Delhi District Court
Fir No. 834/2014 State vs . Om Prakash; Ps Kalkaji Page No. 1 Of 17 on 8 August, 2018
Ms. Sheetal Chaudhary Pradhan, Metropolitan Magistrate
(Mahila court (SouthEast), Saket Courts, New Delhi.
FIR No. 834/2014
PS: Kalkaji
U/s :354A/506/509 IPC
State v. Om Prakash
JUDGMENT
Date of institution : 19.03.2016
Cr.C No. : 90344/2016
Name of the complainant : As per chargesheet.
Name & address of the accused : Om Prakash
persons S/o Late Sh. Ganga Ram
R/o H.No.414, Shiv Colony,
District Palwal, Haryana.
Offence Complained of : U/s 354A/506/509 IPC
Offence Charged of : U/s 354A/506/509 IPC
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date of arguments : 06.08.2018
Date of announcing of order : 08.08.2018
BRIEF FACTS:
1. Brief facts of the case are that the complainant has stated in her complaint dated 09.07.2014 that she used to have her rehri near Kamal Mandir road. On 06.07.2014 at around 4.00 PM, MCD official FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 1 of 17 namely SI Om Prakash came to her rehri and started threatening her to remove the same failing which, she would be challaned and her rehri would be seized. Upon hearing the same, complainant requested the aforesaid official not to proceed against her since she and her family was dependent on her earnings. Thereafter, aforesaid official offered Rs.1 lac to the complainant and also asked the complainant to have physical relation with him and also asked the complainant to contact him on his personal number. Thereafter, complainant also objected to the aforesaid behaviour of the accused and he left the spot. Thereafter, complainant objected the accused for visiting her rehri and each time accused advanced obscene sexual overtures to the complainant and demanded sexual favours and also threatened the complainant. Being fed up with the aforesaid behaviour, complainant filed the complaint.
2. Pursuant to this complaint dated 09.07.2014 against the accused, FIR was registered on 15.09.2014 and the matter was investigated. A cancellation/closure report was filed in the court on 19.03.2016, however, court took cognizance of offence and summoned the accused Om Prakash on 07.01.2017. Charge was framed against accused vide order dated 17.08.2017 for the offence punishable U/s 354A/506/509 IPC. Accused pleaded not guilty and claimed trial and accordingly, prosecution evidence was lead.
3. In order to prove its case, prosecution has examined seven witnesses during trial. Statement of accused was also recorded u/s 294 CrPC in which he admitted the copy of FIR, report of Nodal officer, FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 2 of 17 rukka, statement of witnesses Suresh Chand Sharma, Rajender Singh, Dharamvir, Subhash Chand recorded u/s 161 CrPC and the same were Ex.A1 to A7 and corresponding witnesses were dropped from the list of witnesses.
PW1 Ved Prakash (brother of accused) deposed that the accused was her elder brother and on 06.07.2014 there was a function of 'Godbharai' of her daughter Mansi at her house and on that day accused Om Prakash was present at her house from 6.00 AM to 7.00 PM.
Thereafter, the witness was crossexamined Ld APP for the State as he did not support the story of prosecution and was declared hostile.
Opportunity to crossexamine the witness was granted to the accused but he did not question anything from the witness.
PW2 Girdhari Lal (relative of the accused) deposed that the accused was his relative and on 06.07.2014 there was a function of 'Godbharai' of the niece of the accused namely Mansi and on that day accused Om Prakash was present at the said function.
Thereafter, the witness was crossexamined Ld APP for the State as he did not support the story of prosecution and was declared hostile.
Opportunity to crossexamine the witness was granted to the accused but he did not questione anything from the witness.
PW3 Ramesh Kumar (ASI in MCD office, Lajpat Nagar) deposed that on 03.07.2014, he was posted as ASI in MCD Office Lajpat Nagar. On that day he alongwith Inspector Om Prakash FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 3 of 17 Sharma (accused) were on inspection duty in the area of Kalkaji near Lotus Temple and they were directing all hawkers and rehriwalas near the Lotus Temple not to throw silt or garbage on the road and whoever found throwing the silt/garbage on the road, challan would be prepared against them. During that period, one rehriwala namely Mahipal was also found throwing silt or garbage on the road. Upon which challan was prepared against him by Inspector Om Prakash. Upon which Mahipal got annoyed and started to threat them that he will file a false case against them stating "tumne humara challan kiya hai hum tumhe dekh lenge." Thereafter, they came back from the spot.
