Delhi District Court
State vs . Sunil & Anr. on 15 December, 2014
IN THE COURT OF MS. ANKITA LAL: METROPOLITAN MAGISTRATE01:
MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI
STATE VS. SUNIL & ANR.
FIR No. : 452/2009
U/S : 356/366/354 IPC
PS : Sarojini Nagar
Case ID : 02403R0415222009
JUDGMENT
a) Sl. No. of the case : 5/693 b) Date of commission of offence : 18.10.2009 c) Date of institution of the case : 05.12.2009 d) Name of the Complainant : Ms. Lissa
e) Name & address of the :1. Sunil Kumar S/o Sh. Kishan
accused persons R/o H. No. B83, and B85,
DDA Flats, Garhi, East of
Kailash, New Delhi.
2. Akashdeep @ Hani S/o
Sh. Daleep, R/o A161, Double
Storey, DDA Flats, Garhi, East
of Kailash, New Delhi.
f) Offence complained of : 365/366/354/323/506/34 IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 05.11.2014.
i) Date of Judgment : 15.12.2014.
j) Final Order : Acquittal.
BRIEF STATEMENT OF REASONS FOR DECISION:
1. In brief, the allegations are that on 18.10.2009, at about 7:30pm when FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 1 of 15 complainant was returning home from her place of work i.e Ashoka Hotel, Chanakaya Puri, New Delhi on foot, at the round about of Africa Avenue, Near Netaji Nagar, New Delhi, one person who was sitting besides the driver of a car (Maruti Van) bearing No. DL8CC5226, came near to her and asked "Can I drop You". She further alleged that he was in drunken condition. She said "No" and starting walking towards Bus stand. But, the accused persons started following her and suddenly, both accused persons came down and held her hand and tried to drag her inside the car by pulling the hairs of the complainant. She further alleged that when she shouted, they threatened her to kill and she was completely scared. She further alleged that to save herself she shouted, due to which public persons gathered at the spot and caught hold of one person and the other accused person fled away from the spot. She further alleged that public persons present at the spot had beaten and apprehended one of the accused person and damaged his Maruti Van. She was not taken for medical examination as she refused the same and FIR was registered on the basis of her statement.
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 05.12.2009. 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 365/354/506/34 IPC was made out against both the accused persons and charge was framed FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 2 of 15 against them to which the accused persons pleaded not guilty and claimed trial.
5. In order to prove its case, 12 witnesses were examined by the prosecution. Out of 12 witnesses, one is Ms. Veena Rani, Ld. JSCC/ASCJ, (S.E), Saket Courts, New Delhi, 7 are the public witnesses, and remaining 4 are police witnesses.
Public witness:
6. The four public witnesses examined by the prosecution are PW1 Pritpal Singh, PW2 Devender Singh, PW3 Jaspreet Singh, PW4 Ankleshwar Nath, PW5 Vicky, PW6 Ashok Kumar and PW7 Rajender Singh. PW10 Ms. Veena Rani, Ld. JSCC/ASCJ, was formal witness.
7. PW1 Pritpal Singh had deposed that he had purchased one Maruti Van bearing No. DL8CC5226 from Mr. Sethi Saab for a sum of Rs.68,000/ and after two months he had further sold the above said vehicle to one Devender who was his neighbour, vide delivery receipt Ex.PW1/A. He further deposed that he had handed over the documents of vehicle to IO vide seizure memo Ex.PW1/A. He further deposed that Devender Singh further sold that vehicle to Sh. Krishan who works in Delhi Jal Board and his son, namely, Sunil used to drive the above said vehicle. Ld. Defence counsel was given opportunity to cross examine the witness. He was cross examined as nil.
8. PW2 Devender Singh had deposed that he had purchased Maruti car bearing No. DL8CC5226 from one Pritpal for a sum of Rs.74,000/. Thereafter, in the year 2009 he had sold the above said car to the father of FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 3 of 15 accused Sunil for sum of Rs.60,000/. He further deposed that he had produced the written slips to the police vide seizure memos Ex.PW2/A and Ex.PW2/B. Ld. Defence Counsels were given opportunity to cross examine the witness. He was cross examined as nil.
9. PW3 Jaspreet Singh, had deposed that he was running a car sale and purchase business at 37, Krishna Market, Lajpat NagarI, New Delhi. He further deposed that he had purchased one Maruti Van vehicle bearing No. DL8CC5226 for a sum of Rs.55,000/ and thereafter, sold the same to one Pritpal Singh for a sum of Rs.68,000/ vide delivery report Ex.PW3/A.
