectively regarding dog bitings. She denied the suggestion that her dog had bitten the child of accused and also denied that she had reached compromise with accused in PS Kapashra in respect of said incident. She stated that she went to police station on 31.12.2012 to lodge FIR. She stated that she had not given any written complaint to SHO and SHO had come to her house to take her complaint at about 9:30 to 10 pm. She admitted that statements of her family members were not recorded by the police officials.
6. Specific question was asked to PW1 by Ld. Defence Counsel that what does she mean by "chedkani" as mentioned in her complaint Ex.PW1/A and she explained that accused comes to his terrace when she goes to terrace of her house and he always stares at her with dirty looks and passes offensive comments against her and generally parks his motorcycle in front of her gate to obstruct her path, with intention to irritate her. She stated that her mother and sister has not made any complaint against accused since they are afraid of accused. She further stated that on the date of incident, she was going to college alone on her scooty. She further stated that location of incident was within Bijwashan but she can not tell the name or gali number of the area. She did not remember the registration number of the motorcycle of accused and stated that it may be of make Bajaj or Bajaj Discover. She stated that she did FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 4/9 not raise any alarm as there was nobody nearby. She admitted that she had not made any call at 100 number from the spot of incident and volunteered that she had made call at 100 number after 1 hour of the incident.
7. In her further cross-examination dated 18.12.2013, PW2 stated that she had never visited the police station for registration of FIR. She denied the suggestion that accused was not present at the spot. She stated that she can not tell the exact time and date when accused had harassed her before 30.12.2012.
8. After closure of PE, statement of accused u/s 313 Cr.P.C. was recorded in which he stated that he is innocent and he has been falsely implicated in this case and preferred to lead defence evidence and filed application u/s 315 Cr.P.C. for standing as witness on behalf of himself, which was duly allowed.
9. DW1 is Sh. Manoj Jaiswal who stated that complainant Kiran is his neighbour and her dog had bitten his daughter Khushi and when his wife went to the house of complainant to raise objections, complainant provoked the dog to bite his wife and dog had bitten his wife also, therefore, he dialed 100 number and police came and took his daughter and wife to hospital for medical treatment. He marked the copies of MLCs of his son and wife as Mark DW1/A and B.
10. DW2 is Sh. Prabhat Singh who stated that complainant Kiran is his FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 5/9 neighbour and her dog has bitten his daughter Mahima Thakur on 01.05.2012 but he forgave her and thereafter, her dog started biting children of other neighbours due to which Shankar lodged complaint against her since the dog had bitten his son Rahul Kumar also and due to this, complainant falsely implicated Shankar in this case. He marked the copy of joint complaint of neighbours of Kiran to police as Mark-DW1/A.
11. DW3 Sh. Tribhuwan Singh who stated that complainant Kiran is his neighbour and her dog had bitten his son Manish. He further stated that he lodged a complaint against complainant Kiran and marked the copy of FIR no. 163/2012 PS Kapashera u/s 289/324 IPC as Mark-DW3/A. He further stated that complainant Kiran used to threatened him to withdraw his complaint / otherwise she would implicate him in false case and all the residents of locality were afraid of the dog of complainant and misbehaviour of complainant and the accused neighbour Shankar was courageous enough to file a complaint against her as the dog of complainant had also bitten his son. He stated that as a result, the complainant implicated the accused Shankar in the present case and therefore, they all moved combined complaint to the police already marked as Mark DW1/A.
12. DW4 is accused Shankar Kumar himself. He stated that his child was bitten by the dog of the complainant on 02.12.2012 and he had written a complaint to the police on 05.12.2012 and the said complaint is Mark-A and he had withdrawn the complaint at request of the complainant and neighbours, on 07.12.2012 vide Settlement Mark-B. He further stated that he got prepared FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 6/9 MLC report of his child from Civil Hospital, Gurgaon which is Mark-C. He alleged that the present FIR has been lodged by the complainant just to take revenge from him. He stated that certain other FIRs have also been lodged against complainant regarding dog biting, by Manoj Kumar Jaiswal and Tirbhuvan Singh which are already on record.
13. After closure of DE Final arguments were heard on last date and case was fixed for order for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
14. During final arguments, Ld. APP argued that this is a fit case for conviction of accused. On the other hand Ld. Defence Counsel argued that due to previous enmity, complainant falsely implicated accused in this case and accused is an innocent person.
15. Perusal of DD no. 14A dated 31.12.2012 reveal that the call was made to police at about 11:15 am by complainant that her neighbour Shankar Bihari is harassing her since 2-3 days. However, perusal of complaint Ex.PW1/A reveal that complainant had levelled specific allegations that accused Shankar caught hold of her hand and compelled her to sit on her motorcycle on 30.12.2012 at about 8:30 am. The date of complaint is 31.12.2012. Perusal of rukka also reveals that no call was made at 100 number by the complainant on the date of incident i.e. on 30.12.2012 and rather the call was made on next day i.e. 31.12.2012. hence, it can not be FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 7/9 ascertained that the alleged incident actually occurred on 30.12.2012 or not.
16. Moreover, there are various other discrepancies in the complaint Ex.PW1/A and examination-in-chief of complainant. In her complaint Ex.PW1/A, complainant had nowhere stated that she was going to college on her scooty when accused stalked her but in her cross-examination, complainant as PW2 stated that she was going to college on scooty when incident occurred. It is rather difficulty to believe that if she was already on her scooty when accused met her on the way, how he forced her to sit on his motorcycle.
17. Moreover, none of the family members of complainant have come forward to give evidence in support of her statement and no other public witness has corroborated the statement of complainant. No MLC of complainant has been conducted.
18. The complainant did not call police at 100 number there and then, the discrepancies in examination and cross-examination of complainant are so much that it seems that the alleged incident had never occurred.
19. The complainant has admitted that two FIRs had already been lodged against her regarding dog biting of children of neighbour by her dog. Accused Shankar had also lodged complaint against her for dog biting. Hence, it is clear that there was previous enmity between complainant and accused. The defence witnesses have also placed on record the copies of FIRs and FIR no. 01/13 ; PS: Kapashera St vs. Shankar Page no. 8/9 deposed in support of assertions of accused.
20. Hence, keeping in view all the facts and circumstances, this court is of the opinion that the evidence of complainant does not inspire any confidence and it seems that she levelled frivolous and false allegations against accused due to previous enmity and that is the reason that no call was made at 100 number by her instantly and even her own family members have not come forward to corroborate the averments of complainant, whereas on the other hand so many neighbours have corroborated the assertions of accused with proofs of complainants, FIR and MLCs. Hence, no case for any of the offences u/s 341 or 354 or 509 IPC is made out against accused. Accused Shankar stands acquitted from all the offences u/s 341 or 354 or 509 IPC. Personal bond and surety bond of accused stands discharged. Original documents if any be released to the authorized persons on proper receipt and endorsement, if any, be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 28th FEBRUARY, 2014 MM-01(SW), Mahila Court
FIR no. 01/13 ; PS: Kapashera
St vs. Shankar Page no. 9/9