Thereafter, the witness was crossexamined by Ld APP for the State and deposed that he did not know regarding the incident happened on 06.07.2014 of the present case. He did not make any complaint regarding the aforesaid behaviour of one Mahipal who had obstructed to perform their public duty as mentioned in his examination in chief. It was wrong to suggest that he was deposing falsely to save the accused in the present case and no such incident was happened on 03.07.2014 due to which he did not make any complaint to the police or any superior officer regarding the fact of obstruction made by Mahipal in performing their public duty.
During crossexamination PW3 deposed that Mahipal was running chhole bhatura stall on footpath of the road on 3.7.2014. It was correct that Mahipal Singh had filed Rs.300/ for the challan which was prepared by Inspector Om Prakash. At that time, he was deputed with Inspector Om Prakash and after 3.7.2014, they had not visited in that area for several months. Thereafter, copy of challan FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 4 of 17 prepared by Inspector Om Prakash dated 3.7.2014 attached with judicial file was shown to the witness to which he admitted that the said challan was prepared against one Mahipal Singh in his presence, which was now Mark D1.
PW4 complainant (as per chargesheet) deposed that on 06.07.2014, at around 4 PM, while she was running a chole Bhatura stall on her dairy at gate no. 2 of Kamal Mandir, situated near Kalkaji Mandir, New Delhi, one MCD inspector, namely Om Prakash came there and started threatening her by saying that "ye rehri tune kisse puch kar lagai hai, ye rehri hatao nahi to chalan kar doonga aur teri rehri band kar doonga." She requested him that there was only one source of income from the rehri for her livelihood and for her family members. Thereafter, accused Om Prakash told her as to why she was running a rehri and he will give her Rs.1 Lakh if she agreed to have a physical relation with him. He also insisted that he was a MCD inspector of that area and he used to make a challan of the shop of that area and that he had no scarcity of money and he further insisted her to have physical relation with him and demanded her mobile number as he wanted to talk with her at any point of time. Accused Om Prakash further told her that if she agreed to have physical relation with him then he will give money for which she had no scarcity of money and said "Mere sath sharirik sambandh bana lo, me tujhe paise ki koi kami nahi ane doonga". After hearing the same, she got angry and told him to leave her rehri and further directed him not to come again on her rehri as he was not a good person. At that time accused left the spot and again on the same day he again came on her FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 5 of 17 rehri and he told her that if she would not agree to do the same as suggested by him, he will take her with him in a vehicle from the spot and he further threatened her by saying that "tu nahi janti ki mujhe kitna power hai". Thereafter, accused came on her rehri several times and he used to threatened her by saying that "tujhe tab pata chalega mera power jab kisi din me aunga aur tujhe le kar jaunga". He further told her that he would not allow her to put rehri on that place at any cost saying that "tu puri takat laga le tu mera kuch nahi bigad sakti". On the next day, accused Om Prakash came to her rehri and threatened her by saying that "sali mere sath sharirik sambandh nahi banaye to teri rehri nahi lagne doonga tab tujhe merio power ke bare me pata chalega". She had made a complaint against accused Om Prakash in police post Nehru Place in PS kalkaji which was ExPW4/A. On 29.07.2014, accused Om Prakash again came at her rehri and told her that "tumhari jaisi sunder nari ko rehri par kaam karna shobha nahi deta tum chaho to me tujhe 1 Lakh rupya doonga aur tujhe pakki dukan khula doonga tum apna phone number do baki baat phone par karunga". He further threatened her if she would not agree to do as suggested by him, he will issue a challan against her and take her in a vehicle. She again stated that the date was 29.06.2014 in place of 29.07.2014 and the same was objected by Ld. Defence Counsel as the date has been suggested by the Ld. Counsel for the complainant. Police official did not take her complaint from 06.07.2014 to 08.07.2014. On 09.07.2014, police official had taken her complaint when she went there along with two three ladies. She had given her statement u/s 164 CrPC and the same was ExPW4/A. FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 6 of 17 During crossexamination PW4 deposed that she was not educated. To her knowledge different months have different number of days and they may be 28, 30, 32. She had given her complaint on 07.07.2014, 08.07.2014, 09.07.2014 and 11.07.2014. It was wrong to suggest that accused had challaned her rehri. It was wrong to suggest that upon the said challan fine of Rs. 300/ was paid by her husband in the court of special MCD. She did not know the name of the police official to whom the complaints were given on the aforesaid dates, however, her husband accompanied her to the police station. The aforesaid complaints were given at PS Kalkaji in writing but she did not know the names of police officials. The