10. During cross examination by the Ld. defence counsels, the witness has stated that he had not applied for transfer of the ownership of the car in his name before the concerned authority. He further deposed that he does not know Pritpal Singh personally and voluntarily stated that he sold the said vehicle through one Satish Kumar. He further admitted that name of the witness and buyer under his signature is not mentioned in the delivery receipt. He further admitted that photograph of the purchaser is not pasted in the receipt Ex.PW3/A and voluntarily stated that either the photograph or ID proof of the owner is required. He denied other formal suggestions put to him.
11. PW4 Ankleshwar Nath, deposed that on 2nd next day of Diwali of year 2009, he was coming from Ashoka Hotel side and going towards Sarojini Nagar, and when he reached at round about of Leela Palace Hotel, he saw that 2022 persons gathered there. He further deposed that they were FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 4 of 15 beating one person and one Maruti Van in damaged condition was parked there and one girl who appeared to be northeastern and aged about 2022 years, was weeping. He further deposed that he came to know that accused was trying to drag that girl inside the said Maruti Van. When she raised the alarm, accused was apprehended by the public persons and was beaten by them. He further deposed that when he saw inside the said van there were empty bottles of liquor and glasses lying inside the van. He also stated that the public persons told him that the accused was accompanied with other persons, who succeeded to ran away and he called at 100 number.
12. During cross examination by the Ld. defence counsel, the witness has stated that he does not remember whether he had told the police that there were 2022 persons present at the spot and girl was aged about 2022 years and appeared from NorthEastern, or that empty bottles of liquor and glasses were lying in the car and he apprehended the accused. But, again said that he had told the said facts to the police. He further deposed that on the day of incident, he was not coming from his office, he was coming on his own car bearing no. DL3CM3131. He further deposed that he cannot tell the colour of the said Maruti Van, however, it was of dark colour and the car was totally damaged. He further deposed that he called the police from his mobile number and police reached at the spot after 20 minutes and he handed over the accused to the police persons. He further denied formal suggestions put to him.
13. PW5 Vicky deposed that he does not remember the exact date. He further FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 5 of 15 deposed that he had gone to Lajpat Nagar to meet his relative. He further deposed that accused persons told him to drop at his house in their Maruti Van, whose number he does not remember. He further deposed that he went alongwith them and they dropped him at his house. Subsequently, he was declared a hostile witness and was cross examined by Ld. APP for State. In the said crossexamination he admitted that the date was 18.10.2009. He denied that he had gone to Lajpat Nagar to meet accused Akashdeep and Sunil. He denied that he had taken liquor alongwith accused persons. He stated that accused Sunil was driving the van and admitted that they dropped him at Netaji Nagar, Cement Godown at about 7:30pm. He denied having been won over by accused persons. Ld. Defence Counsel were given opportunity to cross examine the witness. He was cross examined as nil.
14. PW6 Ashok Kumar (Record Clerk, Transport Authority), had deposed that he had brought the certified copy of particulars of the vehicle i.e. Maruti/Omni bearing No. DL8CC5226 vide Ex.PW6/A. Ld. Defence Counsel were given opportunity to cross examine the witness. He was cross examined as nil.
15. PW7 Rajender Singh (Record Clerk, AIIMS, Trauma Centre) had deposed that he had brought certified copy of MLC, treatment record and discharge slip of accused Sunil prepared by Dr. Sahida Anjuman Siddiqui Mark A1 to A3. He further submitted that the certified copy of joining of Dr. Sahida Anjuman Siddiqui is Mark A4, on the basis of which he identified the handwriting and signature of the doctor concerned. FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 6 of 15
16. During cross examination by the Ld. defence counsel, the witness has stated that he identified the signature of Dr. Sahida Anjuman Siddiqui on the basis of his joining record. The witness admitted that Dr. Sahida Anjuman Siddiqui did not prepare the MLC of accused Sunil Kumar in his presence.
Police Witness:
17. PW8 Ct. Yogesh, had deposed that on 18.10.2009, he was on emergency duty and at around 8:05am, upon receipt of DD No.27A (Mark A), he alongwith IO/SI Sanjeev Mandal went to spot i.e MBlock, Sarojini Nagar, New Delhi where one vehicle Maruti Van bearing No. DL8CC5226, Green Colour was found in damaged condition and one girl was also present there and IO recorded her statement. The witness further deposed that he alongwith IO went to the hospital where accused Sunil was arrested after his interrogation and his personal search was conducted vide Ex.PW8/B and Ex.PW8/C. The witness further deposed that accused took them to H. No.161, DDA Flats, East of Kailash, Lajpat Nagar, New Delhi and on his pointing out, coaccused Akashdeep was arrested and personal search was conducted vide Ex.PW8/D and Ex.PW8/D.
