Delhi District Court
State vs . Jasbir Singh & Ors. on 30 March, 2013
IN THE COURT OF MS. JYOTI KLER: METROPOLITAN MAGISTRATE
(MAHILA COURT) SOUTH DISTRICT, SAKET COURTS:NEW DELHI
State Vs. Jasbir Singh & Ors.
FIR No. : 33/98
U/S : 147/451/323/354 IPC r/w Section 149 IPC
PS : Sarojini Nagar
Case ID : 02403R0015251999
JUDGMENT
a) Sl. No. of the case : 104/2/11
b) Date of commission of offence : 27.12.1997
c) Date of institution of the case : 27.11.1999
d) Name of the complainant : Mrs. Vidhya
e) Name & address of the : 1. Jasbir Singh @ Jassi
accused S/o Sh. Savrud Singh,
R/o 184, Arjun Nagar, New Delhi.
2. Inder Raj
S/o Sh. Bishan Singh
R/o 184, Arjun Nagar, New Delhi.
3. Jatin Arora
S/o Late J.L. Arora
R/o 210, Panchshel Park, New Delhi
4. Bhupinder Kaur
W/o Sh. Jasbir Singh,
R/o 184, Arjun Nagar, New Delhi
5. Sataya
W/o Inder Raj,
R/o 184, Arjun Nagar, New Delhi
f) Offence complained of : 147/451/323/354/149 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 28.03.2013
i) Date of Judgment : 30.03.2013
j) Final Order : Acquittal
FIR No. 33/98 PS Sarojini Nagar Page 1 of 11
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The present FIR was registered after the orders of DCP (SouthWest), New Delhi, dated 29.01.1998 passed on the basis of a complaint dated 01.01.1998 filed by complainant Vidhya. Vide the aforesaid complaint, complainant revealed about an incident dated 27.12.1997. It is alleged that on 27.12.1997 at about 4PM the complainant was present along with her three children at her residence i.e. house No. 178A, Arjun Nagar, New Delhi, within the jurisdiction of PS Sarojini Nagar, New Delhi, when the accused Jasbir @ Jassi, Inder Raj, Jatin Arora, Trilochan Singh, Bhupinder Kaur, Satya and Amar Kaur opened the door and entered in that portion of the building which was in possession of the complainant and her family members. Complainant stopped them at the gate and asked them as to why they were entering in her portion without her permission. At this, accused Trilochan Singh slapped the complainant. Complainant shouted at which accused Jasbir Singh gagged her and accused Inder Raj pushed her inside her house. All the accused persons thereafter entered in the house and started beating the complainant. Punit, Son of the sister of the complainant, tried to save her but he was also strangulated and pushed on the ground. Punit ran away to call his mother. Accused persons started abusing the complainant and accused Jatin Arora proclaimed that she should be put in such a condition that she is unable to approach the Police Station. At this, accused Jasbir, Inder Raj and Trilochan, caught hold of the complainant and started pressing her chest. They had also gagged the complainant and locked her two children in a room due to which none of the persons were able to raise an alarm. Accused Jatin Arora pulled the hairs of the complainant and asked the accused persons to remove her clothes. However, the three lady accused persons present there said that one of the boy was able to escape and he may call the Police. After realizing this, accused persons immediately left the spot. During the incident, one gold chain of the complainant went missing.
FIR No. 33/98 PS Sarojini Nagar Page 2 of 11
2. A call to the Police was made by the sister of the complainant. PCR van reached at the spot and took the complainant and Punit to the hospital where the complainant was medically examined and her MLC was prepared.
3. In her complaint, the complainant also disclosed that the father of accused Jatin Arora i.e. Sh. J.L. Arora had entered into an agreement, whereby he was supposed to construct a building. Complainant was residing in one of the portion of the said building and a litigation between the parties was pending in this regard. Due to this dispute, a case u/s 107/150 Cr.P.C. against the parties was also registered and was pending consideration in the Court of Ld. SEM on the date of the incident.
4. After registration of FIR, investigation was conducted. During the investigation accused persons were arrested. Site plan was prepared. Statements were recorded u/s 161 Cr.P.C. After completion of investigation, challan sheet was filed in the Court on 27.11.1999. Court took cognizance of the offences on the same day. Copy of challan was supplied to the accused persons in compliance of Section 207 Cr.P.C. A prima facie case for the offences punishable u/s 147/451/323/354 IPC r/w Section 149 IPC was made out against the accused persons. Notice of accusation u/s 251 Cr.P.C was accordingly served upon them on 09.12.2004, to which they pleaded not guilty and claimed trial.