complaints were in typed form. The same was got typed at Nehru Place. Her FIR was registered on 09.07.2014. It was wrong to suggest that the FIR was not got registered on 09.07.2014. She had not visited any other authority to file her complaint except at the police station. She was given the copy of FIR after 3 months on 15.08.2014. She used to visit police station from 09.07.2014 to 15.08.2014 to know about her complaint. Her statement was recorded by the police on 09.07.2014. and again said that her statement was recorded by the police after two and a half months of registration of FIR. Her statement was recorded in the court but she did not remember the date of the same but she was accompanied by her husband. She did not have any property or legal documents with her to show her legality of possession for putting her rehri on the spot. It was correct that the rehri was placed next to the footpath. It was correct that the footpath was a government property. It was wrong to suggest that she was challaned by MCD even on prior occasions for putting the rehri. It was correct that she had been challaned prior to the month on which the incident occurred by the MCD. She did not know if she had deposited the fine whenever she was challaned by MCD at Lajpat Nagar. Her husband used FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 7 of 17 to pay the fine amount at the MCD office. She was read over her complaint by the typist. She had narrated in her complaint to the typist that on 29.06.2014 accused had approached her and asked her as to why she had placed the rehri next to the footpath. She had four children. She could not tell the date of birth of her children and she could not tell the date of which the festival of Holi or Diwali had been celebrated in the year 2014. Her husband's rehri was never challaned in the month, when the incident occurred. They had two rehris, one is her, situated at gate no.2, and of her husband which was situated at gate no.1 near Kamal Mandir. The rehri of her husband was on footpath. She was challaned often but was not challaned during that month. She did not remember whether she had mentioned gate no. 2 in her complaint or not on which the FIR registered. It was wrong to suggest that her husband was challaned on 03.07.2014 where he was challaned for Rs.300/ and had paid the same on 07.08.2014. It was wrong to suggest that she alongwith her husband concocted a false story against the accused as he challaned their rehri although he was not present at the spot on 06.07.2014. She did not know whether statement of her husband was recorded by the police or not. Police had recorded her statement only once. It was wrong to suggest that she had falsely implicated the accused at the instance of her husband and her complaint was false and fabricated. It was wrong to suggest that she had falsely implicated the accused since he had challaned her rehri during the discharge of his official duty.
PW5 Mahipal (husband of complainant) deposed that he was running a Chola Bhatura stall on a rehri for last 25 years. In the FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 8 of 17 year of 2014, he was running a Chola Bhatura stall at gate number1 of Lotus Temple and his wife was running a Chola Bhatura Stall at gate number2 of Lotus Temple. He did not remember the exact month however it may be 6th June 2014. He came to know from her wife/ complainant that one MCD inspector namely Om Prakash came at her stall and he demanded her mobile phone number saying that he wanted to have physical relation with her and he threatened her that if she would not ready to have relation with him, he would not allow her to put her rehri at that place as he was MCD inspector of that place. On the same day, he went to PS alongwith his wife/complainant to made complaint against accused but they were not ready to lodge complaint against him. On the next day accused Om Prakash again came at the rehri of his wife/ complainant and he again threatened her saying that "yahan rehri mat laga" and the said fact was told to him by his wife when he reached his house at 4 PM. He again went to PS alongwith his wife to lodge a complaint against accused Om Prakash but police did not record his complaint. After twothree days, he went to PS with a written complaint to PS alongwith his wife. The incident of misbehaving with his wife did not occur in his presence as at that time he was engaged on his rehri at gate number2 at Lotus Temple. He did not have knowledge prior to the present incident occurred on 6th July 2014 that any misbehave was done with his wife by accused Om Prakash.
During crossexamination by Ld. APP for the State, PW5 deposed that it was correct that on 29.06.2014, he came to know from his wife that on that day one MCD inspector Om Prakash came FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 9 of 17 to her rehri and he was demanding her mobile phone number and she refused to give her mobile number to him. It was correct that on that day, he did not make any complaint due to nonseriousness of the incident. It was correct that the incident occurred on the day of 6 th but he did not remember whether it was 6 th June 2014 or 6th July 2014. He could identify accused Om Prakash as he used to perform his duty as a MCD inspector in the area of Lotus Temple.