18. During cross examination by the Ld. defence counsel, the witness has stated that the complainant had given her statement in English, which was recorded by the IO. The witness has stated that he took rukka to PS and handed over the same to concerned D.O whose name he could not recall. The witness has stated that accused Sunil was arrested at the Hospital and his MLC was prepared by concerned doctor. He further denied all FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 7 of 15 formal suggestions put to him.
19. PW9 HC Ashok Kumar, had deposed that on 18.10.2009 he was posted as HC at PCR, South Zone as Incharge of Eagle9, PCR Van alongwith driver HC Ramesh and one Gunman and he received a call from Control Room regarding some person trying to rape one girl. He further deposed that he alongwith staff went to the spot where complainant Lissa met them and one persons was found in injured condition to whom public persons had beaten.
20. During cross examination by Ld. defence counsel, the witness has stated that they reached at spot at about 7:59pm and they did not find any external injuries on the body of accused. He further deposed that one Maruti Van of white colour bearing No. DL8CC5226 was found at the spot and glass of the vehicle were broken and the accused was standing near the vehicle. He further deposed that complainant was not taken for medical examination as she was not having any injury. He further deposed that IO did not record his statement in the present case. He further denied other formal suggestions put to him
21. PW10 Ms. Veena Rani, Ld. JSCC/ASCJ, Saket Courts, New Delhi deposed regarding an application marked to her on 24.10.2009, by Ld. Link MM Sh. S.P.S. Laler for conducting TIP proceedings of accused Akash Deep vide Ex.PW10/A and she conducted TIP proceedings vide Ex.PW10/B and Ex.PW10/C. Ld. Defence Counsel were given opportunity to cross examine the witness. She was cross examined as nil.
22. PW11 SI Sanjeev Mandal is the IO of the case, who deposed that on FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 8 of 15 18.10.2009 he was posted as SI at P.S. Sarojini Nagar and after receiving DD No.27A (MarkA), he alongwith Ct. Yogesh went to the spot i.e. Near MBlock, Bus Stop, Sarojini Nagar, Africa Avenue Road, New Delhi, where complainant Lissa and accused Sunil met them. He further deposed that accused Sunil was in injured condition and one Maruti Van bearing No. DL8CC5226 was stationed in damaged condition. He further deposed that on enquiry he came to know that accused Sunil was beaten up by public persons. He further deposed that he recorded statement of complainant Ex.PW11/A and he also prepared tehrir Ex.PW11/B. He further deposed that accused Sunil was sent to Trauma Centre for his medical examination through PCR Van. He further deposed that he prepared site plan Ex.PW11/C and also seized Maruti Van and documents of vehicle vide Ex.PW8/A and Ex.PW11/D. He further deposed that he arrested the accused and conducted his personal search vide memos Ex.PW8/B and Ex.PW8/C. He further deposed that he recorded disclosure statement of accused Sunil Ex.PW11/E and on the basis of disclosure statement of accused Sunil, coaccused Akash Deep was arrested and his personal search was conducted vide memos Ex.PW8/D and Ex.PW8/E. He further deposed that he also recorded disclosure statement of accused Akash Deep, which is Ex.PW11/F. He further deposed that he moved an application for TIP of accused Akash Deep but accused Akash Deep denied to participate in the TIP proceedings. He further deposed that he collected documents of vehicle bearing No. DL8CC5226.
23. During cross examination by Ld. defence counsel, the witness has stated FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 9 of 15 that he received DD No.27A at PS by Duty Officer but he does not remember the name of the said Duty Officer. The witness has further stated that no details of accused persons were given in the DD entry. The witness has further stated that he asked public persons to join investigation but nobody came forward to become witness. The witness has further stated that complainant was not accompanied with any relative or friend and he recorded statement of complainant in his own handwriting. The witness has further stated that complainant was not medically examined as she was not willing for the same. He mentioned that the complainant informed him that she was employed at Ashoka Hotel, but admitted that he did not join any witness from Ashoka Hotel. The witness has also stated that he does not remember on which part/parts of body accused Sunil sustained injury. The witness has further stated that he did not mention the PCR Officials as witness. The witness has further mentioned that the accused was taken into custody from the hospital at around 2:00am. The witness has further stated that he does not remember whether any public person was present at the time of arrest of coaccused Akash Deep. He further denied other formal suggestions put to him.
24. PW12 ASI Satya Bir Singh has only proved the registration of FIR No. 452/09, P.S. Sarojini Nagar, Ex.PW12/A. He was not cross examined.
25. Thereafter, PE was closed. Statements of accused persons U/s 313 Cr.P.C r/w sec. 281 Cr.P.C. were recorded wherein both the accused persons have stated that the complainant had made false accusation FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 10 of 15 against them. They further stated that they have been falsely implicated in this case. No defence evidence was led by any of the accused persons.
26. Ld. APP for the State had argued that all the prosecution witnesses have corroborated themselves in material particulars, and therefore, both the accused persons should be held guilty for the alleged offences.