5. Before proceeding further, it is pertinent to mention here that out of the seven accused persons named in the complaint, only five were sent for trial. Accused Trilochan Singh and Amar Kaur were not sent for trial as their addresses and other particulars could not be ascertained during investigation. They were kept in column No.2 of the chargesheet.
6. Total seven witnesses were examined by the prosecution in support of its case.
7. Out of the seven witnesses, five are official witnesses. Out of these five, FIR No. 33/98 PS Sarojini Nagar Page 3 of 11 four are police officials and one is the medical official. Further, out of four Police Officials, PW2 HC Paramjeet Singh, PW4 WASI Renu Bala and PW7 SI Rajiv Vats are formal witnesses. PW2 has proved the FIR as Ex.PW2/A and endorsement on the rukka i.e. Ex.PW2/B. PW4 has proved the arrest memo and personal search memo of accused Satya, prepared on 28.08.1999 as Ex.PW4/A and Ex.PW4/B. PW7 has proved the arrest memo and personal search memo of accused Bhupinder Kaur as Ex.PW7/A and Ex.PW7/B. He also identified the arrest memo and personal search memo of accused Satya, already proved by PW4.
8. The remaining police official i.e. PW3 Inspector Santan Singh is the IO of the case and he has deposed about the steps of investigation undertaken by him. He has proved the rukka Ex.PW3/A1, arrest memo of accused Jasbir as Ex.PW3/B, arrest memo and personal search memo of accused Inder Raj as Ex.PW3/C and PW3/D respectively, and personal search memo of accused Jatin Arora as Ex.PW3/E. He also deposed during cross examination that the proceedings u/s 107/150 Cr.P.C. were initiated against the accused persons on the basis of a complaint lodged by the complainant.
9. PW6 Sh. S.S. Rawat, MRT, Safdarjung Hospital has proved the MLC of the complainant and the same is Ex.PW6/A.
10. PW1 Smt. Vidhya, i.e. the complainant and PW5 Sh. Punit Kaushal, the son of the sister of the complainant, are the most material witnesses of the prosecution. I shall discuss their testimony in the further paragraphs while dealing with the reasons for the judgment.
11. Entire incriminating evidence was put to all the accused persons on 13.03.2013. They had denied the same and stated that they have been falsely implicated due to a property dispute between accused Jasbir Singh and the complainant. It was stated that this case was registered in order to pressurize accused Jasbir to settle the property dispute with the complainant. Accused Jatin Arora additionally alleged that he FIR No. 33/98 PS Sarojini Nagar Page 4 of 11 was not present on the spot on the date of the incident.
12. No evidence was led by the accused persons in their defence.
13. I have heard the final arguments and perused the record. I have carefully considered the material available.
14. It is the settled principle of law that the prosecution has to prove its case against the accused beyond reasonable doubt. Prosecution cannot rely upon the loop holes in the case of the defence to say that the defence raised by the accused persons is false and hence its case should be accepted and accused persons should be convicted.
15. After carefully perusing the material on record, I am of the considered opinion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt, for the reasons mentioned in the forthcoming paragraphs.
Contradictions and Improvements:
16. It has been held by the Hon'ble Superior Courts time and again that where a witness changes her statement easily at her own convenience, it does not inspire any confidence and no reliance can be placed on the statement of such a witness. Similarly, if the statement of injured eye witness given before the Police and before the Court are contradictory, the witness is not to be believed. Also a witness who omits to state the material facts of the actual incident in her first disclosure before the IO, then her evidence becomes doubtful and is to be pushed out of the arena of trustworthiness. A doubt is further to be raised on the testimony of an eye witness when he or she suppresses material facts.
17. PW1 and PW5 are the two material witnesses of the prosecution. PW1 is also the complainant. I have carefully perused their testimony. It took four dates to complete the testimony of PW1. She first appeared on 04.08.2009 and her testimony was recorded by my Ld. Predecessor. On that day, PW1 did not depose anything about the FIR No. 33/98 PS Sarojini Nagar Page 5 of 11 incident. Her testimony of the said date reads as under:
"The complainant is unable to tell about the incident and further unable to tell the name of accused persons she says that she is not well and seek adjournment."