During crossexamination PW5 deposed that he was illiterate. He was running his rehri at the same place. It was correct that the place where he used to put his rehri was not his own land rather it was a Government land being footpath of the road. It was wrong to suggest that Om Prakash had made a challan against him for putting rehri on footpath without taking permission from MCD concerned and for throwing wastage from his shop on the road on 03.07.2014. It was wrong to suggest that he did not pay amount of Rs.300/ in MCD court on 07.08.2014 for a challan issued against him on 03.07.2014. Complaint Ex.PW4/A was got typed by him through some children. He had read the complaint Ex.PW4/A before lodging the same to PS. Police officials did not record his statement at any point of time. It was correct that statement of his wife/complainant was not recorded by the police in his presence. It was also correct that police had not obtained signatures in any paper of his and his wife. He did not sign any document at the police station. The incident occurred in the year 2014. He had 4 children. His eldest son was aged 24 years, second child aged 2021 years, third child aged 17 years and 12 years respectively. He did not know the exact date of birth of his FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 10 of 17 children. He did not meet the police official in respect of the present matter and voluntarily stated that he was not allowed. They had filed the present complaint with the police after 23 days of the incident. It was wrong to suggest that as accused Om Prakash challaned his rehri on 03.07.2014 and to achieve his ill motives not to remove his rehri from there, he alongwith his wife filed the present complaint against accused.
PW6 Sh. Ravikant (Special MM, MCD, Central Zone, Lajpat Nagar) deposed that in the month of July, 2014, he was posted as Special MM in MCD Central Zone, Lajpat Nagar. On 07.08.2014, one challan issued against Mahipal dated 03.07.2014 was put before his court. During the course of proceedings, notice was served to Mahipal to appear on 18.07.2014. On 07.08.2014, Mahipal appeared before the court and he had pleaded guilty for the offence mentioned in the aforesaid challan u/s 357/392 of DMC Act and fined Rs.300/ which was paid by him. Thereafter, photocopy of the order of concerned court attached with judicial file was compared with the original order brought by the witness and the same was Ex.PW6/A (OSR).
Opportunity to crossexamine the witness was granted to the accused but he did not question anything from the witness.
PW7 SI Sanjeev Kumar (IO) deposed that on 15.09.2014 he was posted as SI at PS Kalkaji. On that day present case was marked to him for investigation. He made rukka on the basis of complaint which was Ex.PW7/A and handed over to duty officer for registration of FIR. The FIR was got registered and further investigation FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 11 of 17 conducted by him. He recorded statement of complainant and her husband u/s. 161 Cr.PC. He also got recorded statement of complainant u/s. 164 Cr.PC. Thereafter, he interrogated the accused Om Prakash at Nehru Place police post. He moved an application u/s. 91 Cr.PC to the concerned Nodal Officer, Reliance Communication for CDR of mobile No. 9313577406. The said application was Ex.PW7/B. Thereafter, he collected CDR details of mobile number 9313577406 from concerned company Reliance Communication running in 31 pages containing CAF which was Ex.A2 Thereafter, he got recorded statement of other witnesses u/s 161 Cr.PC. After investigation, it was revealed that presence of accused did not find at the alleged place. Thereafter, he also collected copy of MCD challan from Special M.M. MCD, Lajpat Nagar. Thereafter, he filed closure report in the Court.
During crossexamination PW7 deposed that it was correct that rehri of complainant was challaned on 03.07.2014. It was also correct that he verified the presence of accused from Palwal and recorded statement of witnesses there. It was also correct that as per CDR of mobile of accused, presence of accused was found at Palwal. It was correct that the complainant was running a rehri for which she could not produce any license for the same on that place rather she showed some old challan of MCD. It was correct that the complainant was running her rehri at footpath. It was correct that husband of complainant Mahipal was also fined for Rs.300/ by Special M.M. MCD.
FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 12 of 17
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.
5. Accused persons did not examine any witness in their defence.
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 is liable to be convicted for the offences charged.