27. Counsel for the accused on the other hand argued that in the present case the complainant failed to appear before the court to depose. It is further submitted that all the other witness, except PW4 and 5, are only formal witnesses. It is also argued that even from the deposition of PW4 and PW5 it is clear that they were not eye witnesses to the incident. He had argued that PW4 is only a hearsay witness and he had not deposed anything incriminating against the accused persons and PW5 is a hostile witness. In view of these submissions, he has argued that the prosecution has failed to prove its case beyond all reasonable doubts and, therefore, accused persons should get the benefit of doubt and should be acquitted for the offences charged against them.
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 365/354/506/34 IPC
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 FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 11 of 15 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 365 of IPC provides as under:
Kidnapping or abducting with intent secretly and wrongfully to confine person. ― Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Further, Section 506 of IPC provides as under:
Punishment for criminal intimidation. ― Whoever, commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be o cause death or grievous hurt, etc.― And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or {punishment for life}, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
31. Now, from the material available on record it is clear that complainant Ms. Lissa did not appear before the court to give her evidence. There were several efforts made by the court to get summons served upon PW complainant. However, whereabouts of the complainant could not be FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 12 of 15 traced out and process issued to the complainant had returned back as unserved. Therefore, in the absence of deposition of the complainant herself, the allegations made in the complaint could not be sufficiently corroborated. As regards deposition of PW1, PW2, PW3 and PW6 is concerned, the said witnesses have only testified regarding the ownership of the vehicle i.e. Maruti Van bearing No. DL8CC5226, which was the alleged vehicle in which accused persons were traveling on the day of the incident. Thus, their depositions is not material.
32. Further, from a bare perusal of deposition of PW4, it is clear that he is only a hearsay witness. He had reached the spot of the incident only after seeing certain public persons gathered there. He had stated that he had witnessed the public persons beating one of the accused person. He also mentioned that the Maruti vehicle was parked in a damaged condition and one girl aged about 2022 who appeared to be NorthEastern, was crying alongside. He had stated that from the public persons, he had gathered that accused persons whom he correctly identified in the court, had tried to drag the said girl inside the Maruti Van whereupon she had raised alarm and accused Sunil was apprehended by the public persons and was beaten up and coaccused had fled away from the spot. He also mentioned that he had seen empty alcohol bottles lying inside the van. It is clear from his deposition that he had himself not witnessed the incident which took place with the complainant. Therefore, he merely becomes a hearsay witness and his testimony would become a weak piece of evidence and would not be sufficient to corroborate the allegations made FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 13 of 15 in the complaint.
33. Moreover, from a bare perusal of deposition of PW5, it is clear that he had not stated anything incriminating against the accused persons even when he was cross examined by Ld. APP for the State. Since he had turned as a hostile witness, his deposition is not a reliable piece of evidence. PW7, PW8, PW9, PW10 and PW12 are formal witnesses. Their testimonies also would not be sufficient to corroborate the allegations made in the complaint. PW11 is the IO of the case. He had mentioned in his deposition that when he reached at the spot, accused Sunil and complainant Lissa were found at the spot. He also stated that accused Sunil was in an injured condition as he was beaten up by public persons. In his cross examination he admitted that the spot of the incident was residential area but he did not join any public or independent witnesses. He also admitted that there was no physical injury found on the person of the complainant and therefore, the complainant herself declined for any medical examination. The remaining part of his deposition is only formal in nature.
34. In the totality of the facts and circumstances of the present case, since the complainant had not appeared before the court to testify and corroborate the allegations made by her and also since there was no opportunity for the defence to cross examine her upon the charges levelled against the accused persons, therefore, in my considered view the prosecution has miserably failed to prove the charges against the accused persons. The testimonies of formal witness itself would be of no relevance to prove the said charges. Further, PW4 being only a hearsay witness, as observed FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 14 of 15 above, his testimony is also a very weak piece of evidence which again does not support the charges framed against the accused. PW5 being declared as a hostile witness, his evidence is completely an unreliable piece of testimony. Thus, in view of the said observations, I am of the view that the accused persons should get the benefit of doubt. As none of the ingredients of the charges framed against the accused persons have been proved, they are liable to be acquitted of the said charges. Both the accused persons are acquitted for the offences under section 365/354/506/34 IPC. Their bail bonds and surety bonds are cancelled.
Sureties are discharged. Endorsement, if any be cancelled and documents be returned. File be consigned to record room.
Pronounced in open court
on 15th December 2014 (ANKITA LAL)
M.M01 Mahila Court (South),
Saket, New Delhi
FIR NO. 452/2009 STATE VS. SUNIL & ANR PS SAROJINI NAGAR Page 15 of 15