18. On 16.11.2011, PW1 was examined again. On this date, she deposed that on 27.12.1997, 7 to 8 persons forcibly tried to enter in her house. She objected to it, after which she was beaten by kicks and fist blows. Accused Jasbir Singh hit her with a Gamla and tore her shirt. When her son tried to rescue her, he was dragged by the accused persons who caught hold of the hood of his Tshirt, which tightened his neck. The accused persons beat her mercilessly due to which she got unconscious. The examination in chief was thereafter deferred on this day as it was already 3PM.
19. On 18.02.2012, PW1 was examined afresh. On this day, she deposed that accused Jasbir Singh, Bhupinder Kaur, Inder Raj & Satya along with certain other accused persons whose names she does not know, were trying to go upstairs. She resisted them at the ground floor, after which they started beating her. Accused Jasbir caught hold of her shirt due to which it was torned. He hit her with a Gamla after which she became unconscious. It was further deposed by her that the accused persons used to come to her house for taking possession of the second floor of the building. She also deposed that she has narrated the entire incident which she remembered. She further deposed that she had forgotten several things due to lapse of time. Ld. APP thereafter requested the Court that he may be allowed to refresh the memory of the witness which was objected to by the Ld. Defence counsel. Arguments were heard on the objection and matter was adjourned for orders. The examination of PW1 was deferred.
20. On 11.05.2012, the objection raised by the Ld. Defence counsel was allowed and PW1 was partly examined in chief and cross examined by the Ld. APP for the State. The cross examination by the Ld. APP continued on 05.11.2012 as well. The witness FIR No. 33/98 PS Sarojini Nagar Page 6 of 11 was thereafter cross examined on the same day on behalf of accused Inder Raj, Satya and Jatin Arora. Accused Jasbir Singh and Bhupinder Kaur did not cross examine this witness despite opportunity. During her examination on 11.05.2012 PW1 deposed that on 27.12.1999 (though the date of incident is 27.12.1997) accused Jasbir Singh, Jatin, Inder Raj, Satya, Bhupinder Kaur, Trilochan Singh and Amar Kaur came at her house to take possession of the same. They had done so on earlier occasions as well. She restrained the accused persons at which she was beaten up by them. They hit her with a flower pot. When she tried to restrain the accused persons from going upstairs, accused Jasbir caught hold of her breast due to which she fell on the ground and became unconscious. In the meantime, her son Punit came and tried to rescue her. But accused Jasbir caught hold of him with the hood of his Tshirt and he was saved by some third person. Thereafter, Punit ran away to inform her elder sister.
21. Sensing that there were substantial contradictions in the deposition of the complainant before the Court and in the allegations raised in the first complaint, Ld. APP declared this witness hostile and thereafter cross examined her by giving suggestions about the incident during which Ld. APP put all the allegations mentioned in the complaint to the witness one by one and the same were admitted by her. She admitted that accused Trilochan Singh had slapped her and accused Inder Raj had pushed her. She also deposed that accused Jasbir Singh had pulled her hairs and she lost her gold chain during the scuffle. She was taken to Safdarjung Hospital and the present case was registered only after she contacted the ACP/DCP PS Vasant Vihar. The manner in which suggestions were given by the Ld. APP in fact amount to refreshing the memory of the witness under the garb of cross examination and same has to be considered with gross suspicion. Urge of the witness to refer to the record again and again suggests concoctment.
22. PW1 was also cross examined by the Ld. Counsel for the accused Jatin, FIR No. 33/98 PS Sarojini Nagar Page 7 of 11 Satya and Inder Raj, during which she deposed that she had received injuries in her head but she does not remember exactly as to who had hit her, but it was probably Jasbir or Trilochan. She denied the suggestion that the accused Jatin, Satya and Inder Raj were not present at the time of incident and they were falsely implicated and that is why she has not assigned any role to them.
23. From the testimony of PW1, it is apparent that she has consistently leveled two material allegations against the accused persons. First, that she was hit in her head with a Gamla. Second, that PW5 Punit was caught by the accused persons with the hood of his TShirt.
24. Regarding the first allegation, she deposed on 16.11.2011 and on 18.02.2012 that it was accused Jasbir, who had hit her with a Gamla. However, on 11.05.2012 she deposed that she does not know exactly as to who had hit her but it was probably accused Jasbir. Regarding the second allegation, she did not assign any specific role to any of the accused on 16.11.2011 but on 18.02.2012 and 11.05.2012 she deposed that it was accused Jasbir who had caught PW5 Punit with the hood of his TShirt. PW5 corroborated PW1 to the extent that a Gamla blow was given on the head of PW1 and that he was held with the hood of his TShirt, but he did not assign a specific role to any of the accused persons during his examination in chief. However, during the cross examination, he deposed that accused Jasbir had caught hold of him with the hood of his TShirt. MLC Ex.PW6/A corroborates the first allegation of PW1 as tenderness was found present on her scalp at the time of medical examination.