7. However, on the other hand Ld. Counsel for accused had argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt and therefore, he is liable to be acquitted. It is argued that in the present matter the complainant being the only eye witness and the victim in the present matter have not corroborated the story of prosecution and has stated facts beyond her complaint Ex.PW1/A, during her statement recorded before the court and her testimony, which casts a shadow on the veracity of the witness. Further, PW1, PW2, PW3 and PW5 have been declared hostile in the present matter by the prosecution. Further, witnesses namely Suresh Chand Sharma, Rajender Singh, Dhambir, Subhash Chand have also stated during the statement to the IO recorded u/s 161 CrPC that no such alleged incident had taken place. Further, PW3 in an Inspector from MCD, he was accompanying the accused on 03.07.2014 and has stated that when accused had challaned the husband of complainant, he had threatened the accused with dire consequences and therefore, FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 13 of 17 false implication of the accused cannot be ruled out. It has been argued that the testimony of both the witnesses that is PW4 and PW5 is not reliable as they have not corroborated the story of prosecution and the same is contradictory to each other. Further, PW5 being the husband of complainant is only a hearsay witness and was not present at the time of alleged incident. It is further argued that the ingredients of offence charged also does not stand proved and therefore, the 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 seven witnesses among which PW4 was the complainant and PW5 was the husband of the complainant and all remaining witnesses examined by the prosecution were formal in nature. In the present matter, the star witness of the prosecution is the complainant. However, if we carefully peruse her complaint Ex.PW4/A, the witness has not supported her statement. There are glaring contradictions in the testimony of PW4 and PW5 and no corroboration in the story of the two prime witnesses of the prosecution. Further, there is vast improvement in the testimony of the complainant and PW5 and both the witnesses have even failed to narrate the manner in which the incident occurred and has not even stated the date or month of the incident. PW4/complainant has admitted during her crossexamination that the place of incident was a crowded place and public persons FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 14 of 17 were present being a market however, none of the aforesaid public persons were cited as witnesses by the prosecution. Further the complainant failed to place on record any of her complaint allegedly dated 07.07.2014, 08.07.2014, 09.07.2014 and 11.07.2014. PW5 has also stated that he had never appeared before the IO and his statement was never recorded.
9. In the present matter, accused has been charged for the offence u/s 354A/506/509 IPC, however, none of the ingredients of the aforesaid offences have been proved by the prosecution against the accused.
10. In the present fact and circumstances, accused cannot be held liable for any of the offences charged. It is seen that there are material contradictions in the testimony of all the witnesses. The facts stated by the victim/PW4 in her original complaint and in the statement recorded u/s 164 CrPC, as compared to their testimony before the court are contradictory to each other and there is no corroboration. Further, there are several contradictions in the testimony of all the witnesses who were present on the place of incident and were the victims of the incident. None of the witnesses have stated with clear certainty as to the role of the accused and it is the complainant herself who has stated during her crossexamination that accused had not misbehaved or committed any offence with complainant in his presence. The prosecution witnesses that is PW1, PW2, PW3, PW5 were crossexamined by Ld. APP for the State as they had not supported the story of the prosecution in material aspects. The FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 15 of 17 complainant has failed to recite the exact role of accused with certainty or the manner in which the accused misbehaved with her or had committed an act of outraging her modesty or the exact abuses or filthy language used against her.
11. To bring home the guilt of accused, it was required to the prosecution to prove the case beyond reasonable doubt however, in the present matter, it was incumbent upon the prosecution to have examined an independent public witness alleged to be present on the spot to corroborate the incident as the same had occurred on an open road where there were several persons already present. However, none of the independent witnesses have been examined by the prosecution. In view of the above, it is difficult to rely on such contradictory testimonies of the complainant and other witnesses.
Reliance is placed on observation by Hon'ble High Court of Delhi in Raj Pal Vs. The State (N.C.T. Of Delhi), Crl Appeal no. 353/2000 (decided on 15.03.2013): "...Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness, would assume significance..."
12. Further, in the present matter the complainant has failed to disclose any such language or words or gesture used by the accused FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 16 of 17 which could reflect any intent to outrage the modesty of the complainant.
13. In view of the above discussion, it is concluded that the prosecution has failed to prove its case against accused beyond reasonable doubt. Accused Om Prakash is accordingly acquitted for offences U/s 354A/506/509 IPC.
Announced in the Open Court (Sheetal Chaudhary Pradhan)
on 08.08.2018 Metropolitan Magistrate02
(Mahila Court), SouthEast,
Digitally Saket, New Delhi.
signed by
SHEETAL
SHEETAL CHAUDHARY
CHAUDHARY PRADHAN
PRADHAN Date:
2018.08.08
15:31:24
+0530
FIR No. 834/2014 State Vs. Om Prakash; PS Kalkaji Page No. 17 of 17