25. However, these two allegations are not the part of first complaint moved on behalf of the complainant and hence are not the part of FIR. PW5, during his cross examination, deposed that the Police did not conduct proper investigation in this case and his statement u/s 161 Cr.P.C. where the aforesaid allegations have not been mentioned was never read over to him. It was deposed by him that this is the only reason why there FIR No. 33/98 PS Sarojini Nagar Page 8 of 11 are contradictions in his statement made before the Court and in the statement recorded by the Police. This part of the testimony of PW5 may raise a doubt upon the fairness of investigation and conduct of the IO. But, Court cannot be oblivious to the fact that the complaint on the basis of which FIR was registered, was not recorded by the Police officials as is also admitted by PW1. In fact, this complaint was handed over by her directly to the DCP. Even the complaint does not mention the aforesaid two allegations.
26. Regarding the allegations of outraging of modesty, complainant deposed on 11.05.2012 that accused Jasbir had touched her breast but on 16.11.2011 she deposed that he had torned her shirt. Further, on 18.02.2012 she deposed that the accused only caught hold of her shirt due to which it was torned. This allegation is narrated differently on different dates of examination and in fact is not a part of the complaint. There are also other contradictions in the complaint and in the statement made before the Court. As per the complaint incident occurred inside the house of the complainant while during cross examination she deposed that the incident occurred on the staircase leading to the second floor. There is further a mention about the presence of a third person in the examination in chief of PW1, which was recorded on 11.05.2012, but there is no mention of any third person in the first complaint.
27. The omission on the part of PW1 to state the material facts of the actual incident in her first disclosure before the Police, makes her testimony doubtful. The contradictory statement made by the complaint in the Court and in her first complaint and further the fact that the complainant was unable to depose despite repeated opportunities and was insisting on reading her complaint, suggest concoctment on her part. There are injuries on the person of PW1 as reflected in MLC Ex.PW6/A. It is also an admitted case that a Kalandara against the accused persons was prepared under Section 107/150 Cr.P.C. with respect to the alleged incident. This suggests that a quarrel had in fact occurred on the alleged date of incident between the parties during which PW1 had received injuries. FIR No. 33/98 PS Sarojini Nagar Page 9 of 11 However, from the material contradictions and omissions, it appears that the incident was not as has been portrayed in the complaint. It may be possible that the incident was portrayed differently in order to make out a criminal case against the accused persons where either none existed or if existed, it would have been for some minor offence. A careful scrutiny of the testimony of PW1 and PW5 suggest that the material witnesses of the prosecution did not speak truth either before the Court or before the Police and suppressed material facts. Hence, their testimony is pushed out of the arena of trustworthiness and becomes unbelievable.
Previous Enmity
28. During cross examination, both PW1 and PW5 admitted that they and the accused persons were involved in civil litigations with respect to the property where complainant was residing at the time of alleged incident. PW5 further admitted that accused Jasbir had lodged a criminal case against his mother Savitri, sister of PW1, and she remained in custody for around 10 days in the said case. This suggests that there has been a previous enmity between the parties. It is the settled principal of law that where witness stood in a state of hostile relations with the accused, it becomes a duty of the Court to carefully scrutinize his testimony. The law of evidence does not say that such a witness cannot be said to be a credible witness at all but the level of scrutiny qua his testimony shall be much more higher than the testimony of an independent witness. The testimony of PW1 and PW5 could not stand the test of strict scrutiny and hence, cannot be relied upon to convict the accused persons.
Delay in FIR
29. It is noteworthy that the first complaint regarding the incident was lodged by the complainant on 01.01.1998 i.e. almost 5 days after the incident. No reason for such a lapse has been explained and this also raise chances of concoction in the story of the complainant, which in turn, puts the case of the prosecution under the cloud of doubt. FIR No. 33/98 PS Sarojini Nagar Page 10 of 11
30. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. Accused persons are accordingly acquitted of the offences charged. Pronounced in open court on 30th March, 2013 (Jyoti Kler) M.M (Mahila Court), South District, Saket, New Delhi FIR No. 33/98 PS Sarojini Nagar Page 11